Metfab, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 30, 2004

16-CA-023533 (N.L.R.B. Sep. 30, 2004)

JD(ATL)–52–04
Houston, TX

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

METFAB, INC.
Employer-Petitioner

and Case 16–RM–763

SHEET METAL WORKERS LOCAL
UNION NO. 54 Affiliated with
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION
Union

METFAB, INC.
Cases 16–CA–23533
and 16–CA–23603
and 16–CA–23672
SHEET METAL WORKERS LOCAL
UNION NO. 54, AFL-CIO Afilliated with
SHEET METAL WORKERS INTERNATIONAL
ASSOCIATION

Roberto Perez, Esq., for the General Counsel.
William H. Bruckner, Esq., for the Respondent/Petitioner.
Patrick M. Flynn, Esq., for the Charging Party Union.

DECISION

Statement of the Case

MICHAEL A. MARCIONESE, Administrative Law Judge. The petition in Case No. 16-
RM-763 was filed by Metfab, Inc., the Employer/Respondent, on February 23, 2004.1 Pursuant
to a stipulated election agreement, approved on March 2, an election by secret ballot was
conducted among certain employees of Metfab, Inc. on March 26 to determine whether they
desired to be represented for the purposes of collective bargaining by Sheet Metal Workers
Local Union No. 54, AFL-CIO, affiliated with Sheet Metal Workers International Association (the
Union). 2 The tally of ballots served upon the parties following the election disclosed the
1 All dates are in 2004 unless otherwise indicated.
2 The stipulated unit included all employees of Metfab, Inc., engaged in sheet metal
fabrication and installation of sheet metal products working out of the employer’s office in
Houston, Texas, but excluding all other employees, including office and clerical employees,
professional employees, guards and supervisors as defined by the Act.

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following results:

Approximate number of eligible voters 14
Void ballots 0
Votes cast for the Union 5
Votes cast against participating labor organization 6
Valid Votes counted 11
Challenged ballots 3
Valid votes plus challenged ballots 14

The challenged ballots were sufficient in number to affect the results of the election. On
April 2, the Union and the Employer/Petitioner timely filed objections to the election. On the
same date, the Union filed the unfair labor practice charge in Case No. 16-CA-23533 alleging,
inter alia, conduct identical to that alleged in its objections. Additional charges were filed by the
Union on May 3 and May 28 in Case Nos. 16-CA-23603 and 16-CA-23672, respectively.

Following an investigation conducted by the Board’s Regional Director, an order
directing hearing issued on June 30, finding that the challenged ballots, and the objections filed
by both parties, raised substantial and material factual issues which may best be resolved on
the basis of record testimony at a hearing. In the same order, which was amended on July 30,
the Regional Director consolidated the challenge/objections hearing with a consolidated
complaint and notice of hearing that issued the same date based upon the unfair labor practice
charges filed by the Union. The consolidated complaint, which was amended on July 30, alleged
that the Respondent, Metfab, Inc., violated Section 8(a)(1) of the Act. On July 9, the
Respondent filed its answer to the consolidated complaint denying that it committed the unfair
labor practices alleged. The Respondent amended its answer to respond to the amended
complaint at the hearing.

The consolidated complaint, as amended, alleges that the Respondent violated Section
8(a)(1) of the Act in several respects, before and after the election. Specifically, the General
Counsel alleges that the Respondent, through shop foreman and admitted supervisor Randy
Davis, threatened employees on March 18 that the Respondent might have to close its doors if
employees voted in favor of union representation and, on March 25, offered to grandfather
employees into the Respondent’s benefits package in order to induce them to vote against
union representation. The complaint further alleges that the Respondent’s president and
admitted supervisor, S. Casey McGuire, offered employees improved benefits if they voted
against union representation during a power point presentation to the employees on March 19,
and created the impression of surveillance and interrogated employees during a one-on-one
conversation with an employee at a client’s facility on March 24. Finally, it is alleged that the
Respondent engaged in surveillance of union activities on May 27 by photographing union
representatives engaged in peaceful handbilling near the Respondent’s facility, and on May 28
summoned law enforcement authorities in an attempt to cause the arrest of these union
representatives.

Pursuant to notice, I heard these consolidated cases in Houston, Texas, on August 16
and 17. At the hearing, the Union withdrew its objections to the election and the parties
stipulated that one of the challenged voters, Roger Reid, was not eligible to vote in the election.
There remained for resolution the unfair labor practice allegations of the consolidated complaint,
the employer’s objections and the two challenged ballots. The General Counsel, the

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Respondent and the Charging Party filed post-hearing briefs on September 10.3 In its brief, the
Respondent withdrew its objections to the election, narrowing the issues even further. Having
considered the evidence offered at the hearing, including my observation of the demeanor of the
witnesses, and the arguments advanced by the parties at the hearing and in their briefs, I make
the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, is engaged in the fabrication and production of specialty
sheet metal products at its facility in Houston, Texas, where it annually purchases and receives
goods valued in excess of $50,000 directly from points outside the State of Texas. 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

A. Background

McGuire, an engineer by training, founded the Respondent in the summer of 1999 as a
custom sheet metal fabricator with clients primarily in the food processing industry. In addition to
the shop employees who fabricate the sheet metal products, the Respondent employees field
employees who install the products at customers’ sites. Before establishing his own company,
McGuire had worked for a union-signatory contractor in the same business. In 2000, after the
Respondent was awarded a big contract at the Maxwell House coffee plant, McGuire contacted
the Union because he needed workers for the job. After several meetings and telephone
conversations with Carl Cox, the Union’s Business Manager at the time who has since retired,
McGuire became a signatory contractor himself. The agreement McGuire signed, on April 25,
2000, initially bound the Respondent to a multi-employer collective-bargaining agreement
negotiated by the Union with the Houston Sheet Metal Contractors Association that was
effective through March 31, 2001. That agreement was superseded by a new collective-
bargaining agreement negotiated between the Union and the Association for the period April 1,
2001 to March 31, 2004. Although there was some testimony that the Respondent attempted to
get out of the new agreement in 2001, there is no dispute that the Respondent complied with
the terms of the 2001-2004 collective-bargaining agreement. There is also no dispute that the
3 On September 14, the General Counsel filed a motion to strike portions of the
Respondent’s brief. Specifically, the General Counsel sought to strike a footnote in which the
Respondent asserted that the charge in Case No. 16-CA-23603 was invalid because it did not
have a valid signature. The Respondent replied to this motion by letter dated September 16.
Although the Respondent stated that it did not wish to waste my time or the client’s money
responding to the motion, it did not disavow the claims made in the footnote to its brief. Having
considered the matter, I shall grant the General Counsel’s motion on the basis that any claim
that the charge is invalid has been waived by the Respondent’s failure to object at the time the
charge was introduced in evidence as part of the formal papers at the hearing or to otherwise
raise this issue in a timely manner. Moreover, the point raised by the Respondent’s footnote
would fail on the merits for lack of legal authority for the proposition that an attorney’s signature
“by permission” is invalid under the Board’s Rules and Regulations. Cf. International Ladies’
Garment Workers’ Union (Saturn & Sedran, Inc.), 136 NLRB 524, 527-530 (1962).

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Respondent’s contractual relationship with the Union was governed by Section 8(f), rather than
Section 9(a) of the Act.

On October 16, 2003, McGuire sent a certified letter to the chairman of the Association,
with a copy to the Union’s new Business Manager, Doug McGee, who had succeeded Cox in
January 2001, withdrawing the Respondent’s authorization for the Association to act on the
Respondent’s behalf. On December 24, 2003, McGuire sent a letter to McGee, with a copy to
the Association, notifying the Union of Respondent’s intent not to renew the collective-
bargaining agreement upon its expiration on March 31. Around the same time, McGuire held a
meeting with the employees who were covered by the collective-bargaining agreement to advise
them that the Respondent had decided to go in a different direction and not renew its contract
with the Union. According to McGuire, he told the employees he wanted everyone to stay but he
realized that, because of the amount of time many of them had in the Union, they might want to
leave. McGuire asked the employees to give the Respondent notice before leaving. According
to McGuire, he also told the employees that the Respondent would put in place a program of
benefits to replace those under the union contract after it expired. Although he admittedly did
not provide details of any new benefits, McGuire testified that he explained that the Respondent
already had certain benefits for the office employees and would work off of those.

In early January, after the Union learned of the Respondent’s intentions, McGee and
business agent Stanley Bordovsky met with McGuire and his stepbrother, Rex Davis, who is the
Respondent’s Vice President. There is no dispute that the Union told McGuire that the
Respondent could not simply walk away from the contract, that there was an interest arbitration
clause in the agreement that bound the Respondent. It was after this meeting, according to
McGuire, that he obtained legal counsel and filed the RM petition to resolve the question
concerning the union representation of the Respondent’s employees.

B. Alleged Pre-Election Unfair Labor Practices

Albert G. Davis, no relation to Randy or Rex Davis, testified for the General Counsel
regarding several allegations of the complaint. Albert Davis was employed by the Respondent in
its shop from November 2003 until he was terminated in mid-May. He was unemployed at the
time of the hearing. Albert Davis has been a union member since 1973 and is currently a
journeyman. Albert Davis testified that, on March 18, he went into Randy Davis’ office to get a
work ticket. According to Albert Davis, this was a common practice for him as Randy Davis was
the shop foreman who was responsible for assigning work. While in the office, the two men had
a conversation. No one else was present. Albert Davis testified that, during this conversation,
Randy Davis said he was not sure what the company was going to do if they didn’t get a
nonunion vote, that they may have to shut their doors. Albert Davis did not respond to this
comment and left the office. Albert Davis testified that he did not know what precipitated Randy
Davis’ comment about the election. As far as he could recall, nothing else was said about the
election or the Union at that time. Albert Davis was unable to recall anything else that was said
during this conversation. After he left Randy Davis’ office, Albert Davis went to his bench and
wrote down the conversation in a notebook.

Randy Davis testified for the Respondent. Although he did not have any official title, he
was in charge of the shop. Randy Davis is Casey McGuire’s stepbrother. He was no longer
employed by the Respondent at the time of the hearing, having left the Respondent’s employ in
July to work for a company he and his wife owned. In response to leading questions from
counsel, Randy Davis denied telling Albert Davis or any other employee that the Respondent
would shut its doors if the union won the election. Randy Davis did admit having a conversation
with Albert Davis after McGuire’s March 19 presentation, to be discussed later. He also admitted

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that he frequently talked to employees, including Albert Davis, about many things and conceded
he could not say that he never discussed the Union with Albert Davis or any other employee. He
simply could not recall talking about the Union with Albert Davis.

On cross-examination, the Respondent established that Albert Davis had been
terminated by the Respondent for work performance and for urinating in the company’s parking
lot. The parties stipulated that the Union filed a unfair labor practice charge over Albert Davis’
termination and that the charge was withdrawn. There is no allegation that the termination
violated the Act. During cross-examination regarding the circumstances of his termination,
Albert Davis testified at one point that the only door from the shop to the office was locked on
the day he allegedly urinated in the parking lot. On further questioning, Albert Davis
acknowledged that there were other means of access to the bathroom in the office area. In
addition, Gayle Davis, McGuire’s mother and one of the Respondent’s owners who works as the
office manager, contradicted Albert Davis’ testimony regarding the number of doors from the
shop to the office and whether they were locked at any point.

The complaint alleges that the Respondent, during this conversation between Randy
and Albert Davis, unlawfully threatened employees that the Respondent would close if they
voted for the Union. Resolution of this allegation turns exclusively on credibility. The
Respondent argues that I should not believe Albert Davis because he is a bitter man as a result
of his termination by the Respondent. The Respondent also cites Albert Davis’ testimony
regarding access to the bathrooms in the office, which was contradicted by other evidence, as
establishing his general lack of credibility. While Albert Davis’ testimony that the only door from
the shop to the office was locked may not be accurate, this does not prove he was lying about
the conversation with Randy Davis. I note that Albert Davis first reported Randy Davis’ alleged
threat before there was any indication he would be fired and his testimony at the hearing is
consistent with his earlier affidavit. Moreover, aside from his testimony about his termination,
Albert Davis appeared to be a truthful witness. The Board has long recognized that a witness
may be credible as to some but not all of his testimony. See, e.g., Planned Building Services,
330 NLRB 791, 792 (2000). I also note that Randy Davis’ denial that he made such a threat,
elicited by leading questions, is undermined by his concession that he could not say with any
confidence that he never discussed the Union or the election with Albert Davis. Although Randy
Davis impressed me as a generally credible witness, it appears he may simply have forgotten
he made such a comment to Albert Davis. This is particularly likely because of the off-hand
manner in which the statement was made. The threat was not part of any orchestrated
campaign to convince the employees to vote against the Union. Rather it seemed to be no more
than Randy Davis’ speculation as to the possible outcome of a Union victory. Accordingly, I shall
credit the testimony of Albert Davis and find that Randy Davis did state that the Respondent
might close if the employees voted in favor of the Union.

The Board and the courts have frequently addressed the legality of statements such as
the one at issue here. Although an employer may lawfully inform employees as to the precise
effects he believes unionization will have on his company, such predictions “must be carefully
phrased on the basis of objective fact to convey an employer’s belief as to demonstrably
probable consequences beyond his control…If there is any implication that an employer may or
may not take action solely on his own initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a reasonable prediction based upon available
facts but a threat of retaliation based on misrepresentation and coercion without the protection
of the First Amendment.” NLRB v. Gissel Packing Co., 395 NLRB 575, 617 (1969). See also,
NLRB v. St. Francis Healthcare Ctr., 212 F.3d 945, 954-955 (6th Cir. 2000); Times-Herald
Record, 334 NLRB 350 (2001); Migali Industries, Inc., 285 NLRB 820 (1987). Randy Davis
statement, without any explanation for his belief that the Respondent might have to shut its

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doors if the union prevailed in the election, clearly meets the definition of a threat. Such a
statement would have the reasonable tendency to convey the impression that the Respondent
would rather go out of business than deal with the Union. Accordingly, I find that the
Respondent violated Section 8(a)(1) of the Act, as alleged, through Randy Davis threat of
closure of the business.

There is no dispute that, on March 19, McGuire conducted a power point presentation
for the unit employees to describe the benefits that would be available after the expiration of the
collective-bargaining agreement on March 31. Among the new benefits announced were paid
vacations, five days after one year of service and ten days after five years of service, and three
paid holidays a year. The collective-bargaining agreement did not provide either paid vacations
or holidays. McGuire also described the health insurance benefits that would be available,
telling the employees that, unlike the Union’s plan, which had different benefits for journeymen
and apprentices, all employees would receive the same benefits. McGuire also told the
employees they would receive dental benefits, something not available under the Union’s
contract. McGuire’s presentation also included a larger life insurance policy, i.e. $50,000 as
opposed to the $10,000 policy under the collective-bargaining agreement. Finally, McGuire
talked about the retirement benefits the company would have after the contract expired. Under
the Respondent’s plan, employees needed one year of service to be eligible but there was no
vesting period. The plan, a simplified employee pension plan (SEP-IRA) was fully funded
through employer contributions with withdrawals permitted at any time. According to employees
who were at the meeting, McGuire compared this plan to the Union’s pension, telling the
employees that the Union’s plan was in bad shape. McGuire told employees if they wanted to
see for themselves the poor financial shape that the Union’s plan was in, they could go into
Randy Davis office and he would bring it up on the computer for them. McGuire told the
employees that the Respondent’s plan would do better for the employees and would be more
cost-effective.

McGuire admitted making most of the statements attributed to him by the General
Counsel’s witnesses. According to McGuire, he gave this presentation in response to questions
that had been raised by the employees about what would happen after the contract expired.
McGuire testified that he did not mention the upcoming election and did not tell the employees
that, if the Union won the election, he would have to negotiate with the Union about these
benefits. In a pre-trial affidavit, McGuire had stated that he told the employees these were the
benefits they would receive regardless of the outcome of the election. There is no dispute that
some of the new benefits were not as good as those provided under the Union contract. For
example, McGuire’s presentation reveals that employees would not be eligible for overtime until
after they had worked 40 hours in a week, as opposed to the contractual requirement of
overtime after 8 hours per day. Similarly, the Respondent’s new health insurance plan included
employee contributions, which were not required under the collective-bargaining agreement.

The complaint alleges that the Respondent, through McGuire’s presentation, unlawfully
promised employees improved benefits if they voted against union representation. The facts
supporting this allegation are undisputed. McGuire admittedly told the employees at this
meeting that, after the contract expired, they would receive benefits such as paid vacations and
holidays and a dental plan that they did not then receive, and that they would receive improved
health insurance, life insurance and a better retirement plan than they received through the
Union. Although the Respondent’s proposed overtime policies would not be as good as the
contract’s provisions, overall the plan presented was better for the employees. The Respondent
argues that McGuire’s presentation was not an unlawful promise of benefits. In the
Respondent’s view of the facts, McGuire was simply advising the employees of the benefits that
it would implement when the Section 8(f) contract with the Union expired, which it had a right to

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do under John Deklewa & Sons, 282 NLRB 1375 (1987).

In NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964), the Supreme Court
recognized the inherent danger in well-timed increases in wages and benefits and found that a
grant of benefits intended to influence employees’ choice in an election violates Section 8(a)(1)
of the Act. Although the grant of benefits during an election campaign is not per se unlawful, the
Board will draw an inference of improper motivation and interference with employee free choice
where the evidence shows that employees would reasonably view the grant of benefit as an
attempt to interfere with or coerce them in their choice of representative. An employer may rebut
this inference with proof of a legitimate business reason for the timing and grant of the benefit.
Southgate Village, Inc., 319 NLRB 916 (1995); Holly Farms Corp., 311 NLRB 273, 274 (1993),
enfd. 48 F.3d 1362 (4th Cir. 1995), aff’d. 517 U.S. 392 (1996). More recently, the Board held that
the timing of an employer’s announcement of wage increases during a union campaign may be
unlawful even if the wage increase itself does not violate the Act. Mercy Southwest Hospital,
338 NLRB No. 66 (November 20, 2002) and cases cited therein.

Applying the law to the facts here, I find that the Respondent’s March 19 announcement
of its new benefit program was unlawful, as alleged in the complaint. Even assuming that the
Respondent had the right under Deklewa, supra, to terminate the collective-bargaining
agreement and implement new wages and benefits upon its expiration, the timing of the
announcement, shortly before employees were to vote on whether to continue union
representation, supports an inference that the Respondent intended to influence employee
choice in that election. Because the new benefits would only go into effect after the contract
expired if there were no union on the scene, the message conveyed by the Respondent was
that employees could not receive these new benefits if they voted for continued union
representation. Moreover, the Respondent offered no evidence that it had decided upon the
new benefit program before it filed the petition which precipitated the election. The conclusion is
inescapable that, having initiated the process to remove the union as its employees’ bargaining
representative, the Respondent wanted to ensure a favorable outcome by conveying to the
employees the benefits they would receive once the Union was gone and the collective-
bargaining agreement had terminated.

There is no dispute that, on March 25, the day before the election, Randy Davis called
Albert Davis into his office and talked to him about the new benefits. According to Albert Davis,
Randy Davis said he realized that Albert had not been with the company for a year. Randy
Davis then asked, if Albert Davis could be grandfathered into the program, would that affect his
vote. Albert Davis said it would not and the conversation ended. Albert Davis could not recall
anything else that was said in this conversation. On cross-examination, Albert Davis conceded
that Randy Davis may have talked about Albert Davis staying on with the company after the
election. Albert Davis also acknowledged that Randy Davis asked him if he would stay on if the
Respondent grandfathered him for the new benefits.

Randy Davis testified that he spoke to Albert Davis because he observed at the March
19 meeting that Albert Davis and another employee who had been with the company less than a
year seemed disappointed that they wouldn’t be eligible for the pension plan because they had
not been there a year. According to Randy Davis, he asked Albert Davis, “if I was able to
convince Casey to grandfather those guys who hadn’t been working there a year would he
consider staying, or would that affect his decision to stay?” Randy Davis recalled that Albert said
it would not affect his decision. Randy Davis denied asking Albert if it would affect or sway his
vote in the election. According to Randy Davis, he figured the Respondent had enough votes to
win the election and he was concerned that all the long-term union members would quit
immediately after the election. Randy Davis testified that he considered Albert Davis a good

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worker and he was trying to convince him to continue with the company after the election.
Randy Davis also testified that he had not been authorized to have this conversation with Albert
Davis and that Casey McGuire reprimanded him for having done this. Randy Davis conceded
that Albert Davis had given him no indication before this conversation that he planned to leave
after the election. There is no dispute that the Respondent had asked Albert Davis to be its
observer at the election before this conversation but that he was told afterward that he would
not be the observer.

The complaint alleges that the Respondent, through Randy Davis, made an unlawful
promise of benefits when Randy Davis offered to grandfather Albert Davis so he could receive
the new benefits offered at the March 19 meeting. There is no dispute that Randy Davis called
Albert Davis into his office for the purpose of making such a proposal. The only issue is whether
Randy Davis offered to grandfather Albert Davis in order to win his vote in the election, or to
induce him to remain with the Respondent after the election. Although Albert Davis initially
testified that Randy Davis asked if the grandfathering would affect his vote in the election, he
conceded on cross-examination that Randy Davis asked if it would affect his decision to stay
with the company. Albert Davis testimony on cross-examination thus corroborates Randy Davis
version of the conversation. This version of the facts is also consistent with other evidence in
the record showing that the Respondent was confident that a majority of the employees would
vote against union representation and that its main concern, in the days preceding the election,
was that a number of long-term union members would quit en masse, leaving the Respondent
unable to complete its contracts with customers. Accordingly, I shall credit Randy Davis as to
this allegation and find that Randy Davis made the offer to grandfather Albert Davis in order to
encourage him to stay with the company after the election. Such an offer, not tied to how Albert
Davis voted in the election, did not amount to an unlawful promise of benefit under the Act.
Accordingly, I shall recommend dismissal of this allegation of the complaint.

Brandon McCain, who worked for the Respondent for about three years until he left to
work for another union-signatory contractor on April 8, also testified for the General Counsel
regarding the Section 8(a)(1) allegations. McCain was an apprentice who worked in the field
under the Respondent’s contract with Maxwell House. He testified that, on March 24, two days
before the election, McGuire visited the Maxwell House plant and asked to speak to him.
According to McCain, McGuire talked about the upcoming NLRB election, telling McCain that he
already had six out of the eleven people voting and that he would also like McCain to stay with
him. McCain responded by telling McGuire that he didn’t think this was anything more than a
last-ditch attempt to win his vote. McGuire denied this was the case. McCain ended the
conversation by returning to work. McCain testified that no one else was present during this
conversation with McGuire. On cross-examination, McCain denied that McGuire had repeatedly
asked him to stay after the union vote. According to McCain, this was the only time McGuire
asked him to stay with the company.

McGuire admitted having a conversation with McCain at Maxwell House before the
election and admitted telling McCain that he thought the vote would be 6-5. McGuire also
admitted telling McCain that he would like his vote. According to McGuire, he knew how the vote
would go because the Respondent had hired most of the employees, including McCain, and had
sent them to the Union to join. On cross-examination, McGuire testified that he personally liked
McCain and wanted him to stay with the company and that was why he spoke to him that day.
McGuire denied that he went to Maxwell House to speak to McCain about the election.
According to McGuire, he was at the site looking over the job, something he does several times
a week.

McGuire essentially admitted making the statements attributed to him by McCain, who

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impressed me as a credible witness in any event. The complaint alleges that McGuire violated
the Act in two respects during his conversation with McCain at the Maxwell House job.
McGuire’s prediction as to the outcome of the election allegedly created the impression that the
employees’ union activities were under surveillance by the Respondent. This prediction,
together with McGuire’s request for McCain’s vote, is further alleged as a form of interrogation
because the conversation invited the employee to reveal his sympathies for the upcoming
election.

The Board will find that an employer has created the impression of surveillance when its
statements or actions would lead employees to reasonably assume that their Section 7 activities
have been placed under surveillance. Fred’k Wallace & Son, 331 NLRB 914 (2000); Tres
Estrellas de Oro, 329 NLRB 50, (1999); United Charter Service, 306 NLRB 150 (1992). Here,
McGuire’s statement that he knew how the election would turn out, down to the precise number
of employees who would vote against the Union, would lead an employee to assume that the
Respondent was monitoring the union sympathies of its individual employees. It is irrelevant that
McGuire reached his conclusion by lawful means rather than through actual surveillance
because it is the impression conveyed to the employee that violates the Act. See Martech MDI,
331 NLRB 487, fn. 4 (2000). Accordingly, I find that the Respondent, through McGuire, violated
the Act as alleged by creating the impression of surveillance on March 24.

The Board has held that statements not “couched as questions” may nonetheless
constitute unlawful interrogation when they are “calculated to elicit responses from [employees]
about their union sentiments.” Westwood Health Care Center, 330 NLRB 935, 941, fn. 21
(2000) quoting from NLRB v. McCullough Environmental Services, 5 F.3d 923, 929 (5th Cir.
1993). See also Clinton Electronics Corp., 332 NLRB 479 (2000). McGuire’s statement here,
that he knew that six out of eleven employees would vote against the Union and that he would
like McCain’s vote as well, would compel a response from an ordinary employee that would
reveal his union sympathies. I find that McGuire’s conversation here meets the totality of
circumstances test used by the Board to evaluate allegations of unlawful interrogation.
Westwood Health Care Center, supra; Rossmore House, 269 NLRB 1176 (1984). McGuire was
the Respondent’s highest-ranking officer. He sought out McCain at his job site to speak to him
one-on-one. The alleged interrogation occurred in the same conversation in which McGuire
created the impression of surveillance and less than a week after he had promised employees
improved benefits if they voted against union representation. Finally, the interrogation was
couched as a request that McCain “stay with the company” by casting his vote against the
Union. All of these circumstances convince me that the effect of McGuire’s conversation was
coercive within the meaning of the Act.4 Accordingly, I find, as alleged in the complaint, that the
Respondent violated Section 8(a)(1) of the Act on March 24 when McGuire interrogated McCain
at the Maxwell House job site.

C. Post-Election Allegations

There is no dispute that the Union engaged in handbilling at the Respondent’s shop on
Allen Genoa Road in Houston on May 27 and 28. Union organizer Billy Kenyon testified that he
was accompanied by three apprentices who were members of the Union participating in an
educational program. None had ever been employed by the Respondent. Kenyon was also
accompanied by a 16-foot high inflatable rat with a sign bearing the Respondent’s name on its
4 Whether McCain was actually coerced into revealing his union sympathies is irrelevant as
the Board’s test is an objective one. See NLRB v. McCullough Environmental Services, Inc., 5
F.3d supra, at 927.

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chest. The Union had used this device to protest other employers with whom it had a dispute
and had also displayed the rat bearing the Respondent’s name at the Maxwell House facility
and at the locations of other customers of the Respondent before May 27. There is no dispute
that the rat was located on the property of a church across the street from one of the
Respondent’s gates. Kenyon testified that he and the apprentices handbilled at the
Respondent’s facility from approximately 7:00AM until 3:00 PM on both days. He testified that
they did not block entrance to or egress from the facility, did not impede traffic on the street or
sidewalk, and engaged in no other activity that would violate any laws. The Respondent did not
dispute this testimony other than to claim that, for part of the day on May 28, the Union set up
lawn chairs and an umbrella on the sidewalk impeding pedestrian traffic. The parties stipulated
that, on May 27, the Respondent’s attorney photographed Kenyon and the others as they
handbilled.

The complaint alleges that the Respondent’s photographing of Kenyon and the other
Union handbillers on May 27 amounted to unlawful surveillance. The Respondent counters that
the mere act of photographing union representatives is not unlawful where no employees were
present or even aware of pictures being taken. The Board, in F.W. Woolworth Co., 310 NLRB
1197 (1993), set forth the fundamental principals governing employer surveillance of protected
concerted activities. Where employees are conducting their activities openly on or near the
employer’s premises, open observation of such activities is not unlawful. Roadway Package
System, 302 NLRB 961 (1991) and cases cited therein. Where an employer’s surveillance
activities go beyond “mere observation”, the Board will find a violation. In F.W. Woolworth,
supra, the Board found that photographing or videotaping employees engaged in such activity
goes beyond “mere observation” and is unlawful because such pictorial record keeping tends to
create fear among employees of further reprisals. Accord: National Steel & Shipbuilding Co.,
324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998). Here, there is no evidence that
any employees participated in, or were present, when the Respondent’s attorney took
photographs of the Union activity outside its gates. In the absence of such evidence, it is difficult
to conclude that any employees were restrained or coerced in the exercise of Section 7 rights.5
Accordingly, I find that the conduct of the Respondent’s attorney on May 27 did not violate
Section 8(a)(1) of the Act and I shall recommend that this allegation of the complaint be
dismissed.

It is undisputed that, on May 28, the Respondent summoned the Houston police to the
site to investigate whether the Union’s handbillers were violating any laws. Officer Joseph C.
Cram, from the Criminal Intelligence Division of the Houston Police Department, testified that he
first spoke to Kenyon and inquired as to the Union’s plans. He then determined that the rat was
not on public property and that the Union had permission of the Church to place it where it was.
Cram then went into the Respondent’s office and spoke to Rex Davis. According to Cram, Rex
Davis was upset and complained that the demonstrators were blocking the sidewalk and forcing
neighborhood children to walk in the street to get around them. Rex Davis also complained that
the rat’s arm was hanging in the street causing a traffic hazard. Cram told Rex Davis that he
had already talked to the Union demonstrators and had them move the rat so it did not hang in
the street and that he had reminded them of the rules against blocking the sidewalk. After
meeting with Rex Davis, Cram returned to the sidewalk and talked to Kenyon again. Cram did
tell Kenyon to move the chairs and umbrella so as not to impede the sidewalk and he reminded
them of the rules. Cram testified that he did not observe the Union representatives violating any
5 The three individuals who were with Kenyon at the time were not employees. They were
union apprentices on leave to participate in an educational program in which young members of
the Union learned about the Union and assisted in organizing.

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laws or public ordinances while he was there. The incident report he filed is consistent with this
testimony. Rex Davis was not called as a witness in this proceeding.

The complaint alleges that the Respondent violated the Act when Davis called the police
in an attempt to have the Union handbillers arrested. The General Counsel argues that,
because the Union representatives were on public property and not violating any laws during
the handbilling, it was unlawful for the Respondent to call the police. The Respondent counters
that the Respondent simply called the police to investigate whether or not the Union
representatives were blocking the public sidewalk or interfering with traffic by the placement of
the rat. The Respondent notes that there is no direct evidence that any official of the
Respondent requested that Officer Cram arrest the Union handbillers.6 The Respondent also
points out the lack of evidence that any employees were aware of this incident.

The Board has held that an employer may not prohibit a Union from engaging in
peaceful picketing or handilling on public property and may not cause or attempt to cause the
arrest of individuals engaged in such activities. See Indio Grocery Outlet, 323 NLRB 1138, 1141
(1997), enfd. 187 F.3d 1080 (9th Cir. 1999), cert. denied 529 U.S. 1098 (2000) and cases cited
therein. The evidence here does not support a finding that the Respondent in fact attempted to
evict the Union from public property or to cause their arrest. At most, the Respondent called the
police to investigate whether the Union was encroaching on private property or impeding traffic,
which it had a right to do. Officer Cram acknowledged that he had to advise Kenyon to move the
rat and the lawn chairs and umbrella because they were encroaching on the public right of way.
Officer Cram also testified that it is part of his duties to monitor labor disputes and he was aware
of the handbilling at the Respondent’s premises even before receiving the call to investigate the
Respondent’s complaint. In the absence of evidence that the Respondent attempted to cause
the arrest of Kenyon or anyone else, I can not find that the Respondent’s action on May 28 rose
to the level of an unfair labor practice. Accordingly, I shall recommend that this complaint
allegation be dismissed.

III The Challenged Ballots

As noted above, the tally of ballots cast in the March 26 election was 6-5 against the
Union with three determinative challenged ballots. The challenged ballots were cast by Roger
Reid, Raymond Casillas and Gary Jones. All three voters were challenged by the Board agent
conducting the election because their names were not on the eligibility list supplied by the
Respondent. Because the parties have stipulated that Reid was not eligible to vote in the
election, I shall sustain the challenge to his ballot. The remaining two challenged ballots are still
sufficient in number to affect the results of the election. Resolution of these challenges turns on
whether Casillas and Jones were eligible to vote in the election by virtue of prior employment
with the Respondent under the formula used by the Board to determine eligibility in the
construction industry. See Steiny & Co., 308 NLRB 1323 (1992) and Daniel Construction, 133
NLRB 264 (1961), modified at 167 NLRB 1078 (1967). The parties had agreed, in the Stipulated
Election Agreement, that the Steiny/Daniel formula would apply to determine eligibility in this
election.

The Steiny/Daniel formula provides that, in addition to those eligible to vote under the
Board’s standard criteria, unit employees are eligible if they have been employed for 30 days or
6 Kenyon’s hearsay testimony that Officer Cram told him that the Respondent wanted the
handbillers arrested was uncorroborated. Officer Cram did not testify to any such request and
nothing in the police report indicates that a request was made to arrest anyone.

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more within the 12 months preceding the eligibility date, or if they have had some employment
in those twelve months and have been employed for 45 days or more within the 24-month
period immediately preceding the eligibility date. Employees who had been terminated for cause
or quit voluntarily prior to completion of the last job for which they were employed would not be
eligible under this formula. The Board uses such a formula to ensure that employees who may
have an interest in the outcome of the election are not disenfranchised because of the short-
term, intermittent and sporadic nature of employment in the construction industry. In Steiny,
supra, the Board decided that this formula would apply in all construction industry elections
regardless of the particular employer’s method of operations.

The parties here have stipulated that Casillas and Jones worked the requisite number of
days to be eligible to vote in this election under the Steiny/Daniel formula. The Employer
contends, however, that Casillas was not eligible because he declined an offer of recall and that
Jones was not eligible because he had been terminated during his last period of employment.
Because the Employer conceded that Casillas and Jones satisfied the numerical criteria of the
formula and because the Employer was in possession of the evidence that would resolve the
issue raised by these challenges, I placed the burden of proof on the Respondent to show that
these otherwise eligible voters were not entitled to vote.

The parties stipulated that Casillas was laid off on September 24, 2003 and that, on
November 18, 2003, after the Employer had inquired through the Union hiring hall whether he
was available, he declined recall because he had other employment. There is no evidence that
the Respondent has attempted to recall Casillas since that date. Nor is there any evidence in
the record whether Casillas was employed elsewhere at the time of the election.7 McGuire
testified that the Respondent’s “policy” is that, if an employee refuses recall, the Respondent
would not “typically” go back to him again. McGuire testified that he didn’t think there were any
instances where the Respondent had offered employment to someone who had declined recall.
McGuire conceded on cross-examination that the Respondent had no formal policy regarding
this matter. Other evidence in the record indicates that it is Rex Davis, not McGuire, who is
responsible for hiring employees. As previously noted, Rex Davis did not testify in this
proceeding.

I find that Casillas retained his eligibility to vote in the election notwithstanding the fact
he declined an offer of recall in November 2003. There is nothing in the Board’s decisions in
Steiny or Daniel Construction that expressly holds that an employee who has worked the
requisite amount of time for an employer loses eligibility by declining recall. The only specific
exceptions noted are for an employee who has voluntarily quit or been terminated for cause
prior to the completion of the last job on which he worked. Neither is the case with Casillas. The
Respondent has not cited any cases applying the formula where the Board has disqualified a
voter on this basis.8 Moreover, the nature of employment in the construction industry, which led
the Board to adopt an eligibility formula in the first place, supports a finding of continuing
eligibility even after a recall offer has been declined. Because construction employees may work
for different employers at different times, it would not be uncommon for an employee to be
working elsewhere when an opening with the employer came up. It would also not be unusual
7 The parties also stipulated that Casillas has been a part-time welding instructor in the
jointly administered apprentice training program since 1998, working approximately 16 hours a
month. This would not affect his eligibility under the Steiny/Daniel formula.
8 The cases cited by the Respondent involved the eligibility of employees who had retired,
thus severing their employment relationship. See Columbia Steel Casting Co., 288 NLRB 306
(1988); Belt Supermarket, 260 NLRB 118 (1982).

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for this employee to work for the same employer again after his current employment ended.
Particularly where hiring is done through a hiring hall, with employees’ names going on and off
the out of work list, an employee’s unavailability at one point in time would not extinguish his
expectation of future recall by the same employer were he to become available in the future at a
time when the employer needed workers.

The Respondent attempted to show that it had a policy of not offering employment to an
employee who has declined recall. Even assuming that such a policy would terminate a laid off
employee’s eligibility under Steiny/Daniels, the Respondent has not proved the existence of
such a policy. McGuire admitted that the Respondent had no “formal policy”. He testified,
essentially, that he didn’t think the Respondent would attempt to recall an employee who had
previously declined an offer of recall. McGuire conceded he could not think of any instance
where this had occurred. Moreover, McGuire may not have been the best witness to testify
regarding the Respondent’s hiring policies since he testified that it was his stepbrother, Rex
Davis, who handled such personnel matters. Rex Davis was not called as a witness. Gayle
Davis, who as the office manager would presumably also be aware of the Respondent’s policies
because she maintained the records and completed any paperwork required, was not asked
any questions about this “policy”. I find that the Respondent has not offered sufficient evidence
to show that Casillas was no longer eligible to vote on the date of the election. Accordingly, I
shall overrule the challenge to his ballot.

McGuire testified that Gary Jones was fired on January 30 after he left work early, telling
Randy Davis that he was going home to take a nap. According to McGuire, he became aware of
the situation when he overheard Randy telling Rex Davis about it. McGuire testified that he
came out of his office and told Randy Davis, “that man’s fired.” McGuire testified further that he
made the decision to fire Jones because the Respondent was very busy that week and could
not tolerate people leaving work in the middle of the day. McGuire recalled that this incident
occurred at approximately 2:00 PM. McGuire instructed Randy Davis to get Jones’ time so he
could prepare his check. The following Monday morning, when Jones reported to work, Randy
Davis informed him he was fired and gave him his final check and a separate check for two
hours show-up pay under the collective-bargaining agreement. McGuire admitted that no
attempt was made to contact Jones before Monday morning to tell him he was terminated,
which would have avoided having to pay him for showing up Monday morning. Randy Davis
also testified about Jones’ termination. According to Randy Davis, Jones walked into the office
around 1:30 or 2:00 PM and said he was real tired and was “fixing to go home and take a nap.”9
Randy Davis told Jones that the Respondent was real busy and asked, “what do you mean
you’re going home and take a nap?” Jones replied, “Hey, I’m out of here. I’ll see you Monday.”
According to Randy Davis, Jones left before he could stop him. Davis testified that he turned to
McGuire and said, “did you hear that?” and McGuire said, “that man’s fired, let’s get his money.”
The following Monday, when Jones came into work, Davis told him, “I hate to have to say this,
but it’s time for us to part company. I’ve got your two-hour show-up time check and your final
paycheck.” Randy Davis could not recall whether anyone was hired to replace Jones after he
was fired. The Respondent offered no payroll or other records to show that he was replaced.
The Respondent’s witnesses conceded that, on documents submitted to the Texas Workforce
Commission in response to Jones application for unemployment benefits, the Respondent
indicated “permanent layoff” rather than “fired” as the reason Jones was no longer employed.10
9 On further questioning, Davis said this conversation occurred in the hallway between the
break room and the office, within earshot of Rex Davis’ and McGuire’s offices.
10 This is the same box that was checked on the form submitted in response to Casillas
unemployment claim.

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Gayle Davis, who completed this form testified that she checked that box because no one was
around at the time and she did not know the circumstances of Jones’ termination. McGuire
testified that he did not see this form until after it had been submitted to the Workforce
commission.

Gary Jones was called as a witness by the Union. He did not dispute the testimony that
he left work early on his last day of work to go home and take a nap. According to Jones, he
was tired because he had not been getting much sleep since putting his mother in an assisted
living center. Jones testified that he left after completing the project he had been working on and
that, when he told Randy Davis he was leaving, Davis simply asked him if he would be in on
Monday. When Jones told Davis he would, Davis said, “See you Monday.” Jones testified
further that, when he reported for work on Monday, Randy Davis handed him his papers and
said things were slowing down and he had to let him go. According to Jones, Davis even asked
if he would come back if the Respondent got more work. Jones said he would. There is no
dispute that Jones received unemployment benefits. Jones disputed the testimony of the
Respondent’s witnesses that the shop was busy at the time of his layoff. The Respondent’s
payroll records show that Jones left work about one hour early on Friday.

The Respondent contends that Jones was not eligible to vote under the express
exception to the Steiny/Daniel formula for employees who have been terminated for cause prior
to the completion of their last job. Although there is no dispute that Jones left work early on
January 30 to go home and take a nap and that his employment ended almost immediately
thereafter, there is a dispute whether the Respondent fired him for leaving early or simply laid
him off. The Respondent’s witnesses testified that he was fired. As noted by the Union, the
testimony of Randy Davis and McGuire is not entirely consistent regarding the sequence of
events that Friday afternoon. Also, as noted by the Union, their testimony is contradicted by the
only written document in evidence, which states that Jones was laid off, not fired. This
document would seem to support Jones’ testimony that he was laid off because work was slow.
Jones testified further that Randy Davis even asked if he would come back to work when things
picked up. The fact that the Respondent did not hire a replacement for Jones also undermines
the testimony of McGuire and Randy Davis that the Respondent had a lot of work to do when
Jones walked off the job. Notwithstanding the conflicting evidence and apparent inconsistencies
in the Respondent’s case, I find that Jones was terminated for cause and thus not eligible to
vote in the March 26 election.

I reach my conclusion after careful consideration because it is more probable than not
that the Respondent would have fired an individual who decided unilaterally that he was going
home to take a nap. Regardless of his reasons for doing this, an employee who walks off the job
can hardly be surprised when he finds himself unemployed the next day. Moreover, had the
Respondent decided to lay off Jones for lack of work, they would probably have done so on
Friday afternoon, before he left for his nap, rather than make him come in on Monday and have
to pay him an extra two hours pay. A lay off for lack of work generally is planned in advance and
not a spur of the moment decision. The fact that the paperwork submitted in response to Jones’
unemployment claim characterized the termination as a lay-off is also not surprising. As Gayle
Davis testified, Jones had not worked for the Respondent long enough for his unemployment
claim to be charged against the Respondent. It is also not unusual in the construction industry
for an employer to give an employee a lay-off even where the termination is for cause. Finally, I
note that the slight variations in the recollection of events by Randy Davis and McGuire are not
fatal to their credibility. Any differences are more than likely attributable to the passage of time
and the individual perspective of the witnesses than an attempt to fabricate evidence. In this
regard, Randy Davis would have no reason to perjure himself in this proceeding since he no
longer works for the Respondent. On the other hand, Jones, who was unemployed for some

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time after his termination, secured employment through the Union after voting in the election.
His allegiance to the Union may have colored his recollection of events.

Based on the above, I find that Jones was not eligible to vote in the election and that the
challenge to his ballot should be sustained. Because the ballot of Casillas is no longer
determinative of the outcome of the election, I shall recommend that a Certification of the
Results of the Election issue confirming that a majority of the valid votes counted were cast
against the Union.

Conclusions of Law

1. The Respondent is an Employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. By threatening employees that the Respondent would shut its doors if they voted in
favor of the Union, by offering employees improved benefits to encourage them to vote against
the Union, by creating the impression among employees that their union activities were under
surveillance, and by interrogating employees regarding their union sympathies, the Respondent
has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.

4. The Respondent did not engage in any other unfair labor practices as alleged in the
complaint.

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. In order to remedy the Section 8(a)(1) violations found, I shall
recommend that the Respondent post a Notice to Employees. Although the Respondent
committed unfair labor practices during the critical period before the election in Case No. 17-
RM-763, I shall not recommend that the election be set aside because the Union has withdrawn
its objections to the election. Accordingly, I shall recommend that a Certification of Results issue
in Case No. 16-RM-763.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11

ORDER

The Respondent, MetFab, Inc., Houston, Texas, its officers, agents, successors, and
assigns, shall

1. Cease and desist from
11 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.

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(a) Threatening employees that it will shut its doors if they vote in favor of representation
by Sheet Metal Workers Local Union No. 54, AFL-CIO, affiliated with Sheet Metal Workers
International Association, or any other labor organization.

(b) Offering employees benefit improvements if they vote against Union representation.

(c) Making statements that create the impression among employees that their union
activities are under surveillance.

(d) Coercively interrogating any employee about union support or union activities.

(e) 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.

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 facility in Houston, Texas
copies of the attached Notice marked “Appendix.”12 Copies of the Notice, on forms provided by
the Regional Director for Region 16, 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.
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 the 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
March 18, 2004.

(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
the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

IT IS FURTHER RECOMMENDED that the challenges to the ballots of Gary Jones and
Roger Reid be sustained and that a Certification of the Results of the Election issue in Case No.
16-RM-763.

Dated, Washington, D.C.

____________________
Michael A. Marcionese
Administrative Law Judge
12 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.”

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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 threaten to shut our doors if you vote in favor of Union representation.

WE WILL NOT offer you benefit improvements if you vote against Union representation .

WE WILL NOT make statements that create the impression that we are keeping your union
activities under surveillance.

WE WILL NOT coercively question you about union support or union activities.

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.

METFAB, 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.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 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, (817) 978-2925.