RELCO LOCOMOTIVES, INC.

National Labor Relations Board - Administrative Judge Opinions

Sep 25, 2012

18-CA-074960 (N.L.R.B. Sep. 25, 2012)

JD–51–12
Albia, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
RELCO LOCOMOTIVES, INC.
and
Cases 18-CA-074960
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION #347
Table of Contents
Decision 1
Statement of the Case 1
Findings of Fact 2
I. Jurisdiction 2
II. Alleged Unfair Labor Practices 2
A. The IBEW Local 347 organizing campaign 2
B. The testimony of Respondent’s witnesses concerning
Knowledge and response to the IBEW campaign 7
C. The Section 8(a)(1) allegations
14
1. The interrogations and related conduct 14
2. The solicitation of and implied remedy of
grievances 16
3. The handbook requirement that employees seek
Management approval before they solicit or
Distribute literature 19
D. The January 2, 2012 discharges of Douglas and Sindt 22
1. Douglas 22
2. Sindt 24
E. Respondent’s witnesses concerning the termination
Of Douglas and Sindt 27
1. Douglas 27
2. Sindt 31
F. Analysis concerning the discharge of Douglas and
Sindt 37
1. Case law pertaining to discriminatory conduct 37
2. The prima facie case 38
3. The pretextual nature of the discharges 41
a. Douglas 41
b. Sindt 44
Conclusions of Law 50
Remedy 50
Order 50
JD–51–12
Albia, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
RELCO LOCOMOTIVES, INC.
And Case 18-CA-074960
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION #347
Catherine L. Homolka, Esq., and Nichole L. Burgess-Peel, Esq.,
for the Acting General Counsel.
Paul E. Starkman, Esq., and Svetlana Zavin, Esq.,
of Chicago, Illinois for the Respondent.
DECISION
Statement of the Case
Eric M. Fine, Administrative Law Judge. This case was tried in Albia, Iowa on June 6 and
7, 2012. The charge was filed on February 22, 2012; the first amended charged was filed on
March 16, 2012; the second amended charge was filed on April 10, 2012; and the third
amended charge was filed on June 1, 2012.1 The charge and amended charges were filed by
the International Brotherhood of Electrical Workers, Local Union #347 (the Union, the IBEW, or
Local 347) against Relco Locomotives, Inc. (Respondent). The complaint, as amended at the
hearing, alleges that Respondent violated Section 8(a)(1) of the Act by: in October 2011 and
December 2011 interrogating employees about their union activities; in December 2011
prohibiting an employee from engaging in union activities during non-work time; in December or
January 2012 soliciting employee complaints and grievances and promising employees
increased benefits and improved terms and conditions of employment; and that Respondent
maintained a rule improperly restricting employees discussions of their working conditions. The

1 All dates are in 2011 unless otherwise indicated.
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complaint alleged Respondent violated Section 8(a)(1) and (3) of the Act by discharging its
employees Mark Douglas and Jerry Sindt on January 2, 2012.2
On the entire record,3 including my observation of the witnesses' demeanor, and after
considering the briefs filed by the Acting General Counsel and Respondent,4 I make the
following:5

2 Respondent argues that it was denied due process by my refusing to enforce its subpoena
duces tecum with regard to witness affidavits. Pursuant to Sec. 102.118(b)(1) of the Board's
Rules and Regulations, the Respondent was provided with witnesses' affidavits upon its request
prior to its cross-examination of those witnesses, and it had an opportunity to cross-examine
those witnesses about their prior statements. See, e.g., Success Village Apartments, 347 NLRB
1065, 1065 (2006). Respondent was allowed to request the amount of time it needed to review
those affidavits, and to request more time if necessary. Respondent has shown no prejudice by
my following Boards procedures concerning the refusal to enforce its subpoena.
3 In Relco Locomotives, Inc., 358 NLRB No. 32 (2012) (Relco I) Respondent was found to
have unlawfully discharged five employees, one in June 2009, one in September 2009, and
three in March 2010 because of their activities on behalf of the Brotherhood of Railroad
Signalmen Union. Respondent was also found to have unlawfully maintained a nondisclosure
requirement that prohibits employees from engaging in union or other concerted activities.
Respondent was ordered by the Board to rescind all nondisclosure agreements and any other
rules that prohibit employees from engaging in protected union or concerted activities. In Relco
Locomotives, Inc., 358 NLRB No. 37 (2012) (Relco II) Respondent was found to have unlawfully
discharged two employees in December 2010; and another two employees in March 2011.
Respondent in that decision was also found to have engaged in other unlawful conduct
including threatening an employee that he was being watched, issuing a verbal warning to an
employee, and issuing unfavorable performance reviews to employees. I am aware of these
decisions, but have not relied on them in making credibility determinations, or to make any of
my findings here.
4 Following the close of the hearing counsel for the Acting General Counsel filed a motion to
strike certain portions of Respondent's post-hearing brief asserting certain matters contained in
the brief were based on matters outside the record. Respondent filed a response to said
motion. While counsel for the Acting General Counsel may disagree with certain arguments
raised in Respondent's brief based on Respondent's interpretation of the record, Respondent
did provide citations to transcript pages for most of those arguments. I am fully capable of
reading Respondent's brief and agreeing or disagreeing with its arguments. I find counsel for
the Acting General Counsel's brief is a reply brief labeled as a motion to strike. Accordingly, the
motion to strike is denied, and I have not considered the arguments raised in the motion or
Respondent's response in deciding this case.
5 In making the findings, I have considered the witnesses’ demeanor, the content of their
testimony, and the inherent probabilities of the record as a whole. In certain instances, I have
credited some but not all of what a witness said. See NLRB v. Universal Camera Corporation,
179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474 (1951). All testimony and
evidence has been considered. If certain testimony or evidence is not mentioned it is because it
is cumulative of the credited evidence, not credited, or not essential to the findings herein.
Further discussion of specific credibility determinations is set forth below.
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Findings of Fact
I. Jurisdiction
Respondent, a corporation with an office and place of business in Albia, Iowa
(Respondent's facility) has been engaged in the business of repairing and rebuilding
locomotives. During the past calendar year, Respondent has sold and shipped from its Albia,
Iowa facility goods valued in excess of $50,000 directly to points outside the state of Iowa.
Respondent admits and I find it is an employer engaged in commerce under Section 2(2), (6),
and (7) of the Act and the Union is a labor organization under Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The IBEW Local 347 organizing campaign
Mark Bachman is the chief operating officer for Respondent.6 Respondent's corporate
office is in Lisle, Illinois and its production facility is in Albia, Iowa. Bachman is in charge of the
Albia facility. Respondent has been in business since 1961, but the Albia facility has been open
since 2005. Bachman is co-owner of Respondent with Cheri Bachman and D. Bachman. The
Albia facility covers 100 acres and is capable of working on 27 locomotives. It has 3 miles of rail
track. At the time of the unfair labor practice trial, there were about 140 individuals working at
Albia, with over 100 of them being production workers. Bachman testified that from the fall of
2011 to February 2012 there were about six supervisors or foreman at the facility.
Sindt testified he learned of the IBEW's organizing campaign at Respondent around
January 2011. Beginning in January or February, Sindt attended IBEW meetings around once a
month up to around July for a total of five to seven meetings. Sindt started passing out union
authorization cards at Respondent around April or May. Sindt passed out the cards in the
parking lot and sometimes on the floor at Respondent when they were no supervisors around.
He testified employees asked him for a card around once or twice a week.
Local 347 Organizer Courtland Pfaff was hired by the Union in September 2011, and he
became involved in the campaign at Respondent at that time. Pfaff held organizing campaign
meetings with Respondent's employees including one on September 26 in Albia attended by
about 10 to 15 employees. Pfaff met Douglas at the September 26 meeting. Pfaff testified
Douglas raised issues about safety concerns at Respondent at the meeting, as well as issues
about the way the employees were treated. During the September 26 meeting, Pfaff selected
Douglas to become a member of the Union's voluntary organizing committee. Pfaff and
Douglas exchanged phone numbers, and following the meeting they texted each other and
talked on the phone.
Douglas testified he became aware of the IBEW campaign in the spring of 2011.
Douglas heard about the campaign through rumors at the shop. Douglas attended about four or
five Local 347 meetings during the campaign starting in the spring of 2011 until his termination.
Douglas testified he attended the IBEW meeting on September 26 in Albia. Douglas testified
there was a discussion at the meeting that there was no longer a representative for coordination

6 Both Mark and Douglas Bachman testified during this proceeding. Mark Bachman was the
decision maker in the termination of Sindt and Douglas and as such he is a principal witness to
this proceeding. Mark Bachman will be referred to as Bachman; and Douglas Bachman will be
referred to as D. Bachman.
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of the union activities since employees Newton and Baugher had been terminated. Douglas
volunteered his services and informed Pfaff that Douglas had been a union steward in the past.
Douglas testified the conversation was in front of other employees. After September 26,
Douglas had meetings with Pfaff, and Douglas distributed union authorization cards to
employees and returned signed cards to Pfaff. Douglas had not distributed cards prior to
September 26. Douglas passed out cards in the locker room, the cafeteria, the main shop, and
in Respondent's parking lot. Douglas stored the authorization cards in his toolbox, which he
kept along the wall of the shop building or as close to him as possible. Douglas testified
employees asked him for a union card at least once a week, and they asked him questions
about the union campaign which he relayed to Pfaff for response.
Douglas testified that, shortly after the September 26, meeting, Douglas asked Sindt to
become involved in the IBEW campaign since Sindt, due to his job, had access to the paint and
blast booths at the plant. Thereafter, Sindt distributed blank authorization cards, and returned
signed cards to Douglas who gave them to Pfaff. Sindt confirmed that Douglas requested
Sindt's help in the campaign around September 2011 and Sindt agreed to help Douglas get the
cards signed. Sindt, on his own, was also getting cards signed prior to September.
Pfaff testified around October he went to Albia to collect authorization cards from
Douglas and they discussed strategy to organize Respondent. Pfaff testified Douglas was the
key person on the Union's organizing committee and he was in contact with Douglas weekly or
biweekly until Douglas was terminated on January 2, 2012. Pfaff testified Douglas called Pfaff
on the day of Douglas' discharge stating he could no longer be on the Union's committee
because he was discharged.
Pfaff testified he and union official Bob Thomas came to Respondent's facility in October
during a shift change at around 4 or 5:00 p.m. and hand billed on the roadside outside
Respondent's gate. Pfaff identified the packet of materials they distributed to employees in a
blank manila envelope. The envelope contained three pages of IBEW literature, a blank
authorization card, Pfaff's business card, and a Local 347 sticker. Pfaff estimated they gave
away around 60 envelopes that day. Pfaff gave Douglas six or seven of the envelopes for
distribution. Douglas was carpooling that day and Pfaff estimated there were four people in
Douglas’ vehicle. Pfaff testified no one threw anything back at him or Thomas from their car.
He testified it was a small area so he would have seen if something was thrown back. Pfaff and
Thomas were wearing IBEW sweatshirts containing large insignia on the front and back. Pfaff
testified he saw a vehicle that had a license plate including the letters RELCO. He testified it
was a white SUV or pickup. Pfaff saw the person in the vehicle take one of the manila
envelopes. Both Douglas and Sindt confirmed they saw the IBEW officials hand billing outside
the gate in October and they each received the Union's distribution materials on that date.
Douglas clocked in for work using computers located main shop. He estimated there are
about 8 to 12 of these computers. Douglas testified the day after the Local 347 hand billing
there were pictures posted at each of the computers containing about three or four lines of
writing, including the statement "You can see this is what your union dues go to." Douglas
testified the postings contained a picture of a multimillion dollar building containing the word
IBEW on it. Douglas testified all the postings were identical, and they remained posted above
the computers for about a week. Douglas testified he could not see how members of
management would not have seen the postings. Similarly, Sindt testified he saw a sheet
referencing the IBEW posted at all the login computers. He testified he saw the posting the day
after or shortly after the union hand billing. Sindt estimated there were 8 to 11 postings and he
stated one was also on the glass enclosed bulletin board near the entrance to the locker room.
Sindt testified postings were there for around 3 to 4 days. Sindt testified the postings contained
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a picture of a building with verbiage along the lines of union dues will pay for big fancy buildings
for their corporate headquarters.
Sindt testified that around a day or two after the hand billing at Respondent, Sindt was
scrapping out a cab off a locomotive when Supervisor Cliff Benboe approached Sindt and asked
him what he thought about the union. Sindt replied he had worked at a union and nonunion
place and it did not matter to him one way or the other. Benboe asked Sindt how he felt he was
treated at Respondent. Sindt said he felt he was treated fairly. Sindt testified he responded the
way he did because he felt his response could have impacted his job.
Sindt testified there are meetings every morning in the break room at Respondent before
the start of the shift where the supervisors give employees their daily assignments. The
supervisors conduct the meetings. Sindt testified Bachman attended on rare occasions. Sindt
testified that, after the Local 347 hand billing, Benboe made a comment on more than one
occasion at these meetings that unions are not all they are cracked up to be. Sindt testified
that, after the hand billing, Bachman made a comment on more than one occasion at these
meetings that he would rather keep everything in house and that he did not like unions.
Similarly, Douglas testified that during the fall of 2011 Benboe and Bachman discussed the
IBEW at the morning meetings. Douglas testified Benboe said sometimes a union is good and
sometimes they are bad and they just help the lazy people. Douglas testified Bachman said in
years past, even with the recent recession, that Respondent never had to lay off anyone, and
that if a union was brought in there was no promise this would not happen. Douglas testified
Bachman said this after but within a month of the union hand billing. Douglas testified Bachman
said if the employees had any questions to get a hold of him. Douglas testified everybody in the
shop that was working that morning, including the supervisors, would have attended the
meeting. Douglas testified Benboe and Bachman made their remarks about the Union in
separate meetings.
Douglas testified that sometime after Thanksgiving but before they went on their
Christmas break in 2011 which begins on December 23, they were doing a clean up at the end
of a shift. Douglas testified he had authorization cards sticking out of his back pocket. Douglas
testified Benboe noticed the cards and asked Douglas if he was doing that on company time
pointing at Douglas's pocket. Douglas replied no. He testified Benboe said, "You better not be."
Douglas testified that was the end of the conversation. Douglas testified that at the time
Benboe saw him with the union cards Douglas was in middle of the shop which is a work area
and it was during work time. Douglas testified the union cards were sticking out from his back
pocket far enough to see the IBEW insignia on the cards. Douglas knew the cards where
showing because when Benboe pointed to them, Douglas looked and saw them. Douglas
testified he did not know the cards were visible until Benboe mentioned it.7
Sindt testified he attended a small group meeting conducted by D. Bachman in
December 2011.8 Sindt testified D. Bachman set up group meetings in the cafeteria, also
known as the break room, with about 8 to 15 employees per group. Sindt testified a notice was

7 Douglas gave an affidavit on January 12, 2012, and although the affidavit contained a
section with the heading “Knowledge” in emboldened print and underlined, Douglas did not
mention anything as to this encounter with Benboe. Douglas did mention the described
conversation with Benboe in a subsequent affidavit.
8 Sindt testified, on cross-examination, he was pretty sure the meeting occurred in
December. Sindt testified it could have been in November. Sindt testified it was not in October,
and he thought it was after Thanksgiving.
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posted for the meetings in the hallway leading to the break room listing the time and employee's
name for the meeting they were to attend. Sindt's name was listed. He testified all the
employees were listed. The meeting Sindt attended took place from around 1:30 to 3:00 p.m.
Sindt testified D. Bachman wanted to know any ideas to make the plant more efficient and ideas
of how they could improve morale. Sindt testified there were quite a few suggestions from
employees. Sindt proposed a bonus that if you worked 30 days you received a half day pay. D.
Bachman said he liked the idea. Sindt testified there were about 10 to 15 different bonus
program suggestions at the meeting. Sindt testified that at the end of the meeting someone
asked D. Bachman if they had a problem how they could get in touch with him and he flipped
back a few pages on a poster board where his personal cell phone number was listed and Sindt
thought D. Bachman' e-mail address was also there. Sindt testified D. Bachman had not given
out his cell number or e-mail address in the past.
Sindt testified the only other meetings he recalled with D. Bachman were two, one in the
fall of 2010 relating to insurance and another in the fall of 2011 also concerning insurance.
Sindt testified that, during the one in the fall of 2011, D. Bachman said he would be back to hold
small group meetings with employees sometime later in the year in late November or early
December.9 Sindt testified he was not aware of any other meetings that D. Bachman held at
the plant. Sindt testified that he was aware in the fall of 2011 there was a big project coming up
involving the CSX railroad and he thought this was mentioned in one of the morning meetings.
Sindt testified he did not recall D. Bachman attending the meeting when they discussed CSX.
Sindt testified the only three meetings he recalls D. Bachman attending were the two for
insurance and one for small groups.
Douglas testified that, prior to his termination, he had seen D. Bachman at the Albia
facility around once or twice a year. Douglas testified that between the time of the IBEW hand
billing in October 2011 and his termination on January 2, 2012, Douglas saw D. Bachman at the
Albia facility. Douglas testified D. Bachman was talking to groups of six to eight employees at a
time and these meetings took place around the end of November or the beginning of
December.10 Douglas testified he attended one of these meetings in the cafeteria and D.
Bachman was the only member of management present. Douglas testified he learned of the
meeting because Respondent had postings in the hallway scheduling groups of employees for
the meetings listing each employee's name and the time they were to attend. Douglas testified
the postings took up half the hallway. Douglas testified the postings had the names of a lot of
employees broken down by their supervisor and craft. Douglas assumed he was required to
attend. Douglas testified at the meeting he attended, D. Bachman asked the employees if there
were any improvements Respondent could make for the employees to help improve production
and Respondent's relationship with its clients. Douglas testified that everyone had something to
say. Douglas testified he mentioned the need for better equipment and for some verification for
the supervisor who was testing employees pertaining to welding. Douglas testified Benboe
coordinated the welding certification tests. Douglas had been welding for a long time, and he
testified he did not believe Benboe was certified. Douglas testified there were a lot of other

9 Along these lines, Sindt gave an affidavit on February 29, 2012, which reads, "Back in
October or November of 2011, D. Bachman came to a morning meeting and said he would be
meeting with a bunch of guys. That the groups would be 10 to 15 guys, there would be several
meetings." The affidavit continues, "The meetings actually took place in December. It was
mandatory for everyone to go to these meetings."
10 Douglas later testified D. Bachman held the small group meetings with employees in late
October or early November. He testified the meetings could have been in early December, but
he thought they took place in November.
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employees who agreed with him. Douglas testified one of the suggestions was better
communication between the supervisors and all of management. Douglas testified that, during
the meeting, D. Bachman wrote his cell phone number on an eraser board and said this was his
personal cell number if the employees had any questions or concerns feel free to call. Douglas
testified D. Bachman had never offered Douglas his personal phone number before. Douglas
testified he had never previously attended a meeting conducted by D. Bachman at the Albia
plant where discussions took place about how to improve working conditions. Douglas testified
D. Bachman had held other meetings at the plant in the past that Douglas had attended but
those were annual meetings in which D. Bachman reviewed Respondent's insurance offerings
with employees. Douglas testified that everyone attended the insurance meeting at once.
Douglas testified this took place 2010 and 2011. Douglas testified aside from the two insurance
meanings he was not aware of any other meetings D. Bachman held with employees.
B. The testimony of Respondent’s witnesses concerning
knowledge and response to the IBEW campaign
Bachman testified that in the past Respondent has had unions and they also negotiated
a contract for a potential off-site facility, where the employees would be represented by a union.
He testified there had been unions at Respondent's Provo, Utah and Kansas City locations.
Bachman testified in Provo there was a union from 1988 to 1989 for around 12 years before the
facility shut down. Bachman testified Respondent provided maintenance services at the Provo
steel mill until it shut down. Bachman testified in Kansas City there was a contract to be
negotiated, but it never took effect because Respondent’s customer withdrew its offer during the
downturn in the economy in 2009. He testified when Respondent considered opening the plant
it was to be entirely organized by the IBEW. He testified the plant was intended to service one
particular customer. I do not put much credence into deciding this case relating to Bachman’s
testimony concerning his prior experience with organized or possibly organized facilities. Here,
Bachman’s testimony was sketchy at best, and it is not of a choice of an employer whether a
facility becomes organized rather it is the choice of the employees working there. The fact that
Respondent may have had an organized facility in the past, does not display one way or the
other its current attitude towards Unions.11
Bachman testified as chief operating officer of the Albia plant one of his duties is to
ensure that the plant complies with applicable laws. In terms of labor law, Bachman testified
Respondent has had various training sessions with its supervisors to refresh them on what the
various "do's and don'ts" as to what they could talk to employees about. Bachman testified the
supervisors were trained multiple times as to what they could and could not ask an employee
and they have been taught not to question an employee about their union affiliation.
Bachman testified he did not talk about the IBEW or unions in any of the morning
meetings with employees in 2011. Bachman testified he would not have talked about unions at
a morning meeting because he knew it was not something Respondent could do. I found

11 Similarly, Respondent introduced evidence of Benboe’s prior employment with certain
labor organizations, as well his history of holding union office prior to his employment with
Respondent in support of a contention that he would not be involved in any unlawful conduct
concerning union activities of Respondent’s employees. However, despite any past activities,
Benboe impressed me as someone who was very loyal to Respondent, his current employer,
and that he would adopt his position towards unions to that established by Bachman. Moreover,
for various reasons enunciated herein, I did not find Benboe’s testimony concerning the IBEW
campaign at Respondent to be credible.
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Bachman’s testimony here to be questionable. He testified Respondent’s officials received
training as to what they could or could not say about a union, and certain statements as to an
employer’s opinion about a union are protected under Section 8(c) of the Act. Therefore, his
contention that he could not say anything undermines the validity of his contention that training
was received as well as his contention that he did not say anything about it. There was a clear
theme amongst the testimony of Respondent’s officials to obfuscate or testify in absolutes such
as Bachman’s contention that he did not say anything about the Union. The tenor of their
testimony suggests that they were intentionally not giving a correct account of what actually
transpired. Moreover, it calls into question the reliability of their denials such as Bachman’s
claim that he did not state at a morning meeting that Respondent never had layoffs but if the
Union came in there was no promise that would not happen.
Bachman testified he “surmised” that an IBEW organizing campaign took place at
Respondent's facility in 2011. Bachman testified he knew the IBEW was trying to organize by a
letter he found stating, "That's the extent of what I know about it." Bachman then testified that in
October 2011, he either received a report, or saw a person at the end of the driveway at
Respondent's facility. Bachman identified his affidavit dated April 6, 2012, wherein he stated
that, "Sometime during the last half of the year, I had a report that there was a person out at the
end of the driveway. I looked out and saw a car at the end of the driveway." Bachman testified
at the hearing that he could not recall who he received the report from. Bachman testified he
surmised that IBEW reps were hand billing outside of Respondent's facility because Bachman
found an IBEW handbill on his desk the next day, which was why Bachman concluded the car
belonged to someone from the IBEW. Bachman testified he did not know who put the handbill
on his desk. Bachman testified the IBEW handbill was in an envelope that he found on his
desk. Bachman testified he guessed the handbill came from the car he saw outside the gate
because the car sat there for a long time. Bachman testified the envelope on his desk
contained miscellaneous propaganda including an authorization card and an IBEW booklet.
Bachman testified he did not recall discussing the envelope with members of management,
including Benboe or D. Bachman. Bachman testified he did not direct anybody to gather
materials from the people at the gate. Bachman’s testimony here is that he mysteriously
received an envelope on his desk concerning a union campaign, from an unknown source, an
issue of concern or interest to most employers, but he discussed it with no one from
management. An absolute that, I do not find credible.12

12 Along these lines, Bachman testified he attended an unfair labor practice trial on August 9
and 10, 2011, during which he sat at counsel table for the entire hearing. Bachman denied
hearing testimony by an employee that the employees were trying to bring in the IBEW to
Respondent during that trial. However, the August 9, transcript reflects that an employee
testified that he was aware an employee of Respondent contacted the IBEW in January 2011,
and the employee who testified attended IBEW meetings in January and February 2011. The
employee was questioned about his attendance at the IBEW meetings both on direct and cross-
examination. I do not credit Bachman’s claim that he did not learn of an IBEW campaign during
the August trial, particularly since his own attorney questioned the witness about it and would
likely have discussed this aspect of the witness’ testimony with Bachman. An organization
campaign by another union at the time Respondent was going through an unfair labor practice
trial certainly would have been a matter of interest to all concerned. I do not find Respondent’s
arguments persuasive that I should not have allowed Bachman to be questioned about the prior
proceeding because the employee who testified at that time was not called as a witness in the
current case. The testimony at the prior proceeding was not admitted for the truth of
employee’s testimony, but only that Bachman had knowledge of his claims as evidence that
Bachman was aware of a union campaign. Moreover, I have credited Sindt’s testimony at the
Continued
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Respondent’s other witnesses took a similar approach in their testimony in their efforts to
deny knowledge of the IBEW campaign. Despite the IBEW’s hand billing at Respondent’s
facility in October, and the subsequent posting at Respondent’s facility at the log in computers in
Respondent’s shop of anti-IBEW literature for several days, Benboe incredibly claimed he did
not learn of the IBEW campaign in 2011. Rather, he testified the first time he learned of it was
when he gave an affidavit in response to the current unfair labor practice charge. As previously
mentioned, Bachman’s testimony reveals that he “surmised” there was a campaign in October,
and he also claims his supervisors were trained as to how to respond to union activity. It seems
a little inconsistent for him to beware of union activity at the facility, but not bother to inform the
supervisors such as Benboe of that activity so that they could respond to it in an appropriate
manner. I do not credit Benboe’s claim that he did not become aware of the October hand
billing at the facility at least by general word of mouth, nor do I credit any contention that it was
not discussed amongst the supervisors and upper level management. This hear and see no evil
approach was similarly taken by Respondent Supervisor Shipp who claims he received an
envelope containing union materials from the IBEW officials the day they were hand billing, but
to have thrown it back unopened out his car window. Shipp testified he knew it was an IBEW
document when he looked at the front of it. I do not credit Shipp’s testimony that he threw the
document out the window. First, IBEW Organizer Pfaff credibly testified he would have
observed any one throwing the distribution out of the window, and this did not occur. Second,
Pfaff credibly testified IBEW materials were handed out in unmarked manila envelopes. Thus, I
have concluded that, contrary to his assertion at the hearing, Shipp received the envelope for
the Union officials and kept it.13 Despite admittedly being offered an IBEW document during a
hand billing session at Respondent’s front gate, Shipp took a similar approach to Respondent’s
other officials by trying to minimize the spread of knowledge of union activity. He incredibly
claimed that he did not discuss the hand billing incident with anyone from management, that he
could not recall if he discussed it with employees, and that at the time he testified at the unfair
labor practice trial was the first time he discussed it with anyone.
Despite the contention of Bachman and Shipp that they did not discuss the union
campaign with anyone, and the claim of Benboe that he did not know about it; D. Bachman, a
part owner of Respondent, who does not work at the Albia facility, and who testified he only
occasionally visits that facility testified he came to the facility on October 19, and that as of that
date, he knew that some time before then someone from the IBEW was handing out union
material at the front gate. D. Bachman’s knowledge was unexplained particularly since
Bachman, his brother, claimed not to have discussed it with him. Thus, I have concluded for the
reasons stated that, contrary to the testimony of Bachman, Benboe, and Shipp, the IBEW's
October hand billing was a widely discussed topic amongst Respondent’s management, and
that they all knew and talked about it more than they were willing to admit.
Bachman testified that following the IBEW hand billing, around a month later, he saw a
picture on one of Respondent's computer terminals where employees are required to clock in.
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current proceeding that the IBEW campaign began in early 2011 at Respondent’s facility, which
for purposes of this case establishes that the IBEW did begin to try and organize Respondent’s
facility in early 2011.
13 Pfaff testified he and the other hand biller were wearing prominent IBEW insignia at the
time of the distribution, but this was not how Shipp claimed he knew it was an IBEW distribution.
Rather, he claimed it was by reading a label on the distribution. Shipp also testified in front of
Bachman, which given Respondent’s anti-union posture, is a likely reason Shipp refused to
admit he kept the distribution at the time of his testimony.
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He testified he was "pretty sure" the picture was not posted the day following the hand billing.
Bachman testified the picture referenced the IBEW. Bachman testified it was a picture of an
office building of the IBEW. Bachman did not recall what the writing said on the picture.
Bachman did not know who posted the picture. Bachman testified they have 8 to 10 computers
where employees sign in. He testified the picture was on only one computer and it was taped to
the back. When asked if it was for or against the Union, Bachman testified it did not say
anything. It just had a picture of their facility. Bachman then testified he did not recall what it
said on it when asked if it said IBEW. However, he testified he knew it was an IBEW facility.
Bachman testified the document had two or three pictures of an office building that was quite
nice. Bachman testified he did not recall the words, but he admitted the picture had a heading.
Bachman testified management did not post the picture, and he threw it away immediately upon
seeing it. Bachman testified no one asked permission to post it. Bachman testified they do not
allow employees to post things.
Bachman’s testimony confirms that of Douglas and Sindt that an anti-IBEW picture was
posted at Respondent’s facility. Both Douglas and Sindt credibly testified the picture was
posted a day following, or shortly after the Union’s hand billing, a fact that Bachman did not
affirmatively deny. I have credited the testimony of Douglas and Sindt over Bachman that
copies of the picture were posted at multiple log in computers rather than just one as Bachman
claimed. I have also credited their testimony that the pictures were posted for multiple days with
Douglas estimating about a week and Sindt 3 or 4 days, over Bachman’s claim that he took it
down after one day. I do not find Respondent’s argument that the discrepancy in the precise
number of days the picture was posted between Sindt and Douglas undermines their assertion
that it was posted for multiple days. For, at the time, neither had a reason to make a record or a
note of each day they saw the posting. Having found the picture was posted in plain view of the
shop for multiple days on the Respondent’s property, I can only conclude that it was posted by
Respondent. For, as Bachman testified, Respondent does not allow employees to post things,
and as Douglas testified given the number of copies of the picture and the location it was
posted, Respondent’s officials could not have helped but see it. Thus, the reasonable inference
is that Respondent posted the pictures, or at a minimum condoned the anti-union postings.
Bachman testified D. Bachman periodically holds meetings for employees at the Albia
facility. Bachman testified that in December they held their health insurance benefits meeting
for the following year. Bachman testified everyone was in the break room, and the health
insurance people were there. However, when asked if D. Bachman was at the facility in
December 2011, Bachman testified he was not sure. He testified he thought it was at the
beginning of December but that it could have been the end of November. Bachman testified it
was the same period every year.
When asked if D. Bachman held small group meetings with employees in December
2011, Bachman testified, "I don't know when it was," and "I wouldn't call them small group
meetings." Bachman testified "It was the entire facility." Bachman then explained "it was who
could fit in our conference room." When later asked if D. Bachman held meetings in November
or December with groups of employees, Bachman testified, "I don't recall the exact date. It was
towards the end of the year. It was continuation of the meetings that I held for two years prior to
that."14 Bachman testified D. Bachman met with groups of employees in Respondent's
conference room. Bachman testified 10 to 18 people fit in the conference room. While

14 Bachman later testified D. Bachman may have come to Albia for a meeting in November
or December. Bachman testified that he and his brother were out of the country for during mid-
December and returned on Christmas Day.
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Bachman testified the meetings were voluntary, he testified employees knew what time to
attend based on a posted schedule. Bachman thought D. Bachman had a series of meetings
with employees but Bachman did not attend the meetings. Bachman testified he and D.
Bachman talked about the meetings. Bachman testified they discussed a lot of different
versions of what the meetings were because in that time frame they were winding down
Bachman's safety and process improvement teams. When asked a leading question whether
D. Bachman told Bachman he was going to have a meeting in October 2011 to get ready for the
CSX Railroad project, Bachman testified he remembered discussing that issue. He testified he
did not remember the time frame it was but stated they had correspondence with employees to
update them. When asked if he knew if the CSX project was the primary subject of D.
Bachman's meetings in October, Bachman testified he thought they were talking about two
different meetings. Bachman testified he was with D. Bachman when they discussed a CSX
meeting and that was with the whole group of individuals in the conference room.
Bachman later testified he was aware D. Bachman came to the facility and held
meetings with groups of 8 to 15 employees and multiple meetings in one day. Bachman
testified he did not know the time frame of these meetings. Bachman testified they discussed
various ideas concerning these meetings but he did not recall the exact outline of what D.
Bachman was doing. He testified they discussed the concept of the continuation of the process
of improvements and safety issues. Bachman testified he did not recall what D. Bachman
actually did at these meetings. When asked if there was a written schedule posted for
employees to attend the meetings, Bachman testified they broke people up into groups because
there were too many people as a whole to have a town hall meeting. He testified D. Bachman
would meet with 10 employees at a time. Bachman testified he did not know if D. Bachman’s
meetings with groups of employees were before or after the IBEW people came to the facility.
Bachman testified in response to leading questions that there were prior meetings where D.
Bachman came to Albia to meet with small groups of employees and get their input on various
processes and ways to improve things. Bachman testified the meetings are continual and when
asked if they were in 2010 and 2011, he testified "All the time." As disclosed by the above
recap of Bachman’s testimony concerning his brother’s meetings with groups of employees, I
found Bachman’s testimony to be inconsistent, marked by poor recall, and somewhat evasive.
D. Bachman testified he is the chief administrative officer with Respondent. He testified
he did not have any direct responsibilities with respect to the Albia plant. However, D. Bachman
testified that he does periodically go to the plant to meet with the production employees and he
started doing so in 2005. D. Bachman testified he did not go to the Albia plant during November
or December 2011. D. Bachman testified he did have a series of voluntary meetings with
production employees in the middle of October 2011. He testified the purpose of those
meetings was to discuss a large contract bringing work to Respondent from the CSX Railroad
and the need to do that work well. He testified the meetings with employees were productivity
enhancement meetings relating to how they could improve the infrastructure to get work out. D.
Bachman testified Respondent planned for the October meetings in August when CSX officials
came to town. He testified they had a meeting at that time with employees to let them know the
CSX officials were coming and they were going to have to figure out how to get the work
done.15 D. Bachman testified they discussed a wide variety of things including specific work

15 D. Bachman testified he had many meetings with small groups of employees over the
years. D. Bachman testified that in 2011 he met with small groups of employees three or four
times prior to October. D. Bachman testified he had about three to five meetings with small
groups of employees in 2010. D. Bachman testified Albia produces a product that Respondent
administers back in Lisle. D. Bachman testified his purpose was to go out there and find out
Continued
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processes, training, tooling, and the availability of detail on the project plans during the October
meetings. D. Bachman testified when he conducts a meeting he usually has a flip chart, lays
out the problem and in that particular case the challenge was all the work coming in with CSX.
D. Bachman testified he would ask employees to help them better understand how they can
address the problem, the employees start talking, D. Bachman will put their comments on the
board and then they discuss it at the meeting. D. Bachman testified he asked employees for
input about the production processes. He denied that he discussed working conditions such as
wages, benefits, and hours. D. Bachman testified that in October there were several meetings
with groups of employees over a 2 day period of time. D. Bachman testified they received lots
of input because it was such a critical customer coming online.
D. Bachman identified a list with the heading “DAB Round-Table Discussions” which he
testified he had compiled showing dates of meetings with topics that he held at Albia from 2006
to 2011. The list showed one meeting held on October 19, 2011, with the topic listed as
"Productivity General." He testified the purpose of the meeting was to improve productivity. D.
Bachman testified the October 19 meeting was a series of meetings with various groups of
employees. D. Bachman testified many of the other meetings listed on his list involved a series
of meetings with groups of employees. D. Bachman testified in 2009 they were launching a new
payroll system that required the time entry on various computers around the shop so they met
with groups of employees about how to design the interface effectively. He testified in 2010, his
focus was the economy was rebounding and Respondent's productivity was flat so they needed
to sort that out. D. Bachman testified that in 2011 the safety meeting in July was with groups of
employees and then again in October they were talking about productivity. D. Bachman
testified he solicited employee input during each of the meetings. D. Bachman identified what
he labeled as a compendium of all the flip chart notes he made during meetings. He testified it
was organized into subject areas so he could keep track of what people said and determine if
there was something to improve their methods and procedures. D. Bachman's list related to all
the meetings from 2006 to 2011. He testified his notes from the October 19, 2011 meeting,
which was the most recent, would be interspersed on the list amongst notes from all of the
meetings. D. Bachman recalled, during the October 19 meeting, suggestions concerning the
way they write the project plans. He testified during meetings the employees made some
suggestions about how to better maintain and disburse inventory. D. Bachman testified the
purpose of the meetings was not to discuss union activity at the Albia plant. D. Bachman
testified there was no discussion about union activity but people could blurt out what they want.
However, D. Bachman testified no one blurted anything about the union activity in the 2011
meetings. D. Bachman testified he did know that, sometime before the October 19 meeting, the
IBEW was handing out material outside Respondent’s gate.
D. Bachman testified the CSX project would have been a component of the October 19
meeting.16 D. Bachman testified he thought they started getting locomotives for the CSX project
in November and December 2011, and that continued at the time of the hearing. He testified
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how things were going, how they could make improvements in productivity and efficiency, and
to meet customer needs. D. Bachman testified in response to leading questions that during the
meetings he had with employees in 2010 and 2011 he always asked for employee input for
ways to improve productivity.
16 D. Bachman testified concerning the October 19 meeting that in August high level officials
from CSX came to Albia. D. Bachman testified they day after they left, he had a meeting with
the entire plant and he announced there would be a meeting in the third quarter to get
themselves ready for the CSX work. D. Bachman testified they started planning the October 19
meetings in August.
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the CSX project involved mechanical work and fabricators. D. Bachman testified there was no
time frame for the project to be completed which was why it was so important. D. Bachman
testified if they could do the work well they would continue to do it for years. D. Bachman did
not know how many small group meetings of employees he held on October 19. He testified
they were running almost all day long and took almost two days to complete. D. Bachman
testified they broke the employees into groups and posted those groups along the wall in the
hallway. D. Bachman testified about a dozen employees attended each meeting. D. Bachman
testified all the posting said was the employee name and time of the meeting. D. Bachman
testified that most of the meetings were in the lunch room/break room. D. Bachman testified the
round table discussions were always voluntary meetings. D. Bachman testified he October 19,
2011 "Productivity General" meeting was a roundtable discussion.
I did not find D. Bachman’s testimony as to the nature and scope of his listed meetings
to be very convincing. He often spoke in generalities, did not provide original notes or outlines
of any of the meetings, and his description of the group meetings which he claimed he held on
October 19, 2011 were not confirmed by Bachman who testified he thought the meetings were
held in November or December, and did not place them as relating as to the CSX account, but
rather as a continuation of meetings Bachman claimed to be holding for the past two years.
Moreover, D. Bachman listed seven meetings in 2010 and 2011 in his “Round-Table” list to
which he claimed employees were invited and to which according to their hire dates, Douglas
and Sindt would have been eligible to attend. Yet, they both credibly testified they only attended
three meetings with D. Bachman, two in which he annually discussed the next years insurance
benefits with the whole staff, and the other the meeting at issue herein where D. Bachman met
with groups of about 10 employees in the break room, and these meetings were scheduled for
the entire staff of employees. Thus, regardless of whether he had conducted meetings in the
past where some employees were invited to attend, I find that none were of the breadth and
nature as the group meetings he conducted toward the end of 2011 where a schedule for the
whole staff was posted.
Moreover, while D. Bachman testified his prior meetings were voluntary, I find by the
way the employees were notified of the meetings in dispute here they were mandatory. First, D.
Bachman testified only the employee’s name and time of appearance was listed on
Respondent's posted schedule. The meetings appeared to be during the work day, and by
Respondent’s own admission there was nothing on the posting informing employees they did
not have to attend. A reasonable employee, given the circumstances and the nature of the
posting, could only conclude their attendance was required. I have also credited Sindt and
Douglas as to their testimony as to what was discussed at the meetings they attended. In this
regard, D. Bachman testified the purpose of these meetings was to improve productivity. In
fact, Sindt testified productivity related bonuses were brought up with D. Bachman’s approval at
the meeting he attended. In fact, D. Bachman’s summary of what was discussed at his “Round-
Table” meetings included in the list five different types of bonuses, a night differential, a
reference to increased overtime, references to personal days, the addition of a department,
profit sharing, career path with employee evaluation with reference to money, etc. D. Bachman
did not testify when these matters were discussed, however, I have concluded it was likely that
some if not most of them were discussed during the meetings which he testified took place on
October 19 in view of the open ended nature of the meetings. In fact, the only thing he claimed
was not on topic for these meetings was the Union. In a transparent effort, as did Respondent’s
other officials through their testimony, to keep union activity out of the picture. D. Bachman
testified he was aware the IBEW hand billing took place prior to the time he held these
meetings, and I have concluded the meetings were in a direct response to that hand billing as
opposed to D. Bachman’s claims that they were previously planned as a result of the CSX
account, an assertion that was not confirmed by Bachman.
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My conclusion as to the nature and purpose of D. Bachman’s group meetings was also
confirmed by the testimony of Supervisor Benboe. Benboe testified D. Bachman occasionally
comes to the Albia plant. As did Douglas and Sindt, Benboe testified D. Bachman comes to the
plant once a year at the end of the year to speak with employees regarding insurance. Benboe
testified that in addition to the insurance meetings, Benboe thought D. Bachman came to the
plant in December 2011 and held small group sessions with employees. Benboe testified he
thought the meetings were about shop improvements and employee improvements. Similarly,
Benboe testified in his pre-hearing affidavit that, "I seem to recall that Doug Bachman came
down and talked to employees in small group sessions about shop improvements and employee
improvements. I was not involved in these meetings, but I was aware of them. It was my
understanding that these meetings were going to be about plant and employee improvements."
Thus, Benboe, like Sindt and Douglas did not mention in his testimony that he was aware of any
other meetings conducted by D. Bachman that employees attended other than the annual
insurance meetings, and the one time group meetings at the end of 2011. While Benboe
claimed he did not attend the meetings, it was likely that, as a member of management, he was
informed of the topics of the meetings as he testified since the whole employee staff attended
and their scheduled attendance was posted in plain view. Accordingly, for all the reasons
mentioned, I have credited Sindt and Douglas description of the employee group meetings.
C. The Section 8(a)(1) allegations
1. The interrogations and related conduct
In determining whether a supervisor's questions to an employee constitutes an unlawful
interrogation, the Board examines whether, under all the circumstances, the questioning tends
to interfere with, restrain, or coerce employees in the exercise of Section 7 rights. Rossmore
House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). In making this assessment,
the Board reviews various factors, including whether the employee is an open union supporter,
the employer's background (whether there is a history of employer hostility and discrimination),
the nature of the information sought (whether the interrogator appeared to be seeking
information on which to base action against individual employees), the identity of the questioner
in terms of how high they are in the company hierarchy, the place and method of the
interrogation, and the truthfulness of the reply. Medcare Associates, Inc., 330 NLRB 935, 939
(2000). The Board will determine whether under all the circumstances the questioning would
reasonably tend to coerce the employee at whom it is directed so they would feel restrained
from exercising their Section 7 rights. Carroll & Carroll, Inc., 340 NLRB 1328, 1332 (2003).
The complaint alleges that in October 2011, Respondent through Benboe interrogated
an employee about the employee’s union activities.17 Sindt’s hire date with Respondent was

17 Respondent admits that supervisors Benboe and Shipp, as well as other named
individuals in the complaint are statutory supervisors within the meaning of Section 2(11) of the
Act, but denied they are agents within the meaning of Section 2(13) of the Act. However, the
Board has held under Section 2(13) of the Act an employer is bound by acts and statements of
its supervisors whether specifically authorized or not. See Sysco Food Services of Cleveland,
347 NLRB 1024, 1034 fn. 23 (2006); Ideal Elevator Corp., 295 NLRB 347 fn. 2 (1989); and
Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833 F.2d 1263 (7th Cir. 1987).
Here, Benboe played a particularly important role at the plant as his visual inspection was
required before an employee could become certified as a welder. Moreover, Benboe and Shipp
were also given authority to speak on behalf of Respondent in that they represented
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April 5, 2010. He credibly testified that within a month of his hire date he became aware of the
organizing efforts of the Brotherhood of Railroad Signalman and he was informed of it by former
employee Charles Newton. Newton was discharged by Respondent on March 11, 2011.18
Sindt’s testimony reveals he was aware of Newton’s union activity and of his termination by
Respondent. During the IBEW campaign, Sindt was an active but not open union adherent.
Sindt began his union activities around January 2011 and his activities continued thereafter
during which time he attended union meetings and distributed union cards in and around
Respondent’s facility. In October 2011, IBEW officials openly hand billed at the gate at
Respondent’s parking lot. I have concluded that Respondent’s officials including Benboe,
despite his denial of such knowledge, quickly became aware of the hand billing.19 In this regard,
Sindt credibly testified that around a day or two after the IBEW hand billing at Respondent, Sindt
was scrapping out a cab off a locomotive when Benboe approached him and asked him what he
thought about the Union. Sindt responded he had worked at a union and nonunion place and it
did not matter to him one way or the other. Benboe asked Sindt how he felt he was treated at
Respondent and Sindt said he felt he was treated fairly. Sindt testified he responded this way,
despite his pro-IBEW activities, because he felt affirmatively announcing his support for the
Union could have impacted his job.20
In sum, I find Benboe’s questioning of Sindt was a coercive interrogation. Benboe was
one of only six supervisors at Respondent’s facility and he directly supervised Sindt during
periods of his employment. Moreover, he was the only supervisor whose visual inspections
directly impacted on whether Sindt passed his welding test at Respondent. Benboe was also
involved in Respondent’s evaluation process, and he was the supervisor selected to
subsequently inform Sindt and Douglas of their terminations marking his status at Respondent.
Sindt was not an open union adherent at Respondent. Additionally, at the time of his
questioning by Benboe, Sindt was aware that Newton, a prior union adherent, had been
discharged. Benboe and Bachman’s statements against the union during the morning meetings
reveals that Respondent’s anti union stance continued at the time of Benboe’s questioning of
Sindt. Moreover, Sindt credibly testified he did not give Benboe a truthful response as to Sindt’s
pro-union stance because he feared for his job. Accordingly, I find Benboe’s questioning of
Sindt to be violative of Section 8(a)(1) of the Act. See, Medcare Associates, Inc., supra, and
Carroll & Carroll, Inc., supra.21
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Respondent during employee evaluation and termination meetings.
18 Newton's discharge was found to be violative of Section 8(a)(1), (3) and (4) of the Act by
the Board See, Relco II.
19 For the same reasons I have concluded Benboe did not credibly testify when he denied
knowledge of the hand billing or of the IBEW campaign, I do not credit his claim that he did not
question employees about their union activities. Benboe impressed me as someone who was
very loyal to Respondent. He also did not appear to be someone who was likely to keep silent
about such a hot topic as union activity at Respondent as he claimed. Moreover, considering
his demeanor, the content of his testimony and recall, I found Sindt to be a credible witness.
20 Sindt credibly testified that following the Union’s hand billing at Respondent’s facility both
Benboe and Bachman made negative remarks to the employees about unions during
Respondent’s morning meetings. He testified Benboe commented on more than one occasion
that unions are not all they are cracked up to be; and Bachman made a comment on more than
one occasion that he would rather keep everything in house and he did not like unions.
21 I do not find cases cited by Respondent to require a different result. In NLRB v. Armour &
Co., 213 F.2d 625 (5th Cir. 1954), the employees questioned were not discharged. Similarly, in
NLRB v. Homemaker Shops, Inc., 724 F.2d 535, 549 (6th Cir. 1984), in finding the questioning
of two employees not to be unlawful, the court noted neither of the questioned employees were
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Douglas credibly testified as follows: Between Thanksgiving and before the Christmas
shutdown in 2011 they were doing a clean up at the end of the shift. Douglas unknowingly had
authorization cards sticking out of his back pocket. Benboe noticed the cards and asked
Douglas if he was doing that on company time pointing at Douglas's back pocket. Douglas
replied no. Benboe said, "You better not be." Douglas testified he only knew the cards where
showing because when Benboe pointed to them, Douglas looked and then saw them.22 I find
Benboe’s questioning of Douglas concerning his union activities constituted a coercive
interrogation in violation of Section 8(a)(1) of the Act. The questioning came with the back drop
of Benboe and Bachman’s negative comments towards unions during the morning meetings, as
well as the anti-union posting at Respondent’s facility where employees signed in at work, which
again I have concluded Respondent posted, or condoned. While Douglas distributed the cards
at Respondent’s facility, there is no contention that he openly discussed the matter with any of
Respondent’s officials. In fact, Douglas was not aware the union cards were showing until
Benboe pointed it out to him. I have concluded Douglas, having the cards in his back pocket,
did not display them in such a manner as to purposely draw attention about his union activity or
to otherwise invite comment. I also find Benboe’s instruction to Douglas not to distribute the
cards on “company time” constituted an unlawful instruction. The Board has held a statement
prohibiting an employee from soliciting signatures for a union on “company time” and during
“working hours” is violative of Section 8(a)(1), because it can be interpreted by the employee
that he is not permitted to engage in such activity on his own time at the Respondent’s premises
such as breaks or other nonworking periods. See, Manor Mechanical Contractors, Inc., 357
NLRB No. 128 (2011); Loparex LLC, 353 NLRB 1224, 1233-1234 (2009); and St. George
Warehouse, Inc., 331 NLRB 454, 462 (2000), enfd. mem. 261 F.3d 493 (3d Cir. 2001).
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discharged or disciplined, and in both instances the interrogated employee demonstrated a lack
of fear or coercion. These elements are not present here. In fact, Sindt and Douglas, two
leading union adherents, were both interrogated by Benboe, and were discharged by Benboe
shortly after the union openly came on the scene for reasons I have found to be pretextual. I
have also found that Respondent, following the Union's October hand billing, solicited and
impliedly promised to remedy grievances during multiple meetings with its employees, and that
Respondent's officials condoned or posted anti union literature at employee clock in computers.
Accordingly, I find cases cited by Respondent are distinguishable and that Benboe's questioning
of Sindt and Douglas within close proximity to when he notified them of their discharges
constituted a coercive interrogation.
22 Respondent argues I should not credit Douglas’ testimony because his initial affidavit did
not reference the described encounter with Benboe. While the omission from the affidavit is
troublesome, I do not find it sufficient to discredit this aspect of Douglas’ testimony. See Gold
Circle Department Stores, 207 NLRB 1005, 1010 fn. 5 (1973). In this regard, Douglas assertion
that he was distributing union cards at Respondent’s facility since September was corroborated
by Pfaff and Sindt. Second, Douglas credibly testified he kept those cards in his pocket when
he did not have the opportunity to deposit them in his toolbox. Third, for reasons stated, I did
not find Benboe’s claim that he was unaware of the union campaign at Respondent’s facility to
withstand scrutiny. I also have credited Sindt that Benboe questioned him about the Union, and
that Benboe spoke out against it during some of the morning meetings, further undercutting
Benboe’s testimony that he was unaware of the union campaign until he gave his affidavit in
response to the unfair labor practice charge. Finally, considering his demeanor, I find that
Douglas gave a credible account of the described encounter with Benboe on both direct and
cross-examination. I have found, despite the omission from his affidavit, the record as a whole
supports Douglas' testimony concerning the encounter.
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2. The solicitation of and implied remedy of grievances
In Latino Express, Inc., 358 NLRB No. 94 at 11 (2012) it was stated:
An employer interferes with Section 7 rights where he solicits employee grievances
during an organizational campaign and promises, either expressly or implied, that those
grievances will be remedied. Briarwood Hilton, 222 NLRB 986, 989 (1976); see Capital
EMI Music, 311 NLRB 997, 1007 (1993) (holding that soliciting grievances during union
organizing inherently constitutes an implied promise to remedy them). Implicit in that
promise is that unionizing is unnecessary because the employees' grievances will be
righted absent a union. House of Mosaics, Inc., 215 NLRB 704, 704 (1974). Where an
employer solicits grievances in accordance with past practices, prior to any union
activity, however, he may not have violated the Act. Yale New Haven Hospital, supra at
365.
Sindt testified he attended a small group meeting conducted by D. Bachman in
December 2011.23 Sindt testified D. Bachman set up group meetings in the cafeteria, also
known as the break room, with about 8 to 15 employees per group. Sindt testified a notice was
posted for the meetings in the hallway leading to the break room listing the time and employee's
name for the meeting they were to attend. He testified all the employees were listed. Sindt
testified that, during the meeting, D. Bachman wanted to know ideas to make the plant more
efficient and to improve morale. Sindt testified there were quite a few suggestions as to how
this could be accomplished. Sindt testified he proposed a bonus of a half day’s pay if someone
worked 30 days. D. Bachman said he liked the idea. Sindt testified there were 10 to 15
different employee suggestions including a bonus program for getting jobs done on time. Sindt
testified at the end of the meeting someone asked D. Bachman if they had a problem how they
could get in touch with him and he flipped back pages on a poster board where his personal cell
phone number was listed. Sindt thought D. Bachman' e-mail address was also there. Sindt
testified that D. Bachman had not given out his cell number or e-mail address in the past.
Similarly, Douglas testified that, around the end of November or the beginning of
December, D. Bachman spoke to groups of six to eight employees at a time.24 Like Sindt
Douglas learned of the meetings through a posted schedule at Respondent listing each
employee's name and the time they were to attend. Douglas testified the postings took up half
the hallway. Douglas testified he assumed he was required to attend. Douglas testified at the
meeting, D. Bachman asked employees if there were any improvements Respondent could
make for the employees to help improve production and Respondent's relationship with its
clients. Douglas testified everyone had something to say. Douglas mentioned the need for
better equipment and for some verification for Benboe’s qualifications to issue welding
certifications. Douglas testified he had seen Benboe's welds, and he did not believe Benboe
was certified. Douglas testified there were a lot of other employees who agreed with him.
Douglas testified one of the suggestions was better communication between the supervisors
and management. Douglas testified D. Bachman wrote his cell phone number on an eraser
board and said this was his personal number if the employees had any questions or concerns

23 Sindt testified, on cross-examination, he was pretty sure the meeting occurred in
December, but it could have been in November. Sindt testified it was not in October. Sindt
testified he thought the meeting was after Thanksgiving.
24 Douglas later testified D. Bachman held these meetings with employees in late October or
early November. He testified the meetings could have been in early December, but he thought
they took place in November.
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feel free to call. Prior to this, D. Bachman had not offered Douglas his phone number.
Sindt testified the only other meetings he recalled with D. Bachman were two, one in the
fall of 2010 and one in the fall of 2011 concerning the Respondent’s annual insurance offerings
to employees. He testified that in 2011, D. Bachman said he would be back to hold small group
meetings with employees sometime later in the year late November or early December.25 Sindt
credibly testified he was not aware of any other meetings that D. Bachman held at the plant.
Sindt did not recall D. Bachman attending the meeting where the CSX work was discussed.
Sindt testified the only three meetings he recalls D. Bachman attending were the two for
insurance and the one for small groups. Similarly, Douglas testified he had never previously
attended a meeting with small groups of employees conducted by D. Bachman. Like Sindt,
Douglas testified the only other meetings D. Bachman held in the past were two plant wide
annual insurance meetings.
While D. Bachman testified he conducted the small group meetings with employees on
October 19, he admitted he was aware the Union conducted a distribution at the facility at the
time he held these meetings. I have credited the testimony of Sindt and Douglas as to how they
were informed of these meetings, which was confirmed by D. Bachman. Moreover, I find it was
reasonable for the employees to assume the meetings were mandatory since there was a
posted schedule listing every employee's name and time of attendance, and the employees
were not told the meetings were not mandatory. I find, as admitted by D. Bachman, that
Respondent was aware of a union campaign at the time he conducted these meetings, and that
the credited testimony of Sindt and Douglas, with Sindt in particular establishes that D.
Bachman solicited grievances during the meetings, including telling Sindt his suggestion of a
bonus program sounded like a good idea. Moreover, D. Bachman gave out his personal cell
number to employees for the first time asking them to get in touch with him if they had a
problem indicating that his solicitation of employee complaints was on going. Since D.
Bachman admitted he was aware of the union distribution at the plant gate at the time he
conducted these meetings, I do not find the date of the meetings is critical to the establishment
of a violation. However, I find Sindt’s recollection to be the best among all the witnesses, and
based on that have credited him that D. Bachman’s group meetings with all the employees took
place sometime between Thanksgiving and early December. I do not find that Respondent has
established the D. Bachman has conducted such meetings in the past with groups of employees
where he solicited grievances and provided his personal number. In this regard, I found D.
Bachman’s testimony concerning prior meetings, their purpose, and who attended to be hazy at
best. Rather, I have credited the testimony of Sindt and Douglas, which was supported in part
by Benboe, that D. Bachman theretofore only regularly conducted annual insurance meetings
with all of Respondent’s staff at Respondent and that the purpose of those meetings was not to
solicit grievances but to inform Respondent’s staff of their annual options under Respondent’s
insurance plans. Accordingly, I find that D. Bachman violated Section 8(a)(1) of the Act by
around December 2011, holding small group meetings with employees wherein he solicited
complaints and grievances, and implied promises of increased benefits and improved terms and
conditions of employment as alleged in paragraph 5(d) of the complaint.

25 Along these lines, Sindt gave an affidavit on February 29, 2012, which reads, "Back in
October or November of 2011, D. Bachman came to a morning meeting and said he would be
meeting with a bunch of guys. That the groups would be 10 to 15 guys, there would be several
meetings." The affidavit continues, "The meetings actually took place in December. It was
mandatory for everyone to go to these meetings."
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3. The handbook requirement that employees seek management
approval before they solicit or distribute literature
Respondent’s employee handbook, which was revised on October 1, 2011, contains the
following solicitation and distribution policy:
Solicitation for any cause during working time and in working areas is not permitted.
You are not permitted to distribute non-company literature in work areas at any time
during working time. Working time is defined as the time assigned for the performance
of your job and does not apply to break periods and meal times. Employees are not
permitted to sell chances, merchandise or otherwise solicit or distribute literature without
management approval.
The complaint as amended at the hearing alleges the last sentence of the above policy to be
violative of Section 8(a)(1) of the Act. Counsel for the Acting General Counsel contends the last
sentence of the rule is unlawful on its face because while the preceding sentences of the rule
are limited to what can be done during working time, the last sentence of the rule has no such
limitation. It is argued that the last sentence of the rule is likely to have a chilling effect on
employees Section 7 rights during non-working time.
In Guardsmark, LLC v. NLRB, 475 F.3d 369, 374-376 (D.C. Cir. 2007), the court
considered whether the respondent employer’s mere maintenance of three work rules violated
Section 8(a)(1). The court enforced the Board’s finding that two of the three rules violated the
Act, and reversed the Board by finding the third rule was also unlawfully maintained. In doing
so, the court set forth the following principles:
To determine whether a work rule violates NLRA section 8(a)(1), the Board considers
“ ‘whether the rule[ ] would reasonably tend to chill employees in the exercise’ of their
statutory rights.” Adtranz ABB Daimler-Benz Transp. v. NLRB, 253 F.3d 19, 25
(D.C.Cir.2001) (quoting Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998)). In making
this assessment, the Board engages in a two-step inquiry described in Martin Luther
Memorial Home, 343 N.L.R.B. No. 75, at 1-2 (May 19, 2004). First, the Board examines
whether the rule “explicitly restricts” section 7 activity, id. at 1; if it does, the rule violates
the Act, id. But if nothing in the rule explicitly restricts section 7 activity, then the Board
moves to the inquiry's second step, under which the rule violates the Act if it satisfies any
one of the following three conditions: “(1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at
2. In the first step-which looks to see whether the rule explicitly restricts section 7
activity-as well as in the first of the second step's three alternative conditions-which looks
to see whether employees would reasonably construe the rule to restrict section 7
activity-the Board focuses on the text of the challenged rule. See id. at *2-3. Thus, “mere
maintenance” of a rule likely to chill section 7 activity, whether explicitly or through
reasonable interpretation, can amount to an unfair labor practice “even absent evidence
of enforcement.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998), enforced mem.,
No. 98-1625, 1999 WL 1215578, at 1 (D.C. Cir. 1999); see also Cmty. Hosps. of Cent.
Cal. v. NLRB, 335 F.3d 1079, 1088 (D.C. Cir. 2003) (citing the Board's “mere
maintenance” rule).
* * *
Chain-of-Command Rule
While on duty you must follow the chain of command and report only to your
immediate supervisor. If you are not satisfied with your supervisor's response, you may
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request a meeting with your supervisor and his or her supervisor. If you become
dissatisfied with any other aspect of your employment, you may write the Manager in
Charge or any member of management. Written complaints will be acknowledged by
letter. All complaints will receive prompt attention. Do not register complaints with any
representative of the client.
Guardsmark, 344 N.L.R.B. No. 97, at *1, 2005 WL 1378568 (emphasis added). The
Board found that the rule's last sentence “explicitly trenches upon the right of employees
under Section 7 to enlist the support**366 *375 of an employer's clients or customers
regarding complaints about terms and conditions of employment.” Id. at *2. See also
Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 343 (D.C.Cir.2003) (noting that
employees' statutorily protected rights to solicitation extend to solicitation of
nonemployees). The Board rejected Guardsmark's contention that the last sentence is
limited by the “[w]hile on duty” phrase appearing in the rule's first sentence, explaining
that even though the phrase “arguably limits [the rule]'s prohibition on lodging complaints
with employees outside the chain of command to working time only[,] .... its prohibition
on discussing terms of employment with customers is not similarly time-limited. It is
absolute ....” Guardsmark, 344 N.L.R.B. No. 97 at *2.
Guardsmark argues that instead of reading the rule as a whole, as Martin Luther
requires, 343 N.L.R.B. No. 75, at *1 (holding that the Board “must refrain from reading
particular phrases in isolation ...”), the Board “treated the phrase ‘while on duty’ in
complete isolation from the phrases that immediately followed it in the same paragraph.”
Guardsmark's Opening Br. 9-10. In our view, however, the rule's structure supports the
Board's reading. Following the first sentence, which tells employees: “While on duty you
must follow the chain of command and report only to your immediate supervisor,” the
next four sentences describe the chain of command, and the last sentence flatly tells
employees: “Do not register complaints with any representative of the client.” Given the
change in focus from supervisors to clients, the number of intervening sentences, and
the last sentence's direct command forbidding complaints to clients, the Board
reasonably read “while on duty” to apply exclusively to the prohibition against discussing
complaints with non-supervisory employees and interpreted the ban on client
communications to be a separate non-time-limited instruction. Because “[e]mployees
have a statutorily protected right to solicit sympathy, if not support, from the general
public ... [and] customers” regarding their terms and conditions of employment, see
Stanford Hosp., 325 F.3d at 343 (quoting NCR Corp., 313 N.L.R.B. 574, 576 (1993)), the
Board's conclusion that the chain-of-command rule explicitly prohibits section 7 activity is
“reasonably defensible,” Adtranz, 253 F.3d at 25. Cf. Cent. Hardware Co. v. NLRB, 407
U.S. 539, 542-43, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972) (“Early in the history of the ...
Act the Board recognized the importance of freedom of communication to the free
exercise of organization rights.”).
The court in Guardsmark went on to state since the Board concluded that the rule in question
explicitly restricts Section 7 activity, the Board had no obligation to consider whether
Guardsmark actually enforced the rule against such activity. The court distinguished its findings
in Adtranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d 19 (D.C.Cir.2001), stating that
in “Adtranz, which involved a rule expressly prohibiting “soliciting and distribution without
authorization,” 253 F.3d at 28, although we did consider the challenged rule's context, including
the absence of enforcement, the rule's legitimate business purpose, and the lack of anti-union
animus, we did so only after first concluding that the rule, which applied only to conduct during
working time, did not prohibit section 7 activity. Id. at 28-29
The Board has held that rules requiring employees to check with an employer to secure
permission before they engage in protected Section 7 activities are unlawful. See TeleTech
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Holdings, Inc., 333 NLRB 402, 403 (2001); Brunswick Corp., 282 NLRB 794, 795 (1987); and
Kinder-Care Learning Centers, 299 NLRB 1171, 1171-1172 (1990). When a rule is
presumptively unlawful, the employer has the burden to show that it communicated or applied
the rule in a way that conveyed a clear intent to permit the protected conduct the rule
proscribes. See, Ichikoh Mfg. Co., 312 NLRB 1022 (1993), enfd. 41 F.3d 1507 (6th Cir. 1994);
Pontiac Osteopathic Hospital, 284 NLRB 442, 465 (1987); and J.C. Penny, 266 NLRB 1223,
1224-1225 (1983). In this regard, where there are ambiguities in employee work rules
promulgated by an employer, the ambiguity must be resolved against the promulgator of the
rule rather than the employees, who are required to obey it. Norris/O'Bannon, 307 NLRB 1236,
1245 (1992).
I find the last sentence of the current rule reading that “Employees are not permitted to
sell chances, merchandise or otherwise solicit or distribute literature without management
approval” constitutes an unlawful solicitation and distribution rule because it requires
management approval for engaging in protected conduct, which includes solicitation and
distribution during non work time and in work areas. As the court found pertaining to the “Chain
of Command” rule in Guardsmark, LLC, I find that the last sentence of the rule in the present
case is not connected to, saved by, or defined by the prior pronouncements of the rule which
specifically relate to solicitations and distributions during working time and in working areas. In
fact, those portions of the rule explicitly prohibit all such solicitations during working time, which
the company is permitted to do. Since all such solicitations are prohibited, the import of the last
sentence, which I have found to be unlawfully maintained is that any other solicitations during
non working time, and/or distributions in non work areas require company approval. This
Respondent cannot do. Accordingly, the maintenance of the last sentence of Respondent’s
solicitation and distribution rule is violative of Section 8(a)(1) of the Act. To the extent
Respondent may claim this allegation is time-barred, unlawful work rules which may be
longstanding which are maintained within the statutory limitations period established in Section
10(b) of the Act constitute continuing violations of the Act. See, Turtle Bay Resorts, 353 NLRB
1242, 1272 (2009); Pipe Corporation, 347 NLRB 836, 846 fn. 10 (2006); Alamo Cement Co.,
277 NLRB 1031, 1037 (1985); and Lafayette Park Hotel, 326 NLRB 824, 825 (1998) where the
Board held the maintenance of an unlawful rule is violative of the Act.
I find the solicitation/distribution rule here to be distinguishable from the rule the court
found to be lawfully maintained in Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253
F.3d 19, 23 (D.C. Cir. 2001). The rule in Adtranz entitled “Solicitation and/or Distribution”
provided that:
The unauthorized sale of tickets, solicitation of contributions, or distribution of handbills
can disrupt work. Therefore, such activities are not permitted on Company premises
during working time except for specific Company-sponsored solicitations or distributions.
Unauthorized activities include, but are not limited to, distribution of any literature or any
material in work areas and solicitation in either work or non-work areas where either the
employee soliciting or the employee being solicited is scheduled to be working. All
solicitation requests must be approved in advance by Human Resources.
The Court stated the above rule only applied to conduct during working time and in the work
place. In fact, the rule Adtranz allowed for certain company sponsored solicitations or
distributions during work time. So, the subsequent sentence that all solicitation requests must
be approved in advance by Human Resources could be read to relate to the aforementioned
working time solicitations and distributions. However, the rule in the instant case prohibited all
working time distributions and solicitations except for company literature, so the additional
sentence requiring management approval for solicitations and distributions was superfluous and
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could only be read by a reasonable employee to refer to all solicitations including those during
breaks, lunch periods, and before and after work. For the reasons set forth above, I find the
sentence listed in Respondent’s rule is unlawfully maintained. I also note I have found other
Section 8(a)(1) and 8(a)(1) and (3) violations in this case showing Respondent has a
documented history of animus towards union activity, which as the court noted should be
considered in placing the published rule in context as considered by a reasonable employee.26
D. The January 2, 2012, discharges of Douglas and Sindt
1. Douglas
Douglas began working for Respondent on April 5, 2010 and he was terminated on
January 2, 2012. Douglas's job title was fabricator. Douglas worked in the main shop
performing upgrades, structural, and cosmetic repairs to locomotives.27 Douglas testified he
averaged 50 hours a week at work. Douglas attended meetings every morning before the start
of his shift in the cafeteria which was also the break room. Douglas testified the meetings were
mandatory because the employees receive attendance points if they were late. He testified all
employees from the shop attended. Douglas testified meetings were usually conducted by
supervisors Dave Crall or Benboe. Douglas testified that when he first started working at
Respondent Shawn Shaffer was his supervisor, and at the time of his termination Benboe was
his supervisor. Douglas testified the only other person to supervise him was on occasion Jim
Cronin when Douglas was working in the rust unit. Douglas testified that Benboe supervised
him from August 2010 until his termination, except when Douglas was working on the rust unit,
which was 5 to 10% of Douglas’ time.
On August 5, 2010, Douglas signed for and received a written copy of Respondent's
blue flag policy, which required employees to place their blue flag on any unit or structure on
which they were working and to remove the flag when they finished their work. Douglas
received a written verbal warning dated August 26, 2010, for a violation of the blue flag policy.
Douglas testified in August or September 2010 Benboe told Douglas that Bachman had placed
Douglas on probation because he was taking too long on a snowplow project. Douglas testified
when Benboe informed Douglas of his probationary status, Benboe asked Douglas if he wanted
to meet with Bachman, and the three met in the conference room. Douglas testified the
snowplow was the first snowplow Respondent had worked on. He testified he had to take the
front-end off and no one knew how to do it. He testified he spent about a week and a half trying
to take it off which was the issue leading to his probationary status. Douglas asked Bachman
how they could state he was taking too long when no one had previously done the work, and
they did not have the prints for the machine. Douglas testified neither Benboe nor Bachman
told him how long his 2010 probation would last.

26 Since I have found the mere maintenance of the rule to be violative of the Act, I reject
Respondent's arguments that they were some how prejudiced by my granting at the outset of
the trial the Acting General Counsel's motion to amend the complaint to allege the rule as
unlawful. Similarly, Gooch Packing, Inc., 187 NLRB 351 (1970), cited by Respondent does not
require a different result as the rule there required company approval of solicitation during
working time. Here the rule in question was not limited to working time solicitations and
distributions but required all solicitations and distributions to be approved by management.
27 Douglas testified Respondent has three buildings in Albia including: the shop, which
houses the main shop and the offices; the second building contains the blast booth and paint
booth; and the third building is the warehouse/maintenance shop.
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Douglas received an evaluation for the period of April 5 to December 9, 2010. The
evaluation was not signed by Douglas or the reviewer. The evaluation contains a performance
graph with ratings of 1 to 5, with 5 being unacceptable and 1 being outstanding. There were 26
items on the grid. Douglas received 1 mark for exceeding expectations; 14 for satisfactory, and
11 for below expectations. Douglas received a raise from $15 to $15.50 an hour at the time of
the evaluation. The evaluation contained handwritten notations under weaknesses showing
Douglas received a notice for job performance with a 30 day review and he had four attendance
points. It stated he needed to stay on task, needed to work on his fabrication skills, and he
needed to become a certified welder. The evaluation stated Respondent needed to see further
improvement in quantity and quality. Douglas testified he was not offered a chance to see the
review. Douglas testified Dave Crall gave him the review.28 Douglas testified that, during the
review, Crall mentioned that Douglas's attendance was where it should be, that Douglas was
not there very long, and Crall did not expect him to have a high level of knowledge of the shop
at the time. Crall told Douglas that he had a good safety record. Douglas did not know what
ratings Crall gave him. Douglas knew Crall gave Douglas a $.50 an hour raise.
Douglas next received a review covering the period of December 1, 2010 to June 1,
2011, which Douglas signed for on August 24. Douglas testified he was never shown a copy of
the evaluation. He testified Benboe went over the review with him. On the review, Douglas
received 3 marks for below satisfactory, 22 marks for satisfactory, and 4 marks for between
satisfactory and below satisfactory. Written remarks on page one of the evaluation showed
Douglas had 8 attendance points. Under summary of weaknesses the following were listed on
page one: attendance, attitude, needs to become certified in welding processes, has become
certified since evaluation was written. The second page of the evaluation includes statements
that Douglas needs to work on communication with supervisor and to stay at assigned job. It
states under goals or improvement programs: attendance issue; need to work on attitude and
the way he interacts with supervisors. It states in Section E of the evaluation "probation for
above." Douglas testified he did see the second page of the evaluation. While it is reflected in
the evaluation that Douglas was on probation in the section right above Douglas' signature,
Douglas testified he did not pay any attention to it and he could not say if it was there or not at
the time he signed for the evaluation. Douglas testified he was not told he was on probation
during the review. He then testified that he did not recall whether he was told he was on
probation. Douglas testified that, during the evaluation meeting, Benboe mentioned to Douglas
that he needs to improve his attitude and communication with his supervisor and he needed to
stay at his assigned job. Douglas testified he argued the point with Benboe. Douglas testified
Benboe did not say anything about an attendance issue. Douglas testified he signed the
document without bothering to look at it because he was frustrated with what Benboe was telling
him as Benboe was telling him things that Douglas did not agree with. Douglas testified he
became certified as a welder at the end of June 2011. Douglas testified that during the
evaluation meeting when Benboe mentioned he needed to become certified Douglas told him
that he had and Benboe penciled it in. Douglas was issued a three day suspension on July 22,
2011, for a second violation of Respondent's blue flag policy. Douglas testified he received a $1
an hour raise after he became a certified welder several months after the fact.
Douglas testified that between the August 24 meeting and his January 2, 2012
termination, Benboe mentioned "attaboys" to Douglas concerning his work performance and
had come up to Douglas telling him good job on projects that Douglas had completed. Douglas
testified that Benboe had praised his performance on more than one occasion in November or

28 Douglas testified that Crall has never supervised Douglas.
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December 2011. Douglas testified on one occasion in front of all the shop employees at the
morning meeting, Benboe commended Douglas for a job well done on some doors on a snow
blower. Benboe said Douglas had done a really good job and saved Respondent money.
Douglas testified Benboe also indicated he informed Bachman that Douglas had done a good
job and saved Respondent money because they thought the job was going to have to be
outsourced or reordered from the company they were doing the work for. Douglas testified
Benboe did not usually praise employees during morning safety meetings. Sindt confirmed that,
during the morning staff meetings around a week before the Christmas shutdown, Benboe
complimented Douglas' work in front of all the employees for a job Douglas had done on an
entryway door to a cab. Sindt testified Benboe said Douglas did an excellent job and he
probably saved around $1000 to $2000 in replacing the door and the door sash. Sindt testified
he only heard Benboe complement an employee for their work one time at these meetings and
that was Douglas.
Douglas testified he was terminated by Benboe on January 2, 2012, the day the
employees returned to work following the holiday shutdown. Douglas testified he was working
on a high voltage cabinet, a project he had started working on prior to the Christmas shutdown.
Douglas was welding when Benboe came up to Douglas with an envelope and told Douglas to
put his tools down. Douglas followed Benboe to the break room. He testified no one was there
when they first walked in but Cronin later joined them. Douglas testified when they entered the
break room, Benboe handed Douglas a piece of paper. Douglas read the paper which he
testified stated Douglas was being terminated for lack of performance. Douglas testified that
Cronin was not in the room at the time. Douglas testified he looked at Benboe and said, "Are
you fucking kidding me?" Benboe responded, "No, I'm not." Douglas testified he stated if this is
the case, "What about the attaboys” and "the job well dones that I had in the past?" Benboe
said in response that was not always the case. Douglas testified Benboe gave no further
explanation as to why Douglas was terminated. Douglas testified he asked Benboe why, and
Douglas even asked Benboe for an example. In this regard, he testified he asked Benboe
"What are you talking about?" Douglas testified Benboe did not say anything in response.
Douglas testified Benboe just shut down the conversation and did not want to say anything
further. Douglas' January 2, 2012 termination letter read, "This letter is to inform you that your
employment at RELCO Locomotives, Inc. has ended today January 2, 2012, due to poor job
performance. The required improvements on your last employee performance review have not
been met." Douglas testified that Benboe did not mention Douglas' blue flag violations during
Douglas' January 2 termination meeting. Douglas testified that during the meeting Benboe did
not get into the specifics of Douglas' performance problems, but Benboe did state that Douglas'
issues were not an everyday thing.
2. Sindt
Sindt's employment dates at Respondent were April 5, 2010 to January 2, 2012. Sindt
was hired as a general laborer. However, Sindt was promoted to the position of mechanic at
Respondent around June 2010, at which time he received a $4 an hour raise in lieu of his
accepting a job offer from a former employer. As a mechanic, he worked in the truck shop
tearing down trucks, de-trucking locomotives, and on the general rebuild of the trucks. Sindt
testified Benboe was his supervisor at the time of his termination. When Sindt was first hired
Jeff Dalman was his supervisor. Sindt testified he was also supervised by Shipp and Cronin.
Sindt worked under Cronin for about a week or two when Sindt worked on hinges on the battery
box in the fabrication department. This took place around August or September 2011. Sindt
thought Shipp supervised him around July to August 2011. Sindt was also supervised by Ryan
Bjornson around December 2011 when Sindt worked on bi-level trucks. Sindt testified Bjornson
supervised him for about 2 to 3 weeks.
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Sindt testified, performing as a mechanic, he worked on around 10 bi-level trucks during
his employment. Sindt learned about bi-level trucks from a schematic given to him by Dalman
when the first contract came for bi-level trucks at the facility. The bi-level truck project was
called the DART project. Sindt testified Respondent had two different contracts for bi-level
trucks and he worked on them in the fall of 2010, the beginning of 2011 and in December 2011.
He testified he considered the bi-level truck work he performed to be mechanical rather than
fabrication. Sindt testified that there were no other people working on the last set of bi-level
trucks. He testified that most of the work done on the DART bi-level trucks was either by Sindt
or an assistant he trained late in the process. Sindt testified that in addition to the work on the
trucks in the last part of his employment he performed work that Benboe assigned to him. Sindt
testified that Benboe did not comment about Sindt's performance either positively or negatively.
Benboe never said he had a problem with Sindt's work.
Sindt testified that he also performed work in the fabrication department at Respondent
in that in the summer of 2011 they were cross training everyone. Sindt testified he received
very little cross training in fabrication and he only performed a little bit of fabrication work as
there were a couple of small fabrication jobs he worked on. Sindt replaced some hinges on one
unit, and he rebuilt a battery box on that unit. Sindt testified in the latter part of 2011 his work
area was all over the shop. Sindt testified as a mechanic he did not require a welding
certification. He testified he did very little welding as a mechanic but did do some on occasion.
Sindt testified no member of management told him he needed to obtain a welding certification
by a certain date or there would be consequences. Sindt testified he has cleaned the shop
quite a bit, and he cleaned during the time period of October 2011 and January 2, 2012 about
40% to 50% of his time. Sindt testified Benboe gave him the assignment to clean. Sindt
testified Dalman asked Sindt why he was cleaning and Sindt said it was his assignment.
Dalman told Sindt if Benboe was not going to utilize Sindt to potential Dalman was going to try
and get Sindt back into the truck shop. Sindt said that would be fine.
Sindt testified that structural welding is like the frame of the truck and has to be rigid,
versus a door hinge on the car body. Sindt testified structural welding requires a welding
certificate. He did not do structural welding. Sindt was aware Respondent wanted him to obtain
his welding certificate. Sindt testified that as far as he was aware they wanted everyone to be
certified to do any welding there. Without the welding certificate there was some work he could
not be assigned to do. He testified welding is an important part of a fabricator's job. However
welding is not the only thing a fabricator does. They build things without welding and tear things
down. He testified tear down can be performed by a fabricator or a mechanic. He testified
there was also some work in the truck shop as a mechanic he could not do because he did not
have his welding certificate.
Sindt testified he tried to get his welding certificate a couple of times. Sindt testified the
welding certification test involves a two-part test. He testified he passed vertical welding visual
test in July 2011 but did not pass over head welding which he took twice and failed both visuals
for Benboe, who administers the test. Sindt testified he took the test for overhead welding in
August and September of 2011 but failed each.29 Sindt testified the second time he failed the

29 Sindt stated in his February 29, 2012 affidavit that in early 2011, while working as a
mechanic, Dalman and Bachman asked him if he could become certified as a welder. Sindt
testified in his affidavit he passed the visual vertical welding test in May or June, and he took the
overhead test twice once in July and once in August. It is stated in the affidavit that the second
time Sindt failed Benboe said he only allows three tests a year and Sindt stated he would take
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overhead test Benboe was upset. Sindt testified he had planned to take the overhead portion of
the test again after the first of the year in 2012. Sindt testified that around a couple of weeks
before the Christmas shutdown he told Benboe he would like to take the overhead test after the
first of the year. He testified Benboe said that would be fine.
Sindt's initial evaluation at Respondent covered the period of June 7, 2010 to November
10, 2010. The evaluation does not contain Sindt's signature. Sindt testified he never saw the
written evaluation but he met with Dalman for the review. The evaluation contains handwritten
notations under strengths "welding really needs to be tested very good welds" and "do whatever
it takes." Under weaknesses it states "need to learn more also he needs to clean up area after
working." In the summary section its states in handwritten notes, "hard work very good welder,
good at trucks, need to work fast, need to clean up area." Sindt testified he was told he needed
to get his welding tested and he needed to learn more. He testified he was told he needed to
clean up his area after working. There is a handwritten notation on the evaluation that Sindt
was given a $.75 an hour raise on December 21, 2010. On the evaluation grid, Sindt was given
1 outstanding for attendance; 3 exceeds expectations; 17 satisfactory; and 5 below
expectations.
Sindt received an evaluation covering the period of December 1, 2010 to June 1, 2011,
which Sindt signed for on September 15, 2011. Sindt testified he received and reviewed both
pages of the evaluation at the time of his review. Sindt met with Shipp and another person who
attended as a witness for Respondent. Sindt testified at the time his job was a fabricator which
involves welding. He testified he was told he needed to become certified as a welder in order to
do his job as a fabricator. Sindt testified he never did become certified as a welder. He testified
he was never made aware of the time period where he had to become certified. The evaluation
under strengths contains the handwritten remark "willingness to accept direction" and under
weakness it lists "drive and initiative is lacking." The evaluation contains other hand written
remarks such as "has learned and worked in general locomotive areas." It states, "Jerry needs
to become more proactive and have greater initiative." The evaluation states Sindt needs to
become certified as a welder, needs to cross train as a fabricator. It states Sindt has started
cross training as a fabricator since July. Concerning the evaluation grid marks, Sindt received 6
below expectations; 22 satisfactory; and 2 exceeds expectations.
Sindt testified he visited Bachman after Sindt's midyear review in September 2011.
Sindt told Bachman that Sindt liked doing mechanical work, but that he did not like working for
Benboe. Sindt also told Bachman that he did not want to do fabrication work that he preferred
turning a wrench as a mechanic. Sindt testified Bachman told Sindt he needed to do fabrication
work and it was possible Bachman stated Respondent had more fabrication work than
mechanical. Sindt testified he did not have another conversation with Bachman in his office in
December 2011. Sindt testified that during his final few months at Respondent he was primarily
working under Benboe.
Sindt testified Respondent's has an annual plant shut down during Christmas week and
Respondent reopened on January 2, 2012 following its 2011 shut down. Sindt testified he went
to work on January 2, 2012 and reported at 6 a.m. and was scheduled to work until 4:30 p.m.
Sindt testified that around 2:30 p.m., Benboe came up to him with a manila envelope, and they
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the overhead again after the first of the year and Benboe said that would be okay. Sindt
testified at the hearing that he concluded he had taken three tests in 2011 that is one vertical
test and two overheads, and it was his understanding from Benboe's statement Sindt had to
wait until the next year to take the test again.
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walked to the west end of the building. Sindt testified Shipp came walking by and Benboe
asked Shipp to come over. Sindt testified Benboe handed him a sheet and Sindt started to read
it and then said, "You got to be fucking kidding me." Shipp asked Sindt what happened and he
had Shipp read the sheet. Sindt testified Shipp then also said "You got to be fucking kidding
me" to Benboe. Shipp said you are firing the only guy who knows anything about the bi-level
cars. Sindt testified Benboe just shrugged his shoulders and shook his head yes. Benboe
asked Shipp to walk with Sindt to pick up his tools and then Shipp and Sindt proceeded to
Sindt's toolbox. Sindt testified that while they were at the toolbox Shipp was in total shock that
this was going on. Shipp said he did not know what Sindt had done wrong. Shipp said from
what he had seen that Sindt was a really good worker. Sindt cleaned out his toolbox, Shipp took
Respondent's tools, Sindt's Id. badge and left. Sindt testified that the last time he had worked
on bi-level trucks was during two weeks in December. Sindt testified the work he was doing on
the bi-level trucks was complete at the time of his termination. Sindt testified that Benboe did
not verbally inform him the reasons for his termination. Sindt testified the letter stated he was
being terminated due to poor performance. Sindt did not ask for a further explanation. Sindt
testified he never received any written warnings during his time at Respondent.
E. Respondent's witnesses concerning the
termination of Douglas and Sindt
Bachman testified Respondent has a formal evaluation process in which they try to give
each production employee two reviews per year. There is a mid year review and an end of year
review. The reviews include an evaluation form and a meeting with a foreman and the
employee. Bachman testified foremen fill out the evaluation forms, but no particular foremen
fills out the form. He explained the same supervisor does not supervise the same employee
every day. Rather, employees are supervised by a particular foreman based on the project or
work they are assigned. The foreman fills out most of the evaluation form, and Bachman may
insert some comments on the form. Bachman testified he makes the ultimate decision on all
terminations except for terminations for attendance for which there is a point system.
Attendance based terminations are based on the number of days off from work, and the policy it
is not a matter of interpretation. Bachman is informed of an attendance based termination, but
he is not asked to approve it. Points can accrue for various reasons such as calling off from
work or coming in late. If an employee accrues 12 or more points in a calendar year then they
are terminated for attendance. The points drop off from the one year anniversary date from
when they first accrue. Bachman testified when people are terminated whether it is for
attendance or some other reason they are provided with a termination letter. Bachman testified
Sindt and Douglas were the only employees terminated on January 2, 2012.
1. Douglas
Bachman initially testified the decision to terminate Douglas was made in a group and all
the supervisors participated. The meeting took place in December when they were reviewing
evaluations around the last two weeks before the holiday shutdown. Bachman testified Douglas
was terminated for poor performance. Bachman stated in his pre-hearing affidavit dated April 6,
2012, "The reason for Mark Douglas's termination was poor performance. I don't recall specifics
in terms of what the problems were. In general terms it was all performance based." "Douglas
and Sindt do not stay on task, quality was poor, they wandered, they talked to everyone,
attendance was poor, and their attitude was poor."30 Bachman estimated that Douglas had

30 However, Bachman denied at the hearing that both employees had attendance problems
stating in reference to his affidavit, "I'm merging two employees together with a statement that's
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around 10 or 11 attendance points at the time of his termination. Bachman testified at the
hearing that, at the time of their terminations, Douglas and Sindt were not doing a satisfactory
job of meeting deadlines for work assignments. Yet, Bachman testified at the hearing he would
not say Sindt or Douglas overall quality of work was not satisfactory at the time of their
termination.31
Bachman testified Douglas was a fabricator in 2011. Bachman testified Douglas had
basic abilities but was very confrontational and did not take direction well. He had a tendency to
want to do things his own way even though the customer required something different.
Bachman testified Douglas performance was at the bottom of the fabricators who had worked
as long as Douglas had. He testified other than Sindt no one was lower than Douglas.
Bachman testified he had a fairly vocal discussion in the conference room with Douglas when
Douglas was put on probation the first time. Bachman estimated this was in 2010. Benboe
stated to Bachman that Douglas wanted to talk to them. Bachman testified Douglas came up to
the conference room and did not feel he was being fairly treated in the description of the work
he was doing and that his work was fine. Bachman explained the customer wanted something
different than what Douglas wanted to do. Bachman testified Douglas became very vocal and
boisterous and was yelling in the conference room when they had customers there. Benboe
said they could not handle the conversation that way and it ended. Present were Benboe,
Douglas, and Crall, who was no longer with Respondent. Bachman testified he explained to
Douglas he could not pick how we would do a job, it was up to the customer.
Bachman testified in response to a leading question he was aware Douglas was placed
on probation a second time at the midyear review in September 2011. Bachman testified he
thought Douglas was placed on probation because of a performance issue but he would have to
review the particulars. Bachman testified, after looking at Douglas evaluations, that Douglas
was placed on probation for performance issues, including attendance, attitude, interaction with
supervision, and staying on job assignments. Bachman testified he did not he recall the
specifics concerning Douglas. Rather, Bachman was taking a lot of his direction on Douglas
from input from Benboe.
Bachman initially testified he had an opportunity to observe Douglas' performance in the
latter quarter of 2011. Bachman testified after an employee receives a poor review Bachman
spends more time watching the employee to confirm or form his own opinion about the review.
Bachman testified he watched Douglas and agreed with Benboe. However, when asked for
specifics about what he saw, Bachman spoke in generalities. Bachman then testified he
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generalizing both of them put together." Bachman testified that attendance was only a factor in
Douglas’ termination, not Sindt's.
31 Bachman testified that when he decided to terminate Douglas he did not know for sure
how many attendance points Douglas had. He testified it did not make a difference whether it
was 8, 9, 10 or 11 points, as Douglas was very high in the point structure for attendance.
Bachman testified he would consider 10 points to be evidence of poor attendance. Bachman
testified he looked at an attendance chart in Douglas' file at the time he decided to terminate
him, which showed consistent absences. Bachman testified he considers a person with a large
amount of attendance points to be part of what he deems to be poor performance. Bachman
testified most of Respondent's projects have committed delivery dates. Bachman testified if one
of the scheduled employees does not show up for work, Respondent is unable to recover the
calendar day. This causes Respondent to incur overtime which reduces profitability. Bachman
testified performance or competency of an employee is related to a lot of different things. It is
the quality and quantity of the work, reliability, and knowledge.
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watched how Douglas dealt with a supervisor to see if he was confrontational or willing to take
direction; how Douglas was interacting with employees; and if Douglas wanted to help.
Bachman testified he reviewed Douglas attendance file to see if his attendance was as bad as
reported. Bachman testified he basically confirmed what was reported. Bachman recalled a
specific instance where Douglas was confrontational with his supervisor. Bachman testified he
remembered Douglas working on a snowplow and Benboe was giving him direction on what to
do and from a distance Bachman could see Douglas was very disgusted and angry. Bachman
testified this took place in the mid to early part of 2011. Douglas review shows he was put on
probation on June 1, 2011, but Bachman could not recall if the incident with the snow plow was
before or after Douglas was placed on probation. When asked if there was anything he could
say he observed concerning Douglas after June 1, 2011 when Douglas was placed on probation
Bachman testified he needed to take a look at Douglas review for the second half of the year.
Bachman testified, upon looking at the review, that this period of time was basically a
continuation of his inability to work and interact. Bachman testified he did not have any specific
recollection of any observation concerning Douglas other than Bachman's being aware of his
attendance, which Bachman testified got progressively worse. Bachman testified from his
personal observation during the latter half of 2011 he could not say whether Douglas was
performing his work in a timely manner. Bachman could not say what types of work or what
projects Douglas was working on during the last quarter of 2011.
While he had earlier testified the decision to terminate Douglas was made in a group and
that all the supervisors participated, Bachman later testified he made the decision to terminate
Douglas based on reports Bachman received from Benboe; and upon Bachman's review of
Douglas' reviews. Bachman testified it was the review of the file, Douglas' inability to improve,
and what Bachman had received from Benboe that led him to decide to terminate Douglas.
When asked if Benboe made a recommendation to Bachman that Douglas be terminated or if
Bachman reached that conclusion on his own, Bachman testified "I believe with Mr. Douglas I
had made the decision because of his continued inability to improve." Bachman testified that
Benboe gave Bachman the year end review for Douglas and explained it. Bachman pulled up
Douglas' file on how long the probationary period had been going on for and the issues they had
with Douglas. Then Bachman went back to Benboe and explained to him that he did not know if
this was a person that they were going to keep. Bachman testified Benboe agreed Douglas was
not progressing and was progressively getting worse, that they could not rely and him and
Bachman told Benboe that he thought they should terminate him. Bachman testified he did not
recall Benboe said anything vocally to Bachman in support of the decision to terminate Douglas,
but Benboe did not argue against it. Bachman testified he remembered telling all the foremen
that that Sindt and Douglas should be terminated. Bachman testified if they did not agree all the
foremen will say what their feelings are. Bachman then testified, upon being asked by his
Respondent's counsel, that he could not recall whether Benboe made a recommendation to
terminate Douglas.
While Bachman testified Benboe made no affirmative recommendation that Douglas be
terminated, Benboe told a different story. Benboe testified he completes a performance
evaluation form for an employee, and then he gives it to Bachman for review. Benboe testified
in December 2011 he completed performance reviews for Sindt and Douglas, and gave them to
Bachman the first week of December. Benboe testified he made a recommendation at the time
he handed in the evaluations to Bachman that Sindt and Douglas be terminated for poor
performance. He testified that with respect to these two employees he said it was his
recommendation that they were below average performers and Respondent was not getting any
benefit from them being there other than just letting them stay. Benboe testified Bachman did
not say anything other than he wanted to look at their evaluations.
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Benboe testified he filled out most of Sindt and Douglas' last evaluation forms, but
Bachman wrote comments in section E of the evaluation. Benboe testified that unlike the
evaluations he gave to Bachman for other employees, Bachman did not return the evaluations
for Sindt and Douglas to Benboe. Benboe testified about 5 to 7 days after Benboe had handed
Bachman the evaluations, all the other employees evaluations had been returned to Benboe.
Benboe testified he assumed at that time Bachman was going to terminate the two employees.
Benboe testified Bachman did not actually tell him they were going to be terminated until after
they returned from vacation during the Christmas shutdown. However, Benboe also testified,
upon reviewing his pre-hearing affidavit that he had a conversation with Bachman before the
employees were terminated where he asked Bachman why he did not get the evaluations back
and Bachman said the employees were going to be disciplined. He testified Bachman told
Benboe the two employees were going to be allowed to go through the holiday shutdown,
receive their holiday pay, and that Bachman elected to hold off until after they returned from
shutdown after the first of the year. Benboe testified he recommended to Bachman that
Douglas be terminated for poor performance. Benboe testified that part of his decision to make
his recommendation for Douglas' termination was blue flag violations Douglas had in the past.
When asked about any specific instances in the latter part of 2011 that led him to
conclude Douglas should be terminated, Benboe testified there is a document concerning
Douglas attendance and that in December there were three days in a row that he took off.
Douglas records show it was December 6, 7, and 8. Benboe testified Douglas just arbitrarily left
saying he had to go home. Benboe testified employees do not ask his permission and he does
not grant permission to leave. Benboe testified if they want to leave that is up to them. Benboe
testified he was not aware of whether Douglas was on probation at the time he took the early
departures. Benboe testified in response to leading question that he considered Douglas
attendance to be a part of his overall pattern of poor performance.
Benboe’s claim that Douglas was terminated for attendance is belied by content of
Douglas’ termination letter. In this regard, Benboe testified he terminated Sindt for poor
workmanship, and Sindt's termination letter only sites "poor performance" with no mention of
attendance being an issue. Benboe testified he would have given the secretary the reasons for
the termination and they would have typed what he told them to type in the termination letter.
After some waffling and upon reviewing Sindt’s attendance information, Benboe testified
attendance was not an issue as a reason for Sindt’s discharge. Benboe then testified if
someone was being terminated for attendance, Benboe would have directed that to be included
in the termination letter. Yet, Benboe testified that he also gave a secretary the information to
type for Douglas’ termination letter. Douglas' termination letter, like Sindt's, made no mention of
attendance, but listed as the sole cause of termination poor performance.
Benboe testified he met with Douglas and notified him of his termination. He testified
then Supervisor Cronin was present. Benboe testified Douglas said this is a bunch of "fucking
bullshit." Benboe testified Douglas got up and started stomping towards the door of the break
room. Benboe testified he went with Douglas to pick up his tools and check the toolbox to make
sure none of Respondent's inventory was in it. Benboe testified Douglas then left the premises.
Benboe testified he was not aware Cronin had anything to do with the discharge other than
attend the meeting. Benboe testified Cronin did not say anything during the meeting. Benboe
testified Douglas did not say anything else aside from what Benboe previously testified to.
Benboe testified Douglas did not ask for an explanation for the termination. Benboe testified the
letter said performance and Douglas did not ask what it meant by performance. Benboe
testified it was a very short conversation. Considering the demeanor of the witnesses, and the
record as a whole, I have credited Douglas' version of his termination meeting over Benboe's.
Part of Douglas history of his relationship with Benboe was that Douglas would dispute work
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related decisions with Benboe. It would be particularly uncharacteristic as Benboe claimed for
Douglas not to raise questions about his termination. Particularly, since I have found based on
Sindt and Douglas' credited testimony that Benboe had recently complimented Douglas in front
of the whole staff concerning Douglas' performance.
2. Sindt
Benboe testified he was Sindt's supervisor sporadically based on Sindt's assignments.
Benboe thought he supervised Sindt at times in the latter half of 2011, during which time Sindt
was being cross trained as a fabricator. Benboe did not recall the dates of the conversations
but he testified he had conversations with the entire fabrication crew approximately around 3 or
4 weeks before their mid year evaluations which issued in June where he told them as a group
they needed to become certified welders. Benboe testified he said, "any of you guys that are
not certified need to make a concerted effort to do this. Benboe testified that at the time they
were about 35 members of the fabrication crew and about 10 or 12 were not certified welders.
He testified Sindt was there for this discussion.32 Benboe estimated that by the end of the year
2011 only 4 or 5 of the 10 or 12 became certified. He estimated about 8 or 9, including Sindt,
did not become certified welders.
Benboe testified that Sindt tried to pass the welding test twice in the first part of 2011.
Benboe testified he thought Sindt tried to pass the test again in the second half of 2011.
Benboe testified it is a two-part test including a vertical up multiple pass and an overhead
multiple pass. Benboe testified if you pass one half of the test it does not get sent out for
certification. Both halves of the test go out together in that the one that is passed waits for the
other half to be completed. Benboe testified they do the vertical test first and once they have a
visual confirmation that looks like a pass, then they do the overhead test. Benboe testified Sindt
passed a visual on the vertical up test. He did not pass a visual on the overhead. Benboe
testified he thought Sindt only took the overhead once in 2011. Benboe testified he thought
Sindt took the vertical up twice and passed it the second time. Benboe testified passing the
visual test is a prerequisite to send the welds to be testified by an independent facility. Benboe
testified he did not tell Sindt he could not take any more tests in 2011 or that he could take
another test that year. Benboe explained, "I'm not going to stand there and carry these guys
around like little kids." Benboe testified he never had a conversation with Sindt about taking the
welding test in 2012.
Benboe testified he is a level two welding inspector for the American Welding Society.
Benboe can do visual welding inspections at Respondent's facility, and he is the only supervisor
or manager at Respondent who can perform the inspection. When asked if Respondent has
timelines that employees must obtain the welding certifications by, Benboe testified that
timelines would be their evaluations. He testified when they are given their evaluation they are
asked that before their next evaluation that this certification will be completed. However, when
Benboe testified about welding during a prior NLRB proceeding held on August 9 and 10 2011,
he stated that when an employee is hired at Respondent, they are asked to take their welding
test within about 30 days; that if they do not pass they must wait 30 days before they can take
the test a second time; and if they do not pass the second time they must wait 90 days before
passing the test. Benboe admitted during that testimony there were no specific deadlines in
which an employee must pass the test.
Benboe testified that at some point in the latter part of 2011 he came to the decision that

32 However, Sindt's evaluation states he only began cross training in fabrication in July.
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Sindt should be discharged. Benboe testified he could give specific instances but not a specific
date when he made up his mind. Benboe testified when Sindt wanted to be on a job he would
stay there and do the job. However, if it was not what he thought he wanted to do, Benboe
would find him anywhere in the shop at any point in the day. Benboe testified there were times
he would turn around and Sindt would be coming at him from the other end of the shop saying
he had to talk to Benboe. Benboe testified it would be something Benboe thought was
insignificant such as a question about how to tighten a bolt. He testified it was just an excuse
not to be at the jobsite. As to a specific instance, Benboe testified he had Sindt working on a
unit at the west end of track three and Benboe made Sindt aware this had to be done on a
timeline that day. Benboe testified at the end of the day it was not finished. When Benboe
asked Sindt why it was not done he did not know. Benboe testified this was in the last couple of
months of 2011. As to other projects, Benboe testified projects normally go on for multiple days
so it was more difficult to have a timeline for them. Benboe testified this was the only instance
he could recall Sindt did not meet his deadline.
As discussed earlier, Benboe testified when he prepared year-end 2011 evaluations for
Sindt and Douglas he gave them to Bachman. Benboe testified he made a recommendation at
the time he handed in the evaluations to Bachman. He testified he handed in everyone's
evaluation the same time and with respect to these two employees he said it was his
recommendation that they were below average performers and Respondent was not getting any
benefit from them being there other than just letting them stay. Benboe testified Bachman did
not say anything other than he wanted to look at their evaluations. Benboe could not recall
whether he had more than one conversation with Bachman about Sindt's discharge.33 Benboe
testified about 5 to 7 days after Benboe had handed Bachman the evaluations, everyone else's
evaluations except Sindt and Douglas were returned to Benboe. Benboe testified he had a
conversation with Bachman about Douglas and Sindt's evaluations. Benboe testified Bachman
said he was going to hold onto them until after the first of the year after he came back off the
Christmas shutdown. Bachman said he did not want to have any terminations until after then,
that he wanted them to get the holiday pay and he did not want to disrupt their Christmas
holidays. Benboe testified he just said okay. Benboe testified he assumed at that time
Bachman was going to terminate the two employees. Yet, Benboe testified Bachman did not
actually tell him they were going to be terminated them until after they returned from vacation.
Benboe testified he met with Sindt and Shipp when he gave Sindt his termination letter.
Benboe testified that during the meeting Sindt did not say very much and he was very calm
about it. Benboe testified that Sindt did not use profanity during the meeting. Benboe testified
that Shipp did not say anything during the meeting. Benboe testified that Shipp escorted Sindt
off the premises.
Shipp testified he was present for Sindt's termination meeting. Shipp testified he did not
make a recommendation for Sindt's termination, and no one asked his opinion. Shipp testified
he found out Sindt was being terminated on January 2, 2012, when Benboe asked Shipp to be a
witness for the meeting. Benboe said he needed Shipp to be a witness as Sindt was going to
be terminated today. Benboe did not tell Shipp the reason for Sindt's termination. Present at
the meeting were Benboe, Shipp, and Sindt. Shipp at first testified he did not know if Benboe

33 While Benboe testified he recommended to Bachman that Sindt be discharged when he
tendered Sindt's evaluation to Bachman, Benboe wrote in the evaluation, "If Jerry stays in
fabrication, he will need to become certified in welding." Implicit in this statement was Benboe
was not planning on Sindt's termination, and that it was his understanding that Sindt was to be
given another opportunity to pass the welding exam.
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told Sindt the reason for the termination during the meeting stating Shipp stood in the
background and did not hear the whole conversation. When reminded he was asked to attend
as a witness, Shipp then testified he recalled Benboe telling Sindt he was terminated for
performance. However, Shipp testified he was not 100 percent sure. Shipp at first testified he
has trouble hearing. When reminded again that he was asked to attend as a witness, Shipp
then testified he did not have trouble hearing at the meeting, that he heard the conversation, but
he did not recall if Benboe said anything about the reasons why Sindt was terminated. Shipp
testified that Sindt "might've objected a little bit" to his being terminated. He testified "I believe
he said this is fucking bullshit." Shipp testified he thought Benboe told Sindt the termination was
about performance issues. Shipp testified he did not recall if Benboe said anything else.
When Shipp was later called as a witness by Respondent, he testified to a certainty that
during the termination meeting, he heard Sindt state, "are you fucking kidding me?" Shipp
testified he did not recall saying anything when Sindt made that comment. Shipp testified, "I
don't believe I said anything at all." Shipp then clarified stating to a certainty that he did not say
anything. Shipp testified that at no time during the meeting did Shipp say anything like "are you
fucking kidding me?" Shipp denied saying during the meeting that Benboe was terminating one
of the only people that knew anything about bi-level trucks. Shipp testified he did say now he
had to go find someone else to do the bi-level trucks so Shipp was going to have to pull
someone from another job. Shipp testified he recalled telling Sindt that it might work out for the
best for him. Shipp testified Sindt was working under Benboe at the time, but Shipp had
borrowed Sindt for the trucks which is why Shipp had to find a replacement. Shipp testified no
one informed him in advance that Sindt was going to be terminated or asked if it would be a
problem to replace Sindt. Shipp testified beginning the next day he borrowed Jeff Maddy and
Michael May to replace Sindt to finish the trucks.
Shipp later testified he did not know if Benboe was there when he said he was going to
have to find someone to replace Sindt to do the bi-level trucks. Shipp testified Sindt was there
for the remarks. Shipp then testified he did not recall saying anything during the termination
meeting when Benboe was present. Shipp at first testified he thought he made the remark to
Sindt before the termination meeting as Benboe told Shipp before the meeting that he was
going to terminate Sindt. Shipp then testified he told Sindt after the meeting that he was going
to have to get a replacement for Sindt, while Sindt loaded his toolbox. Shipp testified that while
he was escorting Sindt off the premises he said it might have been a blessing if he had a job
somewhere else. Shipp denied telling Sindt he was a good worker. Shipp testified Sindt was
not a bad person but he was not a good worker. Shipp testified Maddy used to work in the truck
shop. Shipp testified that after Sindt was terminated Shipp moved Maddy back to the truck
shop for the bi-level trucks. Shipp testified it was not difficult to replace Sindt on bi-level trucks
because they are some of the easiest trucks to build.
I found that, considering his demeanor, Sindt testified in a credible manner about the
events on his termination day including what transpired at his termination meeting. On the other
hand, Benboe's testimony was undercut by that of Shipp. In this regard, Benboe, contrary to
Sindt, denied that Sindt used profanity in reaction to his being terminated, while Shipp admitted
Sindt did. I do not consider Sindt's remarks were of the nature that Benboe would have
forgotten he made them. Shipp, although requested to serve as a witness by Benboe at the
meeting, at first stated he stood in the background and did not hear the whole conversation. He
then claimed he had trouble hearing, but soon admitted he heard the conversation. I find Shipp
testified in such a manner because he intentionally did not want to accurately report what
transpired at the meeting. Shipp later testified he protested the termination at the meeting
because of the short notice he had in finding a replacement for Sindt, only to then state he
made these remarks only in Sindt's presence prior to the meeting with Benboe not being there.
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When Shipp realized this aspect of his testimony did not ring true, because Sindt had not been
told he had been let go prior to his meeting with Benboe, then Shipp testified he made the
remarks about finding a replacement only to Sindt and it was after the termination meeting. I
found neither explanation by Shipp very convincing, and have concluded that Shipp made the
remarks during the termination meeting, in Benboe's presence, when as Sindt testified Shipp
strenuously objected to the discharge.
Bachman testified it was his decision to terminate Sindt. Yet, in Bachman's affidavit,
dated April 6, 2012, Bachman stated "I don't recall the exact reasons for Jerry Sindt's
termination. I made the final decision to terminate him. I believe the majority of the reasons
was based on his performance over the period of time. I don't recall the specifics of his poor
performance or how many times it happened, without going through documentation." However,
Bachman testified at the hearing he was aware of Sindt's performance in 2010 and 2011 in that
he had an opportunity to personally observe Sindt. He testified Sindt started out pretty well in
an entry level job as a general laborer. Then Sindt moved into basic mechanical work which is
truck rebuild. Bachman testified Sindt liked working on truck assemblies, but Respondent did
not necessarily have truck assemblies to work on. Bachman testified Sindt demonstrated an
ability to weld while performing the truck rebuild work because there is quite a bit of welding
going on truck assemblies.
Bachman testified Respondent ran out of the truck work and placed Sindt into fabrication
where the majority of his work was welding during the spring or summer of 2011. Bachman
testified he was aware Sindt had not received his welding certification because when Sindt was
in the truck rebuild area he could perform basic welding functions, but Respondent always had
to move a certified welder there to do critical welds so they needed two people to do one
person's job. Bachman testified he felt it was a problem that Sindt did not get a welding
certificate because the job he was doing as a truck mechanic and the job he was placed in
fabrication severely limited what Respondent could use him for. Bachman testified that is why it
was discussed with Sindt multiple times about the importance of a welding certification.
Bachman testified Respondent could not have people without their progressing to the
certification level. However, Bachman testified there are employees Respondent retains who do
not have a welding certification, if they show fluent skills in other areas.
Bachman testified in the latter part of 2011 Sindt was assigned in part to do some basic
cleanup work and scraping. Bachman testified Sindt was given these assignments because
they were limited in what they could use him for. Bachman testified that after two years it got to
the point where he became a burden on the company because there were limited areas
Respondent could place him. Bachman testified Sindt put forth no effort to further himself to
where Respondent could place him in other areas.
Bachman testified he talked to Sindt on two different occasions about the need for him to
obtain his welding certification. Bachman testified his first conversation with Sindt was a little bit
after his Sindt's mid year review in 2011 which was August or September. Bachman testified he
believed Benboe stated Sindt wanted to talk to Bachman and Bachman agreed to meet with
him. Bachman testified he stated to Sindt the importance of his obtaining a welding certificate
because that was the type of work Respondent had. Sindt responded he liked doing truck work
better and Bachman explained they did not have truck work to put him in. Bachman told Sindt
he has the ability if he uses it and trains to become certified but if he does not he is severely
limiting his usefulness to the company. Bachman testified Sindt said he did not like doing
welding work, he did not like working with Benboe, and he did not like the work he was doing.
Sindt said he wanted to go back to truck work. Bachman told him the truck work was sporadic,
that they would be able to use him when they could, but the majority of the work load at that
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time was welding and fabrication and that was where they needed him. Bachman testified Sindt
walked away saying he would go through the process again to become certified.
Bachman testified that the next time he had a one-on-one conversation with Sindt it was
the beginning of December and Benboe again said Sindt wanted to talk to Bachman. He
testified Sindt said the same thing that he did not like doing fabrication work. Bachman told
Sindt this was the work that they had, and he could not pick and choose the type of work he
wanted to do, that Sindt needed to become certified and he needed to do it quickly because
they were doing reviews now. Sindt said he would get it done before the end of the year which
was a couple of weeks away. Bachman testified he was not aware of anything that would have
stopped Sindt from taking the test again. Bachman testified he told Sindt they had discussed
this before and there had to be something else bothering Sindt because they were talking about
the same thing again. Sindt said his sister had been sick. Bachman said he understood this
was affecting Sindt's work and it was going to affect both situations if Sindt did not do something
quickly about it. Bachman did not know if he had received Sindt's year-end evaluation at the
time of this conversation. Bachman testified that at the time he met with Sindt in December he
was aware they were getting down to the wire as to whether they could invest in Sindt as an
employee, and there was a high probability that Sindt would not continue employment unless he
got the certification in the remaining couple of weeks of the year. When asked if he told Sindt
this, Bachman testified he did not give employees ultimatums. He testified he strongly
encouraged employees but did not threaten employees with termination if they do not put forth
the effort to do the job. Bachman testified he strongly told Sindt he needed to get the
certification within the remaining weeks of the year. Bachman testified he was never aware of
any union activity by Sindt.
Sindt denied the aforementioned conversation took place with Bachman in December,
and I have credited his denial. First, Benboe did not corroborate Bachman's assertion that he
referred Sindt to talk to Bachman. Second, Benboe never claimed he was told by Bachman that
as of December Sindt had to receive his welding certification by the end of the year. Since
Benboe was the one who administered the test it is likely he would have been consulted or at
least informed by Bachman that there was such a deadline in place for Sindt. Third, it is
extremely unlikely that Sindt would have committed to Bachman that he would have completed
the test before the end of the year since Sindt did not control Benboe's availability for the
administration of the test. Moreover, the test results after Benboe's review had to be sent out
for independent certification, and Sindt could not have known when the certification would have
come back. Fourth, Sindt had already taken separate welding tests with Benboe three times,
two vertical, and one horizontal. Thus, he had made an effort to pass the test. I do not credit
Bachman's claim that at Bachman's suggestion Sindt agreed to take the test within a two week
period but never even consulted Benboe as to the availability of his taking the test during that
time period.
Bachman testified he made the final decision to terminate Sindt's employment. He
testified the termination was recommended to him by Benboe during the end of year reviewing
process. Bachman testified this was during December because their year-end reviews
encompass the 2 to 3 weeks in December that they would be working. Bachman testified he
recalled talking to Benboe about his frustration with Sindt. Benboe said Sindt was giving up not
wanting to weld, constantly complaining about the job he was in and that he wants to get back
to truck rebuild. Bachman testified he thought he discussed with Benboe that when Bachman
was in the shop he observed Sindt was kind of lackadaisical, not staying on task, and wandering
around. Bachman testified that Benboe pretty much agreed and Bachman told him to write up
what he needed to write up in the review and they would review it. Bachman testified he had
the secretaries pull up Sindt's prior reviews to see what they had established and he made his
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decision based off of that. I do not credit Benboe or Bachman's testimony that Benboe
recommended that Sindt be terminated to Bachman. In this regard, in Benboe's final review of
Sindt, he just stated "If Jerry stays in fabrication he will need to become certified in welding."
Implicit in that statement was that Sindt would be given another opportunity to be complete the
welding exam, and that if he failed it would be transferred.
Bachman testified he had another meeting with Benboe after he provided Bachman with
his year end review for Sindt for 2011. Bachman testified it was informal meeting. He testified
he talked to Benboe and the other foreman stating they would be terminating Douglas and Sindt
and Bachman did not want to do it at the end of the year when they gave them their review.
Bachman testified he told the foremen to hold their reviews until the first of the year. Bachman
testified he decided to terminate Sindt because he was unwilling to progress and get a
certification, because of his abilities, and his performance. Bachman testified instances of poor
performance Bachman observed was Sindt's unwillingness, almost to the level of
insubordination to do a particular job, and he had a lackadaisical attitude. Bachman cited
Sindt's constant complaints to the foremen about what job they placed him on. Bachman
testified he witnessed this. Here again, I do not credit Bachman's testimony. Benboe testified
he was not officially informed that Sindt would be terminated until January 2, 2012, when the
employees returned from their Christmas break. Benboe did testify he asked Bachman for the
return of Douglas and Sindt's appraisals prior to the Christmas break, but he was told Bachman
wanted to return them after the break because he did not want to administer discipline prior to
Christmas. Benboe also did not name anyone else as being present for this conversation.
Similarly, contrary to Bachman, Foreman Shipp, who testified he was inconvenienced by Sindt's
termination in that he was given no notice to find a replacement, also testified he was not
notified of Sindt's termination until January 2, when he was called in to be a witness for the
termination meeting.
Bachman testified that in the latter half of 2011 Dalman never expressed a desire to
have Sindt come back to the truck shop or the mechanical area. Bachman testified Dalman was
not involved with any mechanical supervision at the time as he was on another assignment.
Bachman testified he did not think they had any supervisors in the mechanical area or truck
shop at the end of the year. He testified Shipp worked there as a supervisor but they did not
have consistent activity in the truck shop at that time. It was just on a daily basis when they
were building trucks. Bachman testified Shipp was of the same opinion that Bachman was that
Sindt was extremely lacking in his true mechanical abilities which would be consisting of
rebuilding engines and the type of work Sindt was doing was more of an entry-level mechanic.
Bachman testified they did not have a need for an entry-level mechanic so there was no place
for Sindt.
Bachman testified that the bi-level truck rebuild project is an ongoing project that
Respondent has done for a couple of years. Bachman testified he thought Sindt was involved
as one of the people rebuilding truck assemblies, which is a minor portion of the entire job
consisting of about 100 man hours per truck. Bachman testified there was not much truck work
on bi-level cars during the last quarter of 2011. He testified there were only two trucks to build
for a car and once that is completed the work goes to another craft which is usually a skilled
craft. Bachman testified Sindt would not be able to perform the skilled work on the bi-level car.
He testified Sindt could help do trivial tasks. Bachman testified the fact that there was not a lot
of mechanical work on bi-level truck work is part of the reason Sindt was moved to do more
fabrication in the latter part of 2011. Bachman testified they needed fabricators at that time.
Bachman testified Sindt was not a fabricator. He testified he had good welding skills that he
needed to work on and put forth the effort to gain experience. He testified Sindt would be at the
bottom of Respondents welders. Bachman testified the only other person who worked in the
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mechanical and fabrication area who was as limited as Sindt was Douglas. Bachman testified
they were the two most limited employees in those areas and Respondent basically gave up
hope on their willingness or ability to improve.
Bachman testified Respondent had about 20 mechanics at the time of Sindt's
termination, and not all of the mechanics had welding certifications. Bachman testified Sindt
was not a mechanic. Bachman testified the people Respondent uses as fabricators need to
have a welding certification, and anyone being cross trained to be a fabricator must have a
welding certification as part of their process. Bachman testified one of the reasons for Sindt's
termination was he did not have a welding certification. Bachman testified he felt Sindt had a
reasonable time to get certified and Respondent requested it multiple times.
F. Analysis concerning the discharge of Douglas and Sindt
1. Case law pertaining to discriminatory conduct
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee was discharged in violation of
Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence,
that an employee's protected conduct was a motivating factor in the employer's decision. If the
General Counsel is able to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken place even in the absence of
the protected conduct.” Wright Line, supra at 1089. See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). The elements commonly required to support a finding of discriminatory
motivation are union activity, employer knowledge, and employer animus. Farmer Bros. Co.,
303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993).
The law is clear that knowledge of an employee’s union activity may be established by
reasonable inference. Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 983
fn. 36 (2007), enfd. in relevant part 570 F.3d 354 (D.C. Cir. 2009). See also as discussed in
Windsor Convalescent the following: Active Transportation, 296 NLRB 431, 431-432 (1989),
enfd. 924 F.2d 1057 (6th Cir. 1991) (knowledge inferred where, inter alia, three of four
discharged employees engaged in union activities in the presence of employee who was an
informer for the employer); Clark & Wilkins Industries, 290 NLRB 106, 106 (1988), enfd. 887
F.2d 308 (D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990) (imputing supervisor's knowledge to
employer where supervisor observed organizing campaign in small shop). It has also been long
established that circumstantial evidence including the timing of the alleged discriminatory event
and the submission of pretextual reasons in support of it will support a finding of employer
knowledge even in the absence of direct evidence of such. See La Gloria Oil and Gas Co., 337
NLRB 1120, 1123 (2002), affd. 71 Fed. Appx. 441 (5th Cir. 2003); Medtech Security, Inc., 329
NLRB 926, 929-930 (1999) (circumstantial evidence, including timing, general knowledge of
union activity and pretext, supported finding of employer knowledge); Darbar Indian Restaurant,
288 NLRB 545 (1988) (finding of knowledge based on employer's general knowledge of Union
activity, the timing of the discharge, the 8(a)(1) violations found, and pretext given). See also,
West Motor Freight of Pennsylvania, 331 NLRB 831, 836 (2000); North Atlantic Medical
Services, 329 NLRB 85 (1999); Hospital San Pablo, Inc., 327 NLRB 300 (1998), enfd. 207 F.3d
67 (1st Cir. 2000); and Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. mem. 97
F.3d 1448 (4th Cir. 1996). The Board has held that a supervisor's knowledge of union activities
is imputed to an employer absent a credible denial of such knowledge. See, State Plaza, Inc.,
347 NLRB 755, 756-757 (2006); and Dobbs International Services, 335 NLRB 972, 973 (2001).
Along these lines it has been long held as set forth in Shattuck Denn Mining Corp. v. NLRB, 366
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F.2d 466, 470 (9th Cir. 1966), "it is seldom that direct evidence will be available that is not also
self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person accused of unlawful
motive who took the stand and testified to lawful motive could be brought to book."
2. The prima facie case
Douglas and Sindt were each hired on April 5, 2010. The credited testimony reveals that
Sindt learned of the IBEW's organizing campaign at Respondent around January 2011,
whereupon he attended IBEW meetings around once a month up to around July. Sindt started
passing out union authorization cards around April or May 2011. He passed out the cards in the
parking lot and sometimes on the floor at Respondent when they were no supervisors around,
when employees asked Sindt for a card around once or twice a week. Sindt stored the cards in
his lunch bucket which he kept his tool box in the truck shop. Douglas became aware of the
IBEW campaign at Respondent in the spring of 2011. Douglas attended about four or five Local
347 meetings during the campaign starting in the spring of 2011 until his January 2, 2012
termination. Bachman attended a prior unfair labor practice trial on August 9 and 10, 2011,
during which he sat at counsel table for the entire hearing. The August 9, transcript reflects that
an employee testified that he was aware an employee of Respondent contacted the IBEW in
January 2011, and the employee who testified attended IBEW meetings in January and
February 2011.34
IBEW Local 347 Organizer Pfaff became involved in the union campaign at Respondent
on September 1, 2011. Pfaff held organizing meetings with Respondent's employees, including
one on September 26 in Albia at park attended by Pfaff, union official Luck, and about 10 to 15
of Respondent's employees. Douglas attended the September 26 meeting, during which
Douglas raised issues about safety concerns at Respondent, as well as issues about employee
treatment there. During the meeting, Pfaff selected Douglas to become a member of the
Union's voluntary organizing committee. Pfaff and Douglas exchanged phone numbers, and
following the meeting they texted each other and talked on the phone. Following the September
26 meeting, Douglas distributed union authorization cards to employees and returned signed
cards to Pfaff. Douglas passed out cards in the locker room, the cafeteria, the main shop, and
in Respondent's parking lot. Douglas stored the authorization cards in his toolbox, which he
kept along the wall of the shop building or as close to him as possible. Shortly after the
September 26 meeting, Douglas asked Sindt to become involved in the IBEW campaign since
Sindt, due to his job, had access to the paint booth and blast booth at the plant. After this
conversation, Sindt helped Douglas distribute cards, and returned signed cards to Douglas who
gave them to Pfaff. Pfaff was in contact with Douglas weekly or biweekly until Douglas was
terminated on January 2, 2012. Pfaff testified Douglas was the key person on the Union's
organizing committee. Douglas called Pfaff on the day of his discharge stating he could no
longer be on the Union's committee.
Pfaff and then union official Thomas came to Respondent's facility in October during a
shift change at around 4 or 5:00 p.m. and hand billed on the roadside outside Respondent's
gate. They handed out a packet of materials to employees in a blank manila envelope. The
envelope contained three pages of IBEW campaign literature, a blank authorization card, Pfaff's
business card, and a Local 347 sticker. Pfaff testified there was nothing written on the outside
of the envelope. The union officials distributed about 60 envelopes on that date, including six or

34 For reasons previously stated, I do not credit Bachman’s claim that he did not learn of the
IBEW campaign during the August trial.
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seven to Douglas who drove by with about four people in his vehicle. Pfaff and Thomas were
wearing IBEW sweatshirts containing large insignia on the front and back during the distribution.
One of the Union's envelopes was handed to Foreman Shipp as he passed through the gate.
One of the envelopes containing the Union’s distributions found its way to Bachman's desk.35
Douglas credited testimony reveals the day following the Union's hand billing there were
pictures posted at the 8 to 12 computers the employees use to clock in at work. The pictures
contained about three or four lines of writing, including the statement "You can see this is what
your union dues go to." Douglas testified the postings contained a picture of a multimillion dollar
building containing the word IBEW on it. Douglas testified the postings were identical and
remained above the computers for about a week. Sindt confirmed the postings were at the log
in computers the day after or shortly after the union hand billing. Sindt testified credibly testified
one of the postings was also in Respondent’s glass enclosed bulletin board near the entrance to
the locker room. Sindt testified postings were there for around 3 to 4 days. Sindt testified the
posting contained a picture of a fenced building with verbiage along the lines of union dues will
pay for big fancy buildings for their corporate headquarters. I have concluded the postings were
there for a period of 3 to 7 days.36
Sindt credibly testified that around a day or two after the union hand billing, while Sindt
was working, Benboe came up to Sindt and asked him what he thought about the Union. Sindt
replied he had worked at a union and nonunion place and it did not matter to him one way or the
other. Benboe asked Sindt how he felt he was treated at Respondent and Sindt said he felt he
was treated fairly. Sindt testified he responded that way because he felt it could have impacted
his job if he disclosed his pro-IBEW stance. I have found for the reasons stated that Benboe
interrogated Sindt in violation of Section 8(a)(1) of the Act.
Sindt testified there are meetings every morning at Respondent before the start of the
shift in the break room. Sindt testified Bachman will attend these meetings on rare occasions.
Sindt testified that, after the Local 347 hand billing, Benboe made a comment on more than one
occasion at these meetings that unions are not all they are cracked up to be. Sindt testified
that, during the morning meetings after the hand billing, Bachman stated on more than one
occasion that he would rather keep everything in house and that he did not like unions.
Similarly, Douglas testified that during the morning meetings, Benboe said sometimes a union is
good and sometimes they are bad and they just help the lazy people. Douglas testified that,
during the morning meetings, Bachman said in years past, even with the recent recession, that
Respondent never had to lay off anyone, and that if a union was brought in there was no
promise this would not happen. Douglas testified Bachman said if the employees had any
questions to get a hold of him. Douglas testified everybody in the shop who was working that
morning would have attended the meeting, including supervisors. Douglas testified Benboe and
Bachman made their remarks about the Union in separate meetings.37

35 I did not credit Shipp's testimony that he threw the envelope back at the Union officials. I
did not credit Bachman and Shipp's testimony that they did not discuss the hand billing with
other officials of the company. I did not credit Benboe's testimony that he did not become
aware of the hand billing and that he was not aware of the IBEW campaign until he was asked
to give a statement in response to the current unfair labor practice charge.
36 Bachman admitted to seeing the posting, but I do not credit his testimony that there was
only one copy or that he removed it the day he saw it.
37 I have credited Sindt and Douglas' testimony concerning Benboe and Bachman's remarks
over the claims of Benboe and Bachman that they never discussed the Union during the
morning meetings.
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Douglas credibly testified that, between Thanksgiving but before they went on their
Christmas vacation in 2011 which begins on December 23, he was doing a clean up at the end
of the shift. Douglas had union authorization cards sticking out of his back pocket. Benboe
noticed the cards and asked Douglas if he was doing that on company time pointing at Douglas'
back pocket. Douglas replied no. He testified Benboe said, "You better not be." Douglas
testified the union cards were sticking out of his pocket far enough to see the IBEW insignia on
the cards. Douglas did not know the cards were visible until Benboe mentioned it. I have found
that by making these remarks Benboe interrogated Douglas pertaining to his union activity; and
instructed Douglas not to distribute the union cards during company time; and that both actions
were violative of Section 8(a)(1) of the Act.
Sindt credibly testified he attended a small group meeting conducted by D. Bachman in
late November or December 2011. Sindt's testimony revealed D. Bachman set up group
meetings in the cafeteria, also known as the break room with about 8 to 15 employees per
group. Respondent posted notices naming all of its employees for the meetings listing the time
and employee's name for the meeting they were to attend. During the meeting Sindt attended,
D. Bachman wanted to know any ideas to make the plant more efficient and ideas of how they
could improve morale. There were quite a few suggestions from employees as to how this
could be accomplished. Sindt proposed a bonus of a half day’s pay if someone worked 30
days. D. Bachman said he liked the idea. Sindt estimated there were around 10 to 15
suggestions including a bonus program for getting jobs done on time. At the end of the
meeting, someone asked D. Bachman if they had a problem how they could get in touch with
him and he flipped back pages on a poster board where his personal cell phone number was
listed. Sindt thought D. Bachman' e-mail address was also there. Sindt testified D. Bachman
had not given out his cell number or e-mail address in the past.
Similarly, Douglas also attended a meeting conducted by D. Bachman during this time
period for a small group of employees. Douglas learned of the meeting through the posted
schedule described in Sindt’s testimony. At the meeting Douglas attended, D. Bachman asked
the employees if there were any improvements Respondent could make for the employees to
improve production and Respondent's relationship with its clients. Douglas testified that
everyone had something to say. Douglas mentioned the need for better equipment and for
some verification for Benboe’s qualifications to issue welding certifications. Douglas testified
one of the suggestions was better communication between the supervisors and all of
management. Douglas testified D. Bachman wrote his cell phone number on an eraser board
and said this was his personal number if the employees had any questions or concerns feel free
to call. Douglas testified prior to the meeting D. Bachman had never offered Douglas his
personal phone number.
Sindt and Douglas testified the only other meetings they recalled with D. Bachman were
two, one in the fall of 2010 and one in the fall of 2011 concerning the Respondent’s annual
insurance offerings to employees. Neither had previously attended small group meetings
conducted by D. Bachman. Douglas testified aside from the two insurance meetings he was not
aware of any other meetings D. Bachman held with employees. D. Bachman admitted he
conducted the small group meetings with employees at a time he was aware the Union had
conducted a distribution at the facility. For reasons previously stated, I have credited Sindt as to
when D. Bachman's small group meeting occurred, and I have found that by conducting these
meetings and his conduct therein, D. Bachman solicited complaints and grievances, and implied
promises of increased benefits and improved terms and conditions of employment in violation of
Section 8(a)(1) of the Act.
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In sum, I find counsel for the Acting General Counsel has made a strong prima facie
case of a unlawful discharge for Douglas and Sindt. Both Douglas and Sindt were active union
adherents in the IBEW campaign. As IBEW official Pfaff credibly testified, as of September 26,
Douglas was his main employee contact at Respondent's facility. Shortly following the
September 26, Union meeting, Douglas sought and gained Sindt's assistance in the distribution
and collection of union cards, an activity they engaged in and around Respondent's facility. In
October, the Union established a visual presence at Respondent's facility by hand billing at
Respondent's gate where 60 envelopes containing union literature were distributed to
individuals entering and leaving the facility, including Shipp, and one of the packets was placed
on Bachman's desk. I have concluded that all of Respondent's officials quickly became aware
of the IBEW campaign. Between that time, and the time of Sindt and Douglas' January 2, 2012,
discharge, Benboe and Bachman spoke out against the union at staff meetings, anti-union
literature was posted at the employees' check in computers, Respondent solicited grievances,
and Douglas and Sindt were interrogated about their union activities by Benboe, the supervisor
who wrote their last evaluation, and who claims he recommended their termination. Concerning
Douglas, Benboe saw him carrying union authorization cards and therefore there is direct
evidence of knowledge of his union activities. While Sindt denied he was involved with the
Union during Benboe's questioning, Benboe's questioning Sindt reveals Benboe was at least
suspicious of his involvement. Moreover, the two leading union adherents who had worked for
Respondent for close to 2 years were terminated mid-day on the same day, when their being
escorted off the facility in plain view of other employees would clearly send a message not to
engage in the same conduct. The nature of their discharge, along with the other factors I have
enumerated, serves to create an inference that Respondent was aware of their union activities
at the time of their termination. In this regard, the timing of their termination, just 3 months after
the Union established a visual presence at Respondent's facility strongly supports such a
finding. Therefore, the burden shifts to Respondent to establish it would have discharged them
even absent their union activity. However, for the reasons set forth below, I find the reasons
advanced by Respondent for the discharge of Sindt and Douglas to be pretextual.
3. The pretextual nature of the discharges
a. Douglas
Douglas was hired as a fabricator on April 5, 2010. When Douglas first started working
Shaffer was his supervisor, and at the time of his termination Benboe was his supervisor.
Douglas testified Benboe supervised him from August 2010 until his termination except for a
small percentage of his time which Douglas spent working in the rust unit. On August 26, 2010,
Douglas received a written verbal warning for a violation blue flag violation, that is failing to
remove his blue flag from a project after completing his work. In August or September 2010,
Benboe told Douglas that Bachman had placed Douglas on probation because he was taking
too long on a snowplow project. As a result, Douglas met with Benboe and Bachman during
which Douglas explained the reasons why the project was taking so long.
Douglas received an evaluation for the period of April 5 to December 9, 2010. The
evaluation was not signed by Douglas or Crall who reviewed it with Douglas. Douglas received
a raise from $15 to $15.50 an hour at the time of the evaluation. The evaluation contained
handwritten notations under weaknesses showing Douglas received a notice for job
performance with a 30 day review and he had four attendance points. It stated he needed to
stay on task, needed to work on his fabrication skills, and he needed to become a certified
welder. The evaluation stated Respondent needed to see further improvement in quantity and
quality. Douglas was not offered a chance to see the written review, although Crall discussed it
with him. During the review, Crall mentioned that Douglas's attendance was where it should be,
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that Douglas was not there very long, and Crall did not expect him to have a high level of
knowledge of the shop at the time. Crall told Douglas that he had a good safety record.
Douglas next received a review covering the period of December 1, 2010 to June 1,
2011, which Douglas signed for on August 24, 2011. Douglas testified he was never shown a
copy of this evaluation. Written remarks on page one of the evaluation showed Douglas had 8
attendance points. Under summary of weaknesses the following were listed on page one:
attendance, attitude, needs to become certified in welding processes, has become certified
since evaluation was written. The second page of the evaluation includes statements that
Douglas needs to work on communication with supervisor and to stay at assigned job. It states
under goals or improvement programs: attendance issue; need to work on attitude and the way
he interacts with supervisors. It states in Section E of the evaluation "probation for above."
Douglas testified he did see the second page of the evaluation. Douglas testified that he did not
understand that he was on probation at the time of the evaluation. While it is reflected in the
evaluation that Douglas was on probation in the section right above Douglas' signature, Douglas
testified he did not pay any attention to it and he could not say if it was there or not at the time
he signed for the evaluation. Douglas testified he did not recall whether he was told he was on
probation. Douglas testified that, during the evaluation meeting, Benboe mentioned to Douglas
that he needs to improve his communication with his supervisor and he needed to stay at his
assigned job. Douglas testified he argued the point with Benboe. Douglas testified Benboe told
him he needs to work on his attitude and the way he interacts with supervisors. Douglas
testified Benboe did not say anything about an attendance issue. Douglas testified he signed
the document without bothering to look at it because he was frustrated with what Benboe was
telling him. Douglas became certified as a welder at the end of June 2011. Douglas testified
that during the evaluation meeting when Benboe mentioned he needed to become certified,
Douglas told Benboe that he had and Benboe penciled it in. Douglas received a $1 an hour
raise after he became a certified welder several months after the fact. Douglas was issued a
three day suspension on July 22, 2011, for a second violation of Respondent's blue flag policy.
The credited testimony reveals, during the period between the August 24 meeting and
his January 2, 2012 termination, Benboe mentioned "attaboys" to Douglas concerning his work
performance and had come up to him telling him good job on projects that Douglas had
completed. Benboe praised Douglas performance on more than one occasion including in
November or December 2011. Douglas testified, as confirmed by Sindt, that on one occasion in
front of all the shop employees at the morning meeting, Benboe commended Douglas for a job
well done on some doors on a snow blower. Benboe said Douglas had done a really good job
and saved Respondent money. Benboe indicated he informed Bachman that Douglas had done
a good job and saved Respondent money. Sindt testified he only heard Benboe complement an
employee for their work one time at these meetings and that was Douglas in December.
During Douglas' January 2, 2012, termination meeting, Benboe handed Douglas a piece
of paper, which stated Douglas was being terminated for lack of performance. Douglas asked
Benboe "Are you fucking kidding me?" Benboe responded, "No, I'm not." Douglas stated,
"What about the attaboys” and " the job well dones that I had in the past?" Benboe said in
response that was not always the case. Douglas testified Benboe gave no further explanation
as to why Douglas was terminated. Douglas testified he asked Benboe why, and Douglas even
asked Benboe for an example. In this regard, he testified he asked Benboe "What are you
talking about?" Douglas testified Benboe did not say anything in response. Douglas testified
Benboe just shut down the conversation and did not want to say anything further. Douglas'
January 2, 2012 termination letter read, "This letter is to inform you that your employment at
RELCO Locomotives, INC. has ended today January 2, 2012, due to poor job performance.
The required improvements on your last employee performance review have not been met."
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Douglas testified that Benboe did not mention Douglas' blue flag violations during Douglas'
January 2 termination meeting. Douglas testified Benboe not get into the specifics of Douglas'
performance problems, but Benboe did state Douglas' issues were not an everyday thing.
Respondent's defense concerning Douglas was premised on the testimony of Benboe
and Bachman, yet their testimony was marked by inconsistency between witnesses and poor
recall. Benboe like Douglas testified he did not recall Douglas being placed on probation during
the period of his evaluation ending June 1, 2011. The only evidence that he was placed on
probation was Bachman's handwritten note on the evaluation to that effect. Even assuming
Douglas was placed on probation, the credited testimony of Sindt and Douglas reveals that
Douglas had been praised by Benboe on several occasions following that evaluation, including
one announcement to the whole staff during a morning meeting. In addition, between the time
the evaluation was written and then verbally presented to Douglas, he had passed his welding
certification. Bachman and Benboe testified to the importance of a fabricator obtaining their
welding certification, otherwise they could not do certain work. In fact, Benboe admitted that as
of December 2011, 8 to 9 of Respondent's approximately 30 fabricators had not become
certified, despite Benboe's entreaties that they do so. Thus, I do not credit, Bachman's claim
that Douglas was one of Respondent's more limited employees as a fabricator, as the recent
praise he had received prior to his termination, and his obtaining his welding certificate belie that
assertion.
Moreover, while both Bachman and Benboe cited Douglas' attendance as part of the
cause for his discharge, attendance was not mentioned in his termination letter. Yet, it was
Benboe who testified he instructed what was to be placed in both Sindt and Douglas'
termination letters and that if attendance played a role in the discharge it would have been listed
in the letter. Douglas did not meet the 12 point requirement under Respondent's attendance
policy to be automatically terminated for attendance. The failure of Benboe to list attendance in
the termination letter, based on his own standards, supports a conclusion that it was only after
the termination took place that Respondent's officials went back and reviewed records to justify
their actions to prepare for the trial in this case. This conclusion is substantiated by the fact that
Benboe claimed to have recommended Douglas termination to Bachman, but Bachman had no
recollection of him making such a recommendation, and only stated it may have occurred at the
suggestion of Respondent's counsel. I do not credit Benboe's testimony that he recommended
to Bachman that Douglas be terminated. I have concluded that if such a recommendation
occurred, Bachman would have remembered it. I found Bachman's testimony also not worthy of
belief concerning the decision to terminate Douglas. Bachman gave an affidavit in April 2012,
wherein he could not recall the specifics behind Douglas discharge, which had only occurred
three months earlier. At the trial, Bachman also could not cite any specific performance
problems with Douglas after his appraisal ending June 6, 2011, when he was purportedly placed
on probation, although Bachman claimed he personally observed Douglas' work. I find that
after his evaluation ending June 1, 2011, Douglas had been complimented about his work, and
had obtained his welding certificate, a qualification several of the retained fabricators did not
have. I find the given the inconsistent nature of the testimony of Respondent's officials, and
their lack of recall, that the reasons put forth for Douglas discharge were concocted after the
fact and were pretextual. Accordingly, I find that Douglas was discharged for his union activity
in violation of Section 8(a)(1) and (3) of the Act.38

38 I do not place much reliance here on Douglas and Sindt's final evaluations written in
December. The evaluations were never presented to them, and they were composed by the
two officials who I have concluded unlawfully discharged them. Counsel for the Acting General
Counsel introduced evaluations of other employees in an effort to show disparate treatment
Continued
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b. Sindt
Sindt was hired by Respondent as a general laborer on April 5, 2010. Sindt was
promoted to mechanic around June 2010, at which time he received a $4 an hour raise. As a
mechanic, he worked in the truck shop tearing down trucks, de-trucking locomotives, and on the
general rebuild of the trucks. Sindt testified Benboe was his supervisor at the time of his
termination. When Sindt was first hired Dalman was his supervisor. Around August or
September 2011, Sindt worked under Cronin for about a week or two when Sindt did the hinges
in the battery box in the fabrication department. Sindt thought Shipp supervised him around
July to August 2011. Sindt was also supervised by Bjornson around December 2011 when
Sindt worked on bi-level trucks.
Sindt's initial evaluation at Respondent covered the period of June 7, 2010, to November
10, 2010. The evaluation does not contain Sindt's signature. Sindt testified he never saw the
written evaluation but he met with Dalman for the review. The evaluation contains handwritten
notations under strengths "welding really needs to be tested very good welds" and "do whatever
it takes." Under weaknesses it states "need to learn more also he needs to clean up area after
working." In the summary section its states in handwritten notes, "hard work very good welder,
good at trucks, need to work fast, need to clean up area." Sindt testified he was told he needed
to get his welding tested and that he needed to learn more. He testified he was told he needed
to clean up his area after working. There is a handwritten notation on the evaluation that Sindt
was given a $.75 an hour raise on December 21, 2010.
Sindt, performing as a mechanic, worked on around 10 bi-level trucks during his
employment. Sindt learned about bi-level trucks from a schematic given to him by Dalman
when the first contract came for bi-level trucks at Respondent. Sindt's supervisor for the bi-level
trucks called the DART project was Bjornson. Sindt testified Respondent had two different
contracts for bi-level cars and he worked on them in the fall of 2010, the beginning of 2011 and
in December 2011. He considered the bi-level truck work to be mechanical rather than
fabrication. Sindt testified there were no other mechanics working on the last set of bi-level
trucks. He testified that most of the mechanical work done on the DART bi-level trucks was
either by Sindt or an assistant he trained late in the process. Sindt testified that in addition to
the work on the trucks in the last part of his employment he performed work Benboe assigned
him. Sindt credibly testified Benboe never said he had a problem with Sindt's work.
Sindt's credited testimony revealed that, in the summer of 2011, Respondent began
cross training many of its employees, and Sindt began to be cross-trained in fabrication. Sindt,
however, received very little cross training in fabrication, and only worked on a couple of small
fabrication jobs that summer. Sindt testified that as a mechanic he did not require a welding
_________________________
between those employees and Douglas and Sindt. I did not find it necessary to rely on those
evaluations here and note most of the employees were employed for different lengths of time, or
may have had different employment histories making them difficult to compare their status with
that of Sindt and Douglas. However, Bachman admitted one of the referenced employees was
comparable to Sindt and Douglas and only retained because Respondent did not want to incur
worker's compensation related litigation. Since, I have concluded Respondent was aware of
Douglas and Sindt's union adherent status at the time of their termination, with respect to the
retention of this other employee as opposed to them was evidence of disparate treatment as
Respondent was no stranger to litigation involving the termination of union adherents, but
nevertheless had no second thoughts about terminating Douglas and Sindt.
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certification as he only performed occasional welding, and not all welding required a
certification. Sindt was given assignments by Benboe to clean the shop around 40 to 50% of
his time during the time period of October 2011 to January 2, 2012. During this time, Dalman
asked Sindt why he was cleaning and Sindt said it was on his daily sheet. Dalman told Sindt if
Benboe was not going to utilize Sindt to potential Dalman was going to try to get Sindt back into
the truck shop.
Sindt testified Respondent wanted him to obtain his welding certificate which is required
for structural welding. Without the welding certificate there was some work he could not do. He
testified welding is an important part of the fabricator's job. However welding is not the only
thing a fabricator does. They build things without welding and tear things down. Sindt testified
there was some work in the truck shop as a mechanic that he could also not do because he did
not have a welding certificate.
Sindt testified the welding certification involves a two-part test, a vertical test and an
overhead test. He testified he passed vertical welding visual test in July 2011 but did not pass
over head welding which he took twice and failed both visuals for Benboe, who administers the
test. Sindt testified he took the test for overhead welding in August and September of 2011.
Sindt gave earlier dates for these tests in his pre-hearing affidavit stating that he took the
overhead test in June and August. Sindt testified the second time he failed the overhead test
Benboe was upset. Sindt testified he had planned to take the overhead portion of the test again
after the first of the year in 2012. Sindt credibly testified that before the shutdown he told
Benboe he would like to take the overhead test after the first of the year. He testified Benboe
said that would be fine. Sindt estimated that this conversation was a couple of weeks before the
shutdown. Sindt testified in his affidavit he told Benboe he would take the test again after the
first of the year after the second time Sindt failed the overhead test.
Sindt received an evaluation covering the period of December 1, 2010, to June 1, 2011,
which Sindt signed for on September 15, 2011. Sindt testified he received and reviewed both
pages of the evaluation at the time of his review and Shipp gave the review. Sindt testified at
the time his job was a fabricator. He testified he was told he needed to become certified as a
welder in order to do his job as a fabricator. Sindt testified he was never made aware of the
time period where he had to become certified. The evaluation under strengths contains the
handwritten remark "willingness to accept direction" and under weakness it lists "drive and
initiative is lacking." The evaluation contains other hand written remarks such as "has learned
and worked in general locomotive areas." It states, "Jerry needs to become more proactive and
have greater initiative." The evaluation states Sindt needs to become certified as a welder and
he needed to cross train as a fabricator. It states Sindt has started cross training as a fabricator
since July. Sindt visited Bachman after receiving this review. Sindt told Bachman that Sindt
liked doing mechanical work, and that he did not like working for Benboe. Sindt also told
Bachman he did not want to be doing fabrication work as he preferred working as a mechanic.
Sindt testified Bachman told Sindt he needed to do the fabrication work as Respondent had
more fabrication work than mechanical. Sindt credibly testified he did not have another
conversation with Bachman in December 2011.
Sindt's credited testimony reveals that following Respondent's annual Christmas
shutdown, Sindt returned to work on January 2, 2012. At around 2:30 p.m., Benboe instructed
Sindt to follow him, and Benboe asked Shipp to serve as a witness. Benboe then handed Sindt
a sheet which stated he was terminated for poor performance. Upon reading the sheet, Sindt
stated, "You got to be fucking kidding me." Shipp asked Sindt what happened and he had
Shipp read the sheet. Shipp then also said "You got to be fucking kidding me" to Benboe.
Shipp said you are firing the only guy who knows anything about the bi-level cars. Benboe
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shrugged his shoulders and shook his head yes. Benboe asked Shipp to walk with Sindt to pick
up his tools and then Shipp and Sindt proceeded to Sindt's toolbox. While they were at the
toolbox, Shipp said he did not know what Sindt had done wrong. Shipp said from what he had
seen that Sindt was a really good worker. Sindt testified the last time he had worked on bi-level
trucks was during two weeks in December. Sindt testified the work he was doing on the bi-level
trucks was complete at the time of his termination. Sindt never received any written warnings
during his time at Respondent.
I found the testimony of Respondent's witnesses to be contradictory as to the reasons
Sindt was terminated. Benboe testified he thought he supervised Sindt at times in the latter half
of 2011, during which time Sindt was being cross trained as a fabricator. Benboe testified he
never told Sindt individually that he needed to get his welding certificate, rather he had
conversations with the entire fabrication crew about 3 or 4 weeks before their mid year
evaluations which issued in June where he told them as a group they needed to become
certified welders. Benboe testified that at the time they were about 35 members of the
fabrication crew and about 10 or 12 were not certified welders. He testified Sindt was there for
this discussion.39 Benboe estimated that by the end of the year 2011 around 4 or 5 of the 10 or
12 became certified. He estimated about 8 or 9 did not become certified welders. Yet, although
he had just started cross-training in fabrication Sindt was the only one of those 8 or 9 individuals
who was terminated.
Benboe testified that Sindt tried to pass the welding test twice in the first part of 2011.
Benboe testified he thought Sindt tried to pass the test again in the second half of 2011.
Benboe testified he thought Sindt only took the overhead once in 2011. Benboe testified he
thought Sindt took the vertical up twice and passed it the second time. In fact, Sindt credibly
testified he passed the vertical test on his first try, and took the overhead test twice in 2011.
Benboe testified he did not tell Sindt he could not take any more tests in 2011. Benboe testified
he never had a conversation with Sindt about taking the welding test in 2012. However, I have
credited Sindt that he informed Benboe that he would retake the welding test in 2012 and that
Benboe agreed. Moreover, when asked if Respondent has timelines that employees must
obtain the welding certifications by, Benboe initially testified that timelines would be their
evaluations. He testified when they are given their evaluation they are asked that before their
next evaluation that this certification will be completed. Yet, Benboe claimed that he told 10 to
12 fabricators before their mid year evaluations in 2011 that they needed to become certified
welders. However, 8 or 9 of those individuals did not become certified by the end of the year.
Respondent provided no evidence that any of these individuals were warned or otherwise
disciplined. The only one who received any discipline was Sindt, who had just begun training as
a fabricator, had received no prior disciplinary action, and more than coincidentally was
soliciting employees to sign union cards. In fact, Sindt received no progressive discipline for his
alleged transgression; rather he was abruptly terminated on the same day Douglas the leading
union adherent was terminated. I find Respondent's action here establishes evidence of
disparate treatment.
Benboe testified that at some point in the latter part of 2011 he came to the decision that
Sindt should be discharged. Benboe claimed Sindt would only stay on task for the jobs he
wanted to do, and that other times, he would find him anywhere in the shop. However, Benboe
could only provide one specific instance when Sindt did not finish an assignment in what
Benboe thought to be a timely fashion.

39 Sindt's evaluations reveal he began cross training in fabrication in July.
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Benboe testified that when he the prepared year-end 2011 evaluations for Sindt and
Douglas he gave them to Bachman. Benboe testified he made a recommendation at the time
he handed in the evaluations to Bachman that these two employees were below average
performers and Respondent was not getting any benefit from them being there. However, while
Benboe claimed he recommended to Bachman that Sindt be discharged when he tendered
Sindt's evaluation to Bachman, Benboe wrote in the evaluation, "If Jerry stays in fabrication, he
will need to become certified in welding." Implicit in this statement was Benboe was not
planning on Sindt's termination, and that it was his understanding that Sindt was to be given
another opportunity to pass the welding exam.
Bachman testified it was his decision to terminate Sindt. Yet, in Bachman's affidavit,
dated April 6, 2012, Bachman stated "I don't recall the exact reasons for Jerry Sindt's
termination. I made the final decision to terminate him. I believe the majority of the reasons
was based on his performance over the period of time. I don't recall the specifics of his poor
performance or how many times it happened, without going through documentation." I find
Bachman's inability to recall the specifics as to the reason he terminated Sindt and Douglas so
close in time to their termination as indicative that his decision to terminate these leading union
adherents was not based on a review of their work, but was due to their union activities, and
that Respondent's current assertions concerning the terminations are pretextual.
At the hearing, Bachman testified Respondent ran out of the truck work and placed Sindt
into fabrication where the majority of his work was welding during the spring or summer of 2011.
Bachman testified he was aware Sindt had not received his welding certification because when
Sindt was in the truck rebuild area he could perform basic welding functions, but Respondent
had to move a certified welder there to do critical welds so they needed two people to do one
person's job. Bachman testified he felt it was a problem that Sindt did not get a welding
certificate because the job he was doing as a truck mechanic and the job he was placed in
fabrication severely limited what Respondent could use him for. Bachman testified Respondent
could not continue to have people without their progressing into the certification level. Bachman
testified there are employees Respondent retains who do not have a welding certification, if they
show fluent skills in other areas at Respondent. Bachman testified in the latter part of 2011
Sindt was assigned in part to do some basic cleanup work and scraping. Bachman testified
Sindt was given these assignments because they were limited in what they could use him for.
Bachman testified Sindt put forth no effort to further himself. However, Sindt did attempt to take
Respondent's welding certification test on multiple occasions, and passing one aspect of the
two part test in 2011. For reasons stated earlier in this decision, I have not credited Bachman's
claim that he spoke to Sindt in December 2011, and told him he needed to get certified quickly,
or that Sindt agreed to do so prior to the year end review. In this regard, Sindt credibly denied
the conversation, and Benboe who would have had to administer the test never claimed he was
informed of such a requirement by Bachman. In this regard, Benboe claimed he spoke to
Bachman as least twice about Sindt in December, once when he handed him Sindt's year end
review, and again about 5 to 7 days later when he asked for the review back. Bachman's failure
to discuss such a deadline with Benboe, Sindt's supervisor and the person who administered
the test in the circumstances here serves to confirm my conclusion that Bachman's conversation
with Sindt never took place, and that no deadline was given.
Bachman testified while, he made the final decision to terminate Sindt, Benboe
recommended the termination during the end of year reviewing process. Bachman testified he
recalled talking to Benboe about his frustration with Sindt. Benboe said basically that Sindt was
giving up not wanting to weld, constantly complaining about the job he was in and that he wants
to get back to truck rebuild. Bachman testified he thought he discussed with Benboe that when
Bachman was in the shop he observed Sindt was kind of lackadaisical, not staying on task, and
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wandering around. Bachman testified that Benboe pretty much agreed and Bachman told him
to write up what he needed to write up in the review and they would review it. Bachman testified
he had the secretaries pull up Sindt's prior reviews to see what they established and he made
his decision based off that. I do not credit Benboe or Bachman's testimony that Benboe
recommended that Sindt be terminated to Bachman. In this regard, as previously stated in
Benboe's final review of Sindt, he just stated "If Jerry stays in fabrication he will need to become
certified in welding." Implicit in that statement was that Sindt would be given another
opportunity to be complete the welding exam, and that if he failed it he would be transferred.
Moreover, Benboe testified he recommended Sindt and Douglas be terminated to Bachman
during the same conversation. Yet, Bachman could not recall such a recommendation
concerning Douglas from Benboe. The inconsistency in testimony between witnesses belies
their contention that such a recommendation was made pertaining either Sindt or Douglas.
Bachman testified he had a meeting with Benboe after he provided Bachman with his
year in review for Sindt for 2011. Bachman testified it was informal meeting. He testified he
talked to Benboe and the other foreman stating they would be terminating Douglas and Sindt
and that Bachman did not want to do it at the end of the year when they gave them their review.
Bachman testified he told the foremen to hold the reviews until the first of the year. Bachman
testified he decided to terminate Sindt because he was unwilling to progress and get a
certification, because of his abilities, and his performance. Bachman testified instances of poor
performance that Bachman observed was Sindt's unwillingness, almost to the level of
insubordination to do a particular job, and that he had a lackadaisical attitude. Bachman cited
Sindt's constant complaints to the foremen about what job they placed him on. Bachman
testified he witnessed this. Here again, Bachman's testimony was undercut by that of his
foreman. Benboe testified he was not officially informed that Sindt would be terminated until
January 2, 2012, when the employees returned from their Christmas break. Benboe did testify
he asked Bachman for the return of Douglas and Sindt's appraisals prior to the Christmas
break, but he was told Bachman wanted to return them after the break because he did not want
to administer discipline prior to Christmas. Benboe did not name anyone else as being present
for this conversation. Similarly, Shipp, who testified he was inconvenienced by Sindt's
termination in that he was given no notice to find a replacement, testified he was not notified of
Sindt's termination until January 2, when he was called in to be a witness for the termination
meeting. Shipp testified he was not previously informed or consulted about the termination.
Bachman testified he did not think they had any supervisors in the mechanical area or
truck shop at the end of the year. He testified Shipp worked there as a supervisor but they did
not have consistent activity in the truck shop at that time. It was just on a daily basis when they
were building trucks. Bachman testified Shipp was of the same opinion as Bachman that Sindt
was extremely lacking in his true mechanical abilities which would be consisting of rebuilding
engines and the type of work Sindt was doing was more of an entry-level mechanic. Bachman
testified they did not have a need for an entry-level mechanic so there was no place to put
Sindt. Contrary to Bachman's claims, I have credited Sindt that Shipp was upset and had a
strong negative reaction to Sindt's abrupt termination. Shipp exclaimed to Benboe that Sindt
was the only one who knew anything about bi-level cars. Sindt's testimony reveals that Shipp
informed Sindt that he was a good worker, and Shipp did not know why Sindt was being
terminated. While Shipp gave a different version of the events of January 2, 2012, then Sindt,
for reasons previously stated, I have credited Sindt's testimony. Shipp, however, did admit
stating that Shipp now he had to go find someone else to do the current bi-level truck work so
Shipp was going to have to pull someone from another job. Shipp testified that he borrowed
Jeff Maddy and Michael May to replace Sindt to finish the trucks and that he had to get them on
the work next day on the project. Thus, despite Bachman's claims that Sindt had a skill
deficiency; it took two employees to replace him.
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While Sindt testified he had completed his work on the bi-level trucks in December, I
have credited Shipp's testimony that there was more work to be done on the project in early
January which specifically called for Sindt's knowledge and skills. I have also credited Shipp
that he had to transfer in two employees the next day to replace Sindt in the truck shop. I find
Respondent's officials would have been aware of this when they terminated Sindt, as Shipp
informed Benboe of the need for Sindt's skills during the termination interview. I also find any
failure to investigate the ramifications of Sindt's termination leads to the conclusion it was done
for his union activities rather than any contended work deficiencies. Thus, I find contrary to
Bachman's testimony, that Respondent was in need of Sindt's services at the time it abruptly
discharged him. Bachman's failure to consult Shipp about the affect of the discharge on its
work flow in his haste to rush Sindt out the door, serves to confirm my conclusion that reasons
advanced for the discharge were pretextual. The Board has long held that an inference of
unlawful motivation is strengthened when an employer fails to consult with an employee's
immediate supervisor before taking action against the employee. See, Williams Services, Inc.
302 NLRB 492, 500 (1991); Lancer Corp., 271 NLRB 1426, 1427 fn. 6 (1984), enfd. 759 F.2d
458 (5th Cir. 1985); Industry General Corp., 225 NLRB 1230, 1233 (1976), enfd. 564 F.2d 99
(6th Cir. 1977); Midwest Hanger Co., 193 NLRB 616, 627 (1971), enfd. in relevant part 474 F.2d
1155, 1159-1160 (8th Cir. 1973), cert. denied 414 U.S. 823 (1973). At Respondent, employees
were assigned to supervision on a project basis. Sindt had been working on the bi-level trucks
prior to the Christmas break, and as Shipp testified, it was his understanding that Sindt was to
be working on under him on those trucks at the start of the New Year.
In sum, leading union adherents Douglas and Sindt, who had each worked for
Respondent for two years, were terminated on the same day, mid day, just three months after
the Union had established a visual presence at Respondent's facility. I have found that
Respondent interrogated these employees, and solicited grievances at the facility to combat the
union drive, among other things. The timing of the discharges suggests they were in response
to the employees' union activities. Concerning Sindt, he had only recently started cross training
as a fabricator, and contrary to assertions that he was not motivated he had attempted to pass
the welding test. In fact, he had passed part of the exam. There were 8 or 9 other employees
in fabrication that did not pass the test during the same time period. There was no evidence
that any of them were warned or disciplined. The testimony of Respondent's officials Bachman,
Benboe, and Shipp was inconsistent between witnesses as to the decision to terminate Sindt,
and as to what took place at the termination interview. Moreover, Shipp, to whom Sindt was
assigned at the time of his termination, was not consulted about the discharge, and he testified
he had to transfer in two employees the next day to replace Sindt. I find for these, and other
reasons previously mentioned, the reasons advanced for the discharge of Sindt by Respondent
were pretextual. Since I have found counsel for the Acting General Counsel has established a
prima facie case concerning the discharge, I find Sindt was discharged because of his union
activities in violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Relco Locomotives, Inc., (herein Respondent) is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local Union #347 is a labor
organization within the meaning of Section 2(5) of the Act.
3. By in October 2011 coercively interrogating employee Jerry Sindt about his union
activities Respondent has violated Section 8(a)(1) of the Act.
4. By in December 2011 coercively interrogating employee Mark Douglas about his
union activities Respondent has violated Section 8(a)(1) of the Act.
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5. By in December 2011 instructing employees not to distribute union authorization cards
on company time Respondent has violated Section 8(a)(1) of the Act.
6. By in November or early December 2011 soliciting employee complaints and
grievances, and impliedly promising to remedy those complaints and grievances in response to
employee union activities Respondent has violated Section 8(a)(1) of the Act.
7. By maintaining a solicitation and distribution policy requiring employees to seek
authorization from management before employees engaged in any solicitation and distributions
Respondent has violated Section 8(a)(1) of the Act.
8. By discharging Mark Douglas and Jerry Sindt on January 2, 2012, because they
engaged in union and other protected concerted activities and in order to discourage its
employees participation and or membership in a labor organization Respondent has violated
Section 8(a)(1) and (3) of the Act.
9. Respondent’s unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent having discriminatorily discharged
employees Mark Douglas and Jerry Sindt must offer them reinstatement and make them
whole for any loss of earnings and other benefits from January 2, 2012, the date of their
discharge to the date of a proper offer of reinstatement, less any net interim earnings.
Backpay shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No.
8 (2010), enf. denied on other grounds sub.nom., Jackson Hospital Corp. v. NLRB, 647
F.3d 1137 (D.C. Cir. 2011).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended40
ORDER
The Respondent, Relco Locomotives, Inc., located in Albia, Iowa, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Coercively questioning its employees about their union activities on behalf of International
Brotherhood of Electrical Workers, Local Union #347, or any other labor organization.
(b) Instructing employees not to distribute union authorization cards on company time.
(c) Soliciting employee complaints and grievances, and impliedly promising to remedy those
complaints and grievances in response to and to discourage employee union activities.
(d) Maintaining a distribution and solicitation policy requiring employees to seek authorization
from management before employees engage in any distribution or solicitation including that
during non work time and in non work areas.
(e) Discharging employees because they engage in union activities, other protected concerted
activities and to discourage employees from engaging in those activities.

40 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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(f) 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 to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, expunge the requirement in Respondent's
handbook that, "Employees are not permitted to …solicit or distribute literature without
management approval," and notify employees in writing that this has been done.
(b) Within 14 days from the date of this Order, offer employees Mark Douglas and Jerry Sindt
full reinstatement to their former positions without prejudice to their seniority or any other rights
or privileges previously enjoyed, discharging any employee, if necessary.
(c) Make Mark Douglas and Jerry Sindt whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in the manner set forth in the remedy
section of this decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful termination of Mark Douglas and Jerry Sindt, and within 3 days thereafter notify them in
writing that this has been done and that the termination will not be used against them in any
way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director
may allow for good cause shown, provide at a reasonable place to be designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of back pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its facility in Albia, Iowa copies of the
attached notice marked “Appendix.”41 Copies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Respondent's authorized representative, shall
be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed its operations at Albia, Iowa, 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 October 1, 2011.
(g) 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.
Dated, Washington, D.C. September 25, 2012
_______________________
Eric M. Fine
Administrative Law Judge

41 If this Order is enforced by a Judgment of the 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.”
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 our employees about their activities on behalf of the
International Brotherhood of Electrical Workers, Local Union #347 or any other labor
organization.
WE WILL NOT instruct employees not to distribute union authorization cards on
company time.
WE WILL NOT solicit employee complaints and grievances, and impliedly promising to
remedy those complaints and grievances in response to and to discourage employee union
activities.
WE WILL NOT maintaining a solicitation and distribution policy requiring employees to
obtain management approval for soliciting and distributing in non work areas during non work
time.
WE WILL NOT discharge employees because they engage in activities on behalf of the
International Brotherhood of Electrical Workers, Local Union #347, or any other labor
organization, and to discourage employees from engaging in union activities.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board's Order expunge the requirement
from our employee handbook that, "Employees are not permitted to …solicit or distribute
literature without management approval," and notify employees in writing that this has been
done.
WE WILL, within 14 days from the date of the Board’s Order, offer employees Mark
Douglas and Jerry Sindt full reinstatement to their former position without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Mark Douglas and Jerry Sindt whole for any loss of earnings and other
benefits suffered as a result of their unlawful terminations in the manner set forth in Board’s
decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful termination of Mark Douglas and Jerry Sindt, and within 3 days
thereafter notify them in writing this has been done and their terminations will not be used
against them in any way.
RELCO LOCOMOTIVES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov. 330 South Second Avenue, Towle Building, Suite 790 Minneapolis, Minnesota
55401-2221 Hours: 8 a.m. to 4:30 p.m. 612-348-1757.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, 612-348-1770.