Roemer Industries, Inc,

National Labor Relations Board - Administrative Judge Opinions

Nov 5, 2014

08-CA-124110 (N.L.R.B. Nov. 5, 2014)

JD–64–14
Masury, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ROEMER INDUSTRIES, INC.,
and Case No. 8–CA–124110
UNITED STEEL PAPER & FORESTRY
RUBBER MANUFACTURING ENERGY
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
AFL–CIO, CLC.
Counsel:
LerVal M. Elva, Esq. and Iva Y. Choe, Esq. (NLRB Region 8)
of Cleveland, Ohio, for the General Counsel
Matthew D. Austin, Esq. (Roetzel & Andress, LPA)
of Columbus, Ohio, for the Respondent
Nancy A. Parker, Esq. (United Steelworkers of America)
of Pittsburgh, Pennsylvania for the Charging Party
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves an employer that
disciplined two employees, each an elected union representative, for their conduct in investigating
a grievance dispute, and additionally, further disciplined one of the two employees for negative
comments he made to coworkers about another coworker, after the coworker reported him to
management for involving him in the grievance investigation. The government alleges that these
disciplinary actions constitute unlawful discrimination against employees engaged in union activity
protected by the National Labor Relations Act (Act).
The employer’s defense is that it took action against the employees for misconduct
unprotected by the Act. As discussed herein, the defense is meritless under the facts here. As
for the one-day suspensions, there was no misconduct—egregious or even slight. Rather, the
employees were disciplined for engaging in the most routine of activities related to investigation of
a grievance: finding out what happened and seeking a witness for an eventual arbitration. The
Act protects the right to question a coworker about a grievance in an unthreatening and
uncoercive manner, as happened here, even if the coworker is upset and unhappy to have been
involved in the investigation. As to the allegedly disparaging comments that prompted the three-
day suspension, informing coworkers about another coworker who reported the union
representative to management for lawful union activity is hardly conduct for which the protections
of the Act can be lost. This is true notwithstanding that it involved speaking negatively (but not
JD–64–14
2
threateningly, profanely, or abusively) of the coworker. As discussed herein, I find that the only
accusation against either employee that could be labeled as serious misconduct—the employer’s
assertion at trial that the employees attempted to procure false testimony from their coworker—is
an after-the-fact invention of the employer, presented solely through hearsay testimony from
management witnesses and without contemporaneous corroboration that one would expect were 5
the allegation true, or even believed by the employer. In sum, this employer has penalized
routine grievance handling and the expression of differences of opinion between coworkers, a
result that is inimical to the most fundamental precepts of the Act.
STATEMENT OF THE CASE
10
On March 10, 2014, the United Steel, Paper, and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC (Union) filed an
unfair labor practice charge alleging violations of the Act by Roemer Industries, Inc. (Roemer),
docketed by Region 8 of the National Labor Relations Board (Board) as Case 08–CA–124110.
Based on an investigation into the charge, on May 30, 2014, the Board’s General Counsel, by the15
Regional Director for Region 8 of the Board, issued a complaint alleging that Roemer violated the
Act. Roemer filed an answer denying all alleged violations of the Act.
A trial was conducted in this matter on August 26, 2014, in Cleveland, Ohio. Counsel for
the General Counsel, the Union and Roemer filed posttrial briefs in support of their positions by 20
October 6, 2014. On the entire record, I make the following findings, conclusions of law, and
recommendations.
JURISDICTION
25
Roemer is an Ohio corporation with an office and place of business in Masury, Ohio. It is
engaged in the manufacture and the nonretail sale of custom graphic industrial identification
products. Annually, in conducting its operations, Roemer sells and ships from its Masury, Ohio
facility, products, goods, and materials valued in excess of $50,000 directly to points outside the
State of Ohio. Roemer admits that at all material times it has been an employer engaged in 30
commerce within the meaning of Section 2(2), (6), and (7) of the Act. Roemer further admits that
at all material times the Union has been a labor organization within the meaning of Section 2(5) of
the Act.
Based on the foregoing, I find that this dispute affects commerce and that the Board has 35
jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
Below, I first set forth my findings of fact, based on consideration of the record as a whole. 40
Second, I discuss separately my discrediting of the factual assertion advanced by the
Respondent that the union officials involved in this case attempted to obtain false testimony from
their coworker. For reasons discussed herein, I find that the evidence does not support that
claim, or the claim that the Respondent’s management officials believed it to be true at the time 45
they disciplined the union officials.
Finally, based on the factual findings, I turn to analysis of the allegations that the
Respondent’s conduct in disciplining the union officials’ violated the Act.
50
JD–64–14
3
I. Findings of Fact
Background
Respondent Roemer manufactures graphic industrial identification products including 5
nameplates, labels, panels, and metal and plastic details. It has been in business since 1937.
For many years (the record evidence indicates since at least 1992), Roemer’s production
and maintenance employees have been represented for purposes of collective bargaining by the
Union (or its predecessor). The current collective-bargaining agreement between Roemer and 10
the Union was effective February 22, 2013. The agreement provides for a grievance procedure
culminating in arbitration for resolution of disputes.
Since 1986 Roemer has been owned by the current CEO, Joseph O’Toole. Roemer’s
production supervisor is Ann Fraley.15
Ronald Merrick is a 20-plus year Roemer employee and the elected union unit chair for
the Roemer employees. Geraldine Dolata is a 15-plus year Roemer employee and the elected
union unit griever.
20
Investigation of the Haas Grievance
In early September 2013, a Roemer employee, Bruce Haas, was given a three-day
suspension for incorrectly cutting parts. Based on Haas’s cuts, another employee, Brad Johnson,
had problems shearing the parts later in the production process. Johnson showed Roemer’s 25
production supervisor Fraley the “bad cuts” made by Haas. According to Johnson, Haas’s cuts
“weren’t square.”1 In addition, Johnson testified that while Haas’s parts were originally printed
square (before Haas cut them), the parts were “different size sheets.” Both of these could be
(and according to Johnson, were) true at the same time: according to Johnson “they could be
different size sheets and they could be unsquare cut at the same time.” 30
Haas grieved his discipline pursuant to the dispute resolution procedures set forth in the
collective-bargaining agreement. Union Representatives Dolata and Merrick decided to speak to
Johnson as part of their investigation of the Haas grievance. Dolata knew in advance that
Johnson was unlikely to want to talk with them and told this to Merrick, but they went forward to 35
speak with him on the morning of September 11, 2013.
That morning Dolata and Merrick had an approximately three to five-minute conversation
with Johnson before the 7 a.m. shift by the back entrance door to the workshop area of the
facility. Johnson was sitting on a wall just outside the facility smoking a cigarette. Dolata called 40
Johnson over. Johnson got up and walked over to them. There were other employees around
the area but no one else could hear their conversation. Dolata testified that she asked Johnson
“what exactly was the problem with the [Haas] job because we had heard that they were
unsquare and then that the sheets were uneven cuts.” Merrick testified that they asked Johnson
“whether he thought that the parts were unsquare or whether they were different sizes or what he 45
thought the problem could possibly have been.” According to Merrick, Johnson replied that “he

1Johnson explained that this meant the cuts were not at 90 degree angles, and as a result the
sides of the cut square were not the same size.
JD–64–14
4
sheared three sides of the sheets without a problem and that he had an issue when he went to
the fourth side.” Johnson testified that Dolata asked him whether the parts he was shearing were
“printed square or was it different sizes.” Johnson testified that he told Dolata, “that they were
printed squared and they were all different sizes.” Johnson, Dolata, and Merrick testified that
Merrick then asked if Johnson would be willing to testify in front of an arbitrator as to that. Upon 5
hearing that, Johnson testified that “I was like Wow.” By the account of all three, Johnson did not
answer the question. He shook his head or shrugged his shoulders and walked away. Dolata
and Merrick went into the building to begin their 7 a.m. workshift. Merrick and Dolata testified
without contradiction by Johnson that there were no raised voices, threatening statements, or
hostility displayed by anyone during this discussion. Johnson’s account of the meeting also did 10
not describe any such conduct or affect. Merrick and Dolata testified that they saw no outward
indication that Johnson did not want to talk to them.2
Johnson complains to Fraley; the Employer disciplines Merrick and Dolata
15
Johnson was upset by the prospect of testifying at an arbitration hearing. At the hearing
in this matter, Johnson testified that, at work that morning, after the conversation with Dolata and
Merrick, he started to think about the conversation. “I just didn’t want to get involved. . . . Like I
didn’t want to be here today, I just didn’t want to get involved, because I—I just didn’t.”
20
When Johnson saw production supervisor Ann Fraley making her morning rounds through
the shop, Johnson asked to speak to her. Johnson appeared upset and his hands were shaking.
Fraley said they should go to her office. Once there, Johnson testified that he said that “Gerri and
Ron asked me to—what was wrong with the sheets. . . . [A]nd I said they wanted me to testify
against Bruce on—or for Bruce and I don’t want to do it, I don’t want to be involved.” According to 25
Fraley, Johnson asked Fraley to “talk to Ron [Merrick] and ask him to leave me alone.” Fraley
told Johnson to remain in the office and she called Merrick into her office.
With Johnson present, Fraley told Merrick that Johnson did not want to be involved. As
Johnson explained: “Ann said, Ron, he doesn’t want to—you guys asked him to testify for Bruce 30
and he doesn’t want to do it.” Merrick testified that Fraley “told me that Brad did not want to
participate in the investigation, that he was having heart problems.” Merrick said nothing of
substance in reply (he said, “whatever,” according to Fraley). Fraley then asked Merrick to leave.
There was no raised voices or overt hostility in this meeting, although Johnson testified that he
could “tell [Merrick] was mad in his voice because his answers were like real short and they were 35
like Yes and kind of like that.”
40

2The Respondent contends in its brief (without any evidentiary basis at all) that Merrick sought
testimony from Johnson regarding the tolerance limits permitted for Haas’s cuts. Yet, Fraley
corroborates that the issue discussed by Merrick and Johnson (as she heard about it) involved
the issue of “unsquare [cuts]” and “different sizes.” I note that the Respondent argued in its April
21, 2014 position paper submitted to the Region during the investigation of this case that the
question of tolerance limits was the focus of the Merrick/Johnson incident. However, this went
unmentioned at trial by Johnson, Merrick, Dolata, Fraley, or O’Toole.
JD–64–14
5
Merrick was, indeed, upset. He left, slamming the office door behind him, and walked
through the shipping area speaking loudly. Neither Fraley nor Johnson could hear what he was
saying, but heard the sound of his voice. Merrick testified that as he walked through the shipping
area he “mumbled [‘]backstabber[‘] and [‘]couldn’t be trusted[‘] and proceeded to my workstation.”
Later that day, September 11, when clocking out at 3:30 p.m., Johnson encountered co-employee 5
Shane Merchant. Merchant told Johnson that he had heard from Merrick that he was not
“supposed to trust [you] because you’re a backstabber and you’re not to be trusted.” The next
morning, Johnson reported this to Fraley.
On September 11, after the meeting with Johnson and Merrick, Fraley wrote an account of 10
the meeting. She wrote, signed, and dated (9/11/13) the following account of the meeting “[t]o
make sure that . . . I had proof that Ron was making Brad upset”:
On 9/11/13 shortly after Brad Johnson started working he came to me to ask me if
he could talk to me. Brad was pretty upset and shaking. He told me that he does 15
not want involved [sic] in Bruce Haas’s grievance. He said Ron Merrick & Gerrie
Dolata questioned him. He asked me to call Ron to my office to let him know that
Brad does not want involved [sic]. Brad said he has heart problems and can’t deal
with it.
20
Fraley testified that she reported her conversation with Johnson and Merrick to O’Toole,
the owner and CEO of Roemer. O’Toole makes most of the disciplinary decisions at Roemer.
O’Toole testified that Fraley told him “about Brad Johnson coming to her trembling and upset that
he was being involved in a previous grievance investigation and hearing.”
25
O’Toole did not remember anything else about the conversation, or much else about his
subsequent “investigation.” He testified that he “investigated further,” and “had discussions with
other people in management” but could not remember who they were. According to O’Toole, if
he talked to other employees, “I don’t remember who it was.” O’Toole testified that “I believe I
talked to Johnson myself.” However, I discredit this unconvincing claim.3 30
O’Toole said he wanted to determine “whether or not there was a bullying situation going
on.” O’Toole did not speak to Merrick or Dolata about the incident before making his decision to
discipline them. O’Toole testified that “I was convinced that there was some sort of bullying going
on where [Johnson] he was being pressured to do something against his will. So I made the 35

3Johnson did not recall—and it was clear from his demeanor that he was denying it—having
any contemporaneous conversation with O’Toole about the incident. (When the alleged
conversation was described to him he replied, “No, I don’t—I don’t ever recall that”). I believe that
Johnson would have remembered talking to the CEO and owner of the Employer about this
incident, had it been part of O’Toole’s investigation. The matter would have had greater
significance to Johnson than to O’Toole. (Indeed, Johnson did remember O’Toole calling him to
his office after unfair labor practice charges were filed (which occurred in March 2014) to tell him
“there’s been Labor Board charges filed against me . . . from Ron Merrick.”) In other words,
Johnson would be most unlikely to have forgotten that he spoke to O’Toole, the owner and CEO,
about the incident if he had. But Johnson credibly did not know of such a conversation. In
addition, Johnson is more credible than O’Toole because O’Toole was unsure if he talked to
Johnson. When asked about it, O’Toole testified: “I believe I talked to Johnson myself, I’m not
sure,” before recounting the purported conversation. Given these factors, I credit Johnson’s
testimony, and find that he did not speak to O’Toole about the incident prior to the discipline being
issued and I discredit O’Toole’s “belief” that he did.
JD–64–14
6
decision based on that, that discipline needed to be issued.” According to O’Toole, the matter
required a suspension because “[t]he action [Dolata and Merrick] took struck some fear in
Johnson.” O’Toole said that he was not sure what that “action” was: “I wasn’t there. I was just
going on the reaction of Johnson.”
5
On September 12, O’Toole conveyed to Dolata and to Merrick (in separate incidents) that
they were receiving a one-day suspension for “intimidation and bullying of Brad Johnson”
pursuant to Roemer’s “Threats and Violence Policy.”4
Dolata told O’Toole that “I would not put anybody in that position and make them feel that 10
they were intimidated.” Merrick testified that he found out about the suspension from O’Toole and
General Manager Mike Farmer, who approached him. O’Toole asked Merrick “why it took two
people to investigate or talk to Brad.” Merrick told O’Toole that “we normally do things together”
and O’Toole told him “[y]ou don’t know how much I don’t believe you right now.” The disciplinary
notices were subsequently given to Dolata and Merrick by Fraley in her office at the end of the 15
day.
The disciplinary notices provided to Dolata and Merrick each meted out a one-day
suspension and stated that the violation occurred on September 11, 2013, at approximately 6:55
a.m. The violation was described as: “’Threats & Violence Policy’ violation outside employee 20
entrance.”

4 The text of Roemer’s Threats and Violence policy is as follows:
Roemer Industries is dedicated to maintaining a work environment which is free
from intimidation, threats or violent acts. This includes, but is not limited to,
intimidating, threatening or hostile behaviors, physical abuse, vandalism, arson,
sabotage, use of weapons, carrying weapons of any kind onto Company property,
or any other act, which, in management’s opinion, is inappropriate to the
workplace. In addition: jokes or offensive comments regarding violent events will
not be tolerated and may result in disciplinary measures.
Employees who feel they have been subjected to any of the behaviors listed above
are requested to immediately report the incident to their supervisor or a human
resource representative. All complaints will be promptly investigated and
appropriate action will be taken.
Employees who observe or have knowledge of any violation of this policy should
immediately report it to Company management. Employees are empowered to
contact the proper law enforcement authorities without first informing management
if they believe a threat to the safety of others exists.
Any illegal and/or unauthorized articles discovered on Company property may be
taken into custody and may be turned over to law enforcement representatives.
Any company employee who is found to be in possession of prohibited articles will
be subject to disciplinary action up to and including termination.
JD–64–14
7
Dolata marked the form’s preprinted statement saying that she disagreed with the
Employer’s description of the violation and wrote: “I was not on Company time when I spoke with
employee. I have the right to investigate.” Merrick also marked the preprinted statement saying
he disagreed, and wrote: “Have the right to investigate grievances & ask questions.”
5
O’Toole also determined that in addition to the one-day suspension, Merrick should
receive a three-day suspension for telling other employees, after his meeting with Fraley and
Johnson, that Johnson was a “backstabber” and was not to be trusted. O’Toole testified that
Fraley came to him and told him about Merrick “making some comments to several people at
several different times in the shop about not trusting Brad Johnson, he’s a backstabber, you guys 10
shouldn’t trust him.” Fraley did not mention to whom Merrick allegedly said this.
O’Toole did not speak to Johnson or other employees about these comments. He asked
Merrick about it. O’Toole testified that Merrick admitted it was true.5 On that basis, O’Toole
immediately decided to issue a notice for an additional three-day suspension for Merrick, again as 15
a violation of the “Threats and Violence” policy. O’Toole testified that Merrick’s comments
constituted “bullying another employee, namely Johnson, by going around and besmirching his
name, and the investigation was complete upon his admission that he had done it.” O’Toole told
Merrick that he was getting an additional three-day suspension.6
20
Merrick received this second writeup from Fraley at the end of the day on September 12,
at the same time he received the one-day suspension. This writeup described the violation as:
“’Threats & Violence’ Policy violation. During the day of 9/11/13 to various
employees, Ron accused Brad Johnson of being a ‘Back Stabber’ and stating that 25
he should not be trusted.”
Merrick signed the writeup, marking on the preprinted form that he disagreed with the
Employer’s description of the violation and writing, “stated my own personal opinion[.] I was not
threatening Brad Johnson.”30
Dolata and Merrick served their respective suspensions and grieved the discipline. At the
time of the hearing the grievances were still pending.
Johnson testified that after the incident, he and Merrick never spoke again about the incident 35
or the name calling. They have continued to work together and the interactions have been
positive. Dolata described she and Merrick as friends, who speak socially.

5Merrick did not recall O’Toole asking him if he made the comments, but Merrick did agree at
trial—albeit in slightly different context—that he made such comments.
6Merrick testified that O’Toole told him about the three-day suspension in the same
conversation in which O’Toole told him about the one-day suspension. O’Toole testified that he
informed Merrick of the three-day suspension in a second conversation several hours after the
first. Generally, there was a vagueness in O’Toole’s account of all these events, and references
by him to his own lack of recollection, that lead me to credit Merrick’s account over O’Toole’s,
including the presence of Farmer (something not mentioned by O’Toole in his testimony).
However, I also note that these discrepancies are of little or no import.
JD–64–14
8
Dolata and Merrick are the only two people that have ever been disciplined under the Threats
and Violence policy.7
II. The claim that that Merrick or Dolata attempted
to convince Johnson agree to give false testimony 5
A central claim of Roemer’s defense involves the allegation that when meeting with
Johnson regarding the Haas grievance, Merrick and Dolata attempted to induce Johnson to agree
to give false testimony in conjunction with the grievance.
10
I reject and discredit this claim, and even the contention that Roemer’s witnesses believed
it.
At the hearing, Fraley repeatedly testified that Johnson told her that in his conversation
with Merrick and Dolata, Merrick attempted to “get [Johnson] to change his wording” about the 15
Haas grievance.8 Fraley also testified that she told this to Respondent’s human resources/
bookkeeping manager Connie Bistarkey 9(Tr. 34) and that she told this to O’Toole (Tr. 42). Fraley
also testified that she told this to Merrick during the meeting in her office with Johnson and
Merrick. (Tr. 150).
20
In addition, O’Toole testified he talked to Johnson about the conversation with Merrick and
Dolata, and Johnson told him “[t]hey wanted him to change his testimony in another grievance”

7I note that the Respondent’s brief (R. Br. at 4–5) contains many assertions not based on any
record evidence, particularly about the nature of the Haas’s discipline and what the Respondent’s
brief calls the “outlandish” grievance filed over Haas’s discipline. In addition, the Respondent’s
brief attaches what purports to be a copy of the Haas grievance. None of this was proffered at
trial. The Respondent claims (R. Br. at 4 fn. 1) that all of this is akin to an offer of proof, evidence
that “would have been presented had Roemer been permitted to develop its theory of the case.”
This is entirely improper. First, no offer of proof was proffered or requested at trial. It is not the
Respondent’s prerogative to make and grant its own offer of proof in posttrial briefing. See,
Fed.R.Evid. 103(a). In any event, as I ruled at trial, anything more than a summary of the Haas
grievance (which I permitted) is not relevant to the proceeding. As discussed below, the
lawfulness of the Respondent’s disciplining of Merrick and Dolata for their actions in investigating
the Haas grievance does not turn on the merits of the Haas grievance, or anyone’s view of the
merits of that grievance.
8“He told me that he felt that Ron Merrick was trying to get him to change his wording” (Tr.
24); “he felt that Ron was trying to get him to change his wording, he said” (Tr. 25); “Brad said
that they were trying to get him to change his wording” (Tr. 26); Fraley agreed that “Johnson said
that Merrick was trying to get him—Johnson to change his statement or change his wording . . .
[f]rom unsquare cut to different sizes” (Tr. 44); Johnson “told me that Ron and Gerri were trying to
get him to change his wording about Bruce Haas’s grievance from unsquare to different sizes
only” (Tr. 149).
9Bistarkey’s name is spelled “Distarkey” in the record. However, in their posthearing briefs,
both the Respondent and the General Counsel represent that her correct name is Bistarkey.
Given the unanimity of opinion, I amend the record as follows: all record references to “Distarkey”
are hereby corrected to read “Bistarkey.”.

JD–64–14
9
(Tr. 57.); see also (Tr. 58) (“They were trying to get him to change his testimony in an arbitration
case.”).
I reject these assertions for the following reasons.
5
First of all, the claim that Merrick attempted to have Johnson change his testimony is
based exclusively on hearsay. It is based exclusively on Fraley’s testimony about what Johnson
told her, and, in one instance, on O’Toole’s (previously discredited, see above) testimony about
what Johnson told him.
10
Putting aside for the moment whether Johnson really told either of them this, the truth of
the matter asserted—i.e., that Merrick did this—was not testified to by anyone who heard Merrick
say it. Dolata did not testify to anything like that being said in the conversation. Neither did
Merrick, who took the stand on rebuttal to deny it. And, perhaps most importantly, it is also the
case that Johnson—although testifying repeatedly and credibly about the incident with Dolata and 15
Merrick—never made such a claim. On brief, the Respondent suggests that Johnson, Dolata,
and Merrick are conspiring to hide what was said in their conversation, but this argument appears
to be prompted simply by the lack of first-hand evidence to support the Respondent’s claims.
Johnson appeared to me, once on the stand, very willing to testify honestly and capably. 20
Had he given an account consistent with what Fraley and O’Toole claimed he said, the matter
might look different. But he did not. At the end of the day, I found Merrick, Dolata, and Johnson
credible witnesses. None of them, including Johnson, gave an account of their conversation that
could remotely be considered an effort to by Dolata or Merrick to have him “change his
testimony.” Thus, we have three witnesses giving consistent testimony about their conversation. 25
Only hearsay evidence supports the claim that Merrick sought to have Johnson change his
testimony. On this record I find it did not happen.
But that is not the end of the evidence. There is still further reason to reject the
Respondent’s claim that Merrick asked Johnson to change his testimony, and, moreover, reason 30
to reject Fraley and O’Toole’s claims that Johnson told them this, or that they believed it.
Had Johnson’s complaint to Fraley been that Merrick was attempting to get him to change
his statement—a matter that the Respondent’s brief emphasizes as the heart of the misconduct
justifying discipline—one would expect to see the claim mentioned in the contemporaneous 35
statement of the incident that Fraley wrote immediately after meeting with Johnson and Merrick
for the very purpose of documenting the offense. However, Fraley’s statement says absolutely
nothing about Merrick or Dolata attempting to have Johnson change his statement. Nothing.10
Were the allegation true, the absence of it from the contemporaneous prior statement is
inexplicable, and unexplained. But if the allegation is not true, and is a litigation-inspired 40

10I reproduce, again, Fraley’s contemporaneous account:
On 9/11/13 shortly after Brad Johnson started working he came to me to ask me if
he could talk to me. Brad was pretty upset and shaking. He told me that he does
not want involved [sic] in Bruce Haas’s grievance. He said Ron Merrick & Gerrie
Dolata questioned him. He asked me to call Ron to my office to let him know that
Brad does not want involved [sic]. Brad said he has heart problems and can’t deal
with it.
JD–64–14
10
invention, then it makes perfect sense that it would be absent from Fraley’s contemporaneous
account. I go with what makes sense.
But that is not all. Fraley seemed to recognize the problem and when asked by counsel
for the General Counsel about her prior statement, she initially denied taking “any notes as part of 5
[the] investigation into Geraldine Dolata and Ronald Merrick’s September 11 conversation with
Johnson.”11 But it turned out she had. It was her contemporaneous account of events and they
omit a central claim of the Respondent’s defense. Fraley’s evasiveness on whether there were
any notes taken on the incident, combined with the omission of the claim from the notes she was
revealed to have taken, powerfully support the finding I am making that Merrick and/or Dolata did 10
not try to procure false testimony from Johnson, and further, that Fraley did not believe it either.
Fraley’s claims are further undermined by her testimony that she got the idea to write the
contemporaneous account from Human Resources Officer Bistarkey, whom she says she told the
story of the incident to that day, September 11. Fraley claimed she told Bistarkey about what 15
Johnson had said, including that Johnson said that Merrick was “trying to get him to change his
wording about Bruce’s grievance.” After hearing the story, Fraley says that Bistarkey told her,
“don’t forget to document that.” But not only does the document she created, allegedly at
Bistarkey’s urging, not mention the key claim, but Bistarkey testified that she did not know of the
“situation leading to their discipline” before she was provided with the disciplinary writeups to file, 20
something which could not have occurred until after Fraley met with Dolata and Merrick on
September 12 when they signed the writeups. Thus, Bistarkey’s testimony is irreconcilable with
Fraley’s claim that Fraley told Bistarkey about the incident on September 11.
In addition to the foregoing, it is also notable that the central charge that the Respondent 25
made at trial against Merrick and Dolata—attempting to induce Johnson to give false testimony to
an arbitrator—was not mentioned in any shape or form in the disciplinary writeup of either Merrick
or Dolata.
At this point there is a risk of beating a dead horse as to the lack of corroboration for 30
Fraley’s claim—a lack of corroboration that is unexplained, inexplicable, and renders her story
highly implausible. But for the record, I further note that while Fraley testified that she told
O’Toole that Johnson said that Merrick was “trying to get him to change his wording of Bruce
Haas’s grievance and writeup,” O’Toole did not back this up. He testified that Fraley talked to him
about the incident, but his account of his conversation (some of which he said he could not 35
remember) contained nothing about anyone trying to get Johnson to change his statement or
testimony (Tr. 55). And of course, neither Johnson nor Merrick corroborated Fraley’s claims that
in the meeting with Johnson and Merrick she told Merrick that Johnson was accusing Merrick of
attempting to have Johnson change his testimony.
40

11 Q. Did you take any notes as part of your investigation into Geraldine Dolata
and Merrick's September 11th conversation with Johnson?
A. No.
Q. You took no notes?
A. I took no notes.
JD–64–14
11
O’Toole, for his part, did testify that he spoke to Johnson about the incident as part of his
investigation and that Johnson told him that “[t]hey wanted him to change his testimony in another
grievance.” However, I have already discredited O’Toole’s testimony that he spoke with Johnson,
for the reasons set forth above. Accordingly, O’Toole’s assertion that Johnson told him that
Merrick and/or Dolata were trying to “change his testimony” must be, and is, discredited. 5
At the end of the day, Fraley’s claim that Johnson told her that he was being solicited to
change his testimony is not substantiated and not corroborated, at many and indeed at every
point where one would expect it to be, were it true, or even truly believed by the Respondent.12
10
Having said that, I suspect that that Johnson’s accurate account of what Merrick and
Dolata said to him can be spun to include the claim that they wanted him to change his statement
in the specific sense that Dolata and Merrick were looking for whether Johnson could corroborate
additional possible sources for the errors found in Haas’s work. But this bears no relationship to
the suggestion the Respondent makes on brief—and that I believe Fraley intended to imply—that15
that Merrick and Dolata were attempting to have Johnson “provide false or misleading testimony”
(R. Br. at 16; see also R. Br. at 14, 19) and/or that the Respondent believed this to be to be the
case. (R. Br. at 10, 15, 16). There is no credible evidence for that. Rather, the lack of direct
evidence for it, combined with the lack of contemporaneous corroboration for this claim, strongly
suggest that it is a litigation-inspired recent fabrication, developed to create new, additional, and 20
more defensible grounds for the disciplinary action.13
Analysis
25
Legal Framework
The complaint in this case alleges that the suspensions given to Dolata and Merrick
constituted unlawful anti-union discrimination in violation of Section 8(a)(3) of the Act. See
complaint paragraphs 6–7.1430
The General Counsel argues that Merrick and Dolata were engaged in protected union
activity and were disciplined for conduct that was part of the course of their protected activities
(i.e., part of the “res gestae” of their protected union activity).
35
In considering the General Counsel’s claim the first inquiry in the analysis is whether
Dolata and Merrick were engaged in protected activity, and specifically, whether the actions for
which they were disciplined were part of that protected activity. If so, I must then consider
whether the conduct for which they were disciplined was so egregious as to cause them to lose

12I note that I decline the Respondent’s invitation (R. Br. at 17) to credit Fraley and O’Toole on
the grounds that they are management and “management ha[s] no motive to misrepresent what
occurred.”
13In light of my findings, I do not reach the question of whether, had Dolata/Merrick attempted
to solicit false testimony from Johnson, or whether, had Roemer disciplined Dolata/Merrick in the
good-faith belief that they had, it would change the outcome of this case.
14As any conduct found to be a violation of Sec. 8(a)(3) would also discourage employees'
Sec. 7 rights, any violation of Sec. 8(a)(3) is also a derivative violation of Sec. 8(a)(1). Chinese
Daily News, 346 NLRB 906, 934 (2006), enf’d. 224 Fed. Appx. 6 (D.C. Cir. 2007).
JD–64–14
12
the protection of the Act, and thus permit the employer to lawfully punish them for otherwise
protected activities. Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1034 (1976)
(union steward’s conduct in processing grievance protected by the Act “unless the excess is
extraordinary, obnoxious, wholly unjustified, and departs from the res gestae of the grievance
procedure”); Union Fork & Hoe Co., 241 NLRB 907, 908 (1979) (“well-established Board law that 5
a steward is protected by the Act when fulfilling his role in processing a grievance” unless the
steward “exceed[s] the line . . . [in a manner] in which the misconduct is so violent or of such
character as to render the employee unit for further service”) (internal quotations omitted). See
also United Cable Television Corp., 299 NLRB 138 (1990), quoting Dreis & Krump Mfg., 221
NLRB 309, 315 (1975) (“In order for an employee engaged in such activity to forfeit his Section 7 10
protection his misconduct must be so ‘flagrant, violent, or extreme’ as to render him unfit for
further service”), enf’d. 544 F.2d 320 (7th Cir. 1976).
It is not without reason that “the Board has long held that in the context of protected
concerted activity by employees, a certain degree of leeway is allowed in terms of the manner in 15
which they conduct themselves." Health Car & Retirement Corp., 306 NLRB 63, 65 (1992), enf’t.
denied on other grounds, 987 F.2d 1256 (6th Cir. 1993), affd. 511 U.S. 571 (1994). “The
protections Section 7 afford would be meaningless were we not to take into account the realities
of industrial life and the fact that disputes over wages, hours, and working conditions are among
the disputes most likely to engender ill feelings and strong responses.” Consumer Power Co., 20
282 NLRB 130, 132 (1986). “Nevertheless, an employee's otherwise protected activity may
become unprotected 'if in the course of engaging in such activity, [the employee] uses sufficiently
opprobrious, profane, defamatory, or malicious language.'" Honda of America, 334 NLRB 746,
747 (2001).
25
Finally, in assessing whether the employees’ conduct removed the protections of the Act,
the asserted impropriety "cannot be considered in a vacuum" nor "separated from what led up to
it." NLRB v. Thor Power Tool, Co., 351 F.2d 584, 586 (7th Cir. 1965); Emarco, Inc., 284 NLRB
832, 834 (1987) (“the [intemperate] remarks of the Charging Parties to Poleri cannot be
considered in a vacuum“).1530

15Contrary to the Respondent’s argument on brief, this is not an appropriate case in which to
apply Wright Line, 251 NLRB 1083 (1980). Where an employer defends disciplinary action based
on employee conduct that is part of the res gestae of the employee’s protected activity, Wright
Line is inapplicable. This is because the causal connection between the protected activity and
the discipline is not in dispute. Postal Service, 360 NLRB No. 74, slip op. at 7 (2014); See,
American Steel Erectors, 339 NLRB 1315, 1316 (2003) (citing Neff-Perkins, Co., 315 NLRB 1229
fn. 2 (1994)). Here, all of the employer’s various asserted rationales and permutations for
disciplining Dolata and Merrick—including the one I have discredited, i.e., the claim that Merrick
and Dolata were seeking to convince Johnson to provide false testimony in an arbitration
hearing—assert that the basis for the discipline was conduct that the General Counsel argues
was part of the res gestae of the union representatives’ course of protected activity of
investigating and preparing the Haas grievance. Thus, the analysis does not involve Wright Line,
but rather the question of whether the employees’ conduct was in the course of the protected
union activity and, if so, was egregious enough to remove the protections of the Act. If protected,
then the 8(a)(3) violation is established because the antiunion motive is not in dispute—the
protected union conduct was the motive for the discipline.

JD–64–14
13
The one-day suspensions given to Merrick and Dolata
As to the one-day suspension for meeting with Johnson, there can be no question but that
Merrick and Dolata were engaged in core protected union activity when meeting with Johnson. It
is beyond cavil that a union steward’s grievance activity is concerted activity protected by Section 5
8(a)(1) and (3) of the Act. NLRB v. City Disposal Systems, Inc., 465 U.S. 422, 436 (“it would
make little sense for § 7 to cover an employee's conduct while negotiating a collective-bargaining
agreement, including a grievance mechanism by which to protect the rights created by the
agreement, but not to cover an employee's attempt to utilize that mechanism to enforce the
agreement”). As the Board explained in Roadmaster Corp., 288 NLRB 1195, 1197, enf’d. 874 10
F.2d 448 (7th Cir. 1989):
It is well settled that filing grievances under a collective-bargaining agreement
constitutes protected concerted activity. Union stewards filing and processing
grievances on behalf of other employees similarly enjoy the protection of the Act, 15
even if, while doing so, they exceed the bounds of contract language, unless the
excess is extraordinary, obnoxious, wholly unjustified, and departs from the res
gestae of the grievance procedure. [Footnotes and quotation omitted.]
The protected status of grievance activities extends to all manner of grievance-related 20
conduct, including that at issue here, the investigation of grievances. Dover Energy, Inc., 361
NLRB No. 48, slip op. at 2 (2014) (“Section 7 protects a union steward's activity in seeking
information for the purpose of investigating potential grievances under the terms of a collective-
bargaining agreement.” See also, cases cited therein); Postal Service, 252 NLRB 624, 624
(1980) (union steward’s effort to investigate grievances was within scope of her official union 25
functions and constituted protected concerted activity; discipline of her constituted 8(a)(3));
Consumers Power Co., 245 NLRB 183, 187 (1979) (steward unlawfully disciplined in violation of
Sec. 8(a)(3) for investigating a disagreement which had not yet become a formal grievance);
Postal Service, 360 NLRB No. 74, slip op. at 7 (2014) (“Indeed, the Board has long made clear
that the grievance activities of union stewards are especially important to the effectiveness of 30
contractual grievance-arbitration mechanisms”); Clara Barton, supra at 1033 (“It is axiomatic that
the processing of a grievance by a steward or a grievant is protected concerted activity. If done
pursuant to union responsibilities, it also amounts to union activity”).
As Dolata and Merrick were engaged in protected activity when meeting with Johnson, the 35
pertinent question is whether their conduct was so egregious as to cause them to lose the
protections of the Act, thus insulating the Respondent for liability for suspending them for
engaging in otherwise protected activity.
Given the credited evidence of what happened at this meeting, the answer is obvious. 40
Indeed, as to Merrick and Dolata’s meeting with Johnson, there is no credited record evidence of
anything that could even be described as misconduct. This was straightforward grievance
preparation work. Dolata and Merrick met with the coworker who had discovered and reported
the problems with Haas’s work. It would be highly unusual and arguably negligent for union
grievers investigating a grievance not to speak with a coworker so central to a grievance. As 45
discussed above, I reject and discredit the assertion by the Respondent that in this meeting
Merrick or Dolata engaged attempted to have Johnson give false testimony. Rather, Merrick and
Johnson asked him about the incident, and whether he would be willing to testify should the
matter go to arbitration. There is nothing here that even rises to the level of “misconduct.”
50
JD–64–14
14
Stripped of its discredited claims about what happened at the meeting, the gravamen of
the Respondent’s defense turns on the claim it was justified in suspending Dolata and Merrick
because during the meeting with them, Johnson subjectively felt harassed and/or was upset by
Merrick asking him if he would be a witness in an arbitration proceeding. The Respondent
stresses that Johnson has a heart condition. The Respondent points out that Dolata and Merrick 5
knew that Johnson would not want to talk with them. In the Respondent’s view, Johnson’s
extremely negative reaction—he was clearly upset and complained to management about Dolata
and Johnson talking to him—provides grounds for disciplining Dolata and Merrick under
Roemer’s antiharassment policy. This is a meritless argument.
10
As noted, as an objective matter, nothing in Dolata and Merrick’s conduct toward Johnson
removed their conduct from the ambit of protected activity. The evidence does not show any
threats, intimidation, profanity, or even hostility or raised voices directed towards Johnson. “The
Board has long held that legitimate managerial concerns to prevent harassment do not justify
policies that discourage the free exercise of Section 7 rights by subjecting employees to 15
investigation and possible discipline on the basis of the subjective reactions of others to their
protected activity.” Consolidated Diesel Co., 332 NLRB 1019, 1020 (2000), enf’d. 263 F.3d 345,
354 (4th Cir. 2001) (“There would be nothing left of § 7 rights if every time employees exercised
them in a way that was somehow offensive to someone, they were subject to coercive
proceedings. . . Such a wholly subjective notion of harassment is unknown to the Act.”); Blue 20
Chip Casino, 341 NLRB 548, 555 (2004) (“that the employees were subjectively annoyed or
angered by [coworker’s] conduct” in repeatedly requesting that they attend a meeting with him to
present a work grievance to management is irrelevant as “the standard for assessing whether
conduct remains protected under the Act is an objective standard. . . . The Act designs a system
where . . . it is necessary that discussion among employees and attempts to persuade be robust 25
and vigorous. A necessary consequence of such robust discussion is that some employees may
feel annoyed or otherwise upset by the efforts to persuade them. But employees may have to
endure some level of annoyance if the Act’s goals are to be achieved”).
Dolata and Merrick took no action to compel Johnson to speak with them. Johnson was 30
and is free not cooperate with the Union. He was free to complain to management. But
management was not free to punish Dolata or Merrick for noncoercively talking to Johnson about
the Haas grievance, even if it upset Johnson, and even if the Respondent insisted on defining
Merrick and Dolata’s conduct as “bullying” or “harassment.” In this regard, I note that, of course,
the Respondent’s claim that Dolata and Merrick’s conduct violated the Respondent’s Threats and 35
Violence policy is irrelevant in light of the above discussion. The Respondent cannot enforce a
rule that permits an employee to be disciplined for activities protected by the Act. NLRB v.
Washington Aluminum Co., 370 U.S. 9, 16–17 (1962); Consumer Power, 282 NLRB 130, 132
(1986) ("Respondent's disciplinary policy cannot, at any rate, lawfully 'mandat[e]' that Knight be
discharged in violation of [the Act]”); Consolidated Diesel, 332 NLRB 1020.1640

16I note that the Respondent explained at trial, and stress in their brief, that Johnson has a
heart ailment. However, by no evidence was Johnson forced to speak to Merrick or Dolata. By
no evidence does Johnson’s heart condition render him so fragile that employees cannot speak
to him about a grievance while he takes a break before work. Johnson is a longtime employee
and union member and was intimately involved in the events that led to Haas being disciplined.
He testified without incident at the unfair labor practice hearing. (He may not have wanted to
testify, but that is a different issue.) For Roemer to attempt to use Johnson’s medical condition as
grounds to justify punishing Dolata and Merrick for talking to him about the Haas grievance is not
just far-fetched, but unseemly. Merrick and Dolata had every reason and right to approach
Johnson before work to discuss the matter with him and ask him to testify in an arbitration.
JD–64–14
15
The Respondent’s brief also contends—almost exclusively based on non-record
assertions—that it was free to discipline Dolata and Merrick because their grievance meeting with
Johnson was in support of a frivolous grievance. I reject this contention. The merits of the
grievance are a matter for an arbitrator, not a basis for the employer to dole out discipline to
employees engaged in protected activity. Caterpillar Tractor Co., 242 NLRB 523, 530 (1979) 5
(“Contrary to Respondent's position, the protection of the Act does not depend on the employer's
or the Board's appraisal of the merits of the grievance, such as whether the contract disposes of
the question raised in the grievance. The merits of the grievance are irrelevant in determining the
question of whether a right is protected under the Act”); Jacobs Transfer Inc., 201 NLRB 210, 220
(1973) (discharge motivated by belief that griever was filing baseless grievances to further 10
political ambitions within union violates Section 8(a)(3)).
The Respondent unlawfully suspended Dolata and Merrick for one-day for their protected
union activity.
15
The three-day suspension given to Merrick
The Respondent also gave Merrick an additional three-day suspension. After angrily
exiting the meeting with Fraley and Johnson, Merrick walked through the production area stating
(in reference to Johnson) that he was a “backstabber” and not to be trusted. The Respondent 20
writes in its brief that it disciplined Merrick because, based on learning about these comments, it
“made the reasonable determination that bullying was going on and that discipline was
appropriate.” (R. Br. at 13.)
Merrick’s comments were part of the rest gestae of his protected conduct. Merrick’s 25
comments were about, and were a direct outgrowth and result of Johnson reporting the Union’s
grievance investigation efforts to management. Of course, Johnson was within his rights to do
this, but in the most fundamental sense, the grievance and arbitration process is an aspect of
collective bargaining,17 and therefore, a process for which management and labor prepare with an
expectation that their investigations and strategies will not be exposed.18 Thus, putting aside for 30
the moment the manner of Merrick’s comments, they were wholly related to Dolata and Merrick’s
protected activity. Indeed, not only were Merrick’s statements directly related to his and Dolata’s
protected activity, his comments were a continuation of this protected activity. Merrick was
conveying to other employees that Johnson was someone who would go to management in
response to a discussion of his involvement in a union’s grievance. The Board should have no 35
view on whether Johnson should have done this, but equally the Board should have no view on
Merrick’s decision to convey to unit employees his displeasure with Johnson. It is all protected
union activity.
___________________________
17Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578, 581 (1960) (“The grievance
procedure is, in other words, part of the continuous collective bargaining process. . . . [A]rbitration
of labor disputes under collective bargaining agreements is part and parcel of the collective
bargaining process itself");
18”If collective bargaining is to work, the parties must be able to formulate their positions and
devise their strategies without fear of exposure. This necessity is so self-evident as apparently
never to have been questioned.” Berbiglia, Inc., 233 NLRB 1476, 1495 (1977), cited in Patrick
Cudahy, Inc., 288 NLRB 968, 971 (1988).
JD–64–14
16
Moreover, in considering all the circumstances, it must be remembered that Merrick’s
comments were inextricably linked with—in a very real sense provoked by—Fraley’s directive that
the Union leave Johnson out of its investigation. Although not alleged as a violation, there is no
doubt that it is inappropriate, at best, for management to intervene in the union’s grievance
preparation by forbidding the union representative from speaking with a unit employee in a 5
nonwork area before work. That it provoked Merrick’s criticism of Johnson is clear.
Thus, Merrick’s message to other employees squarely implicated protected union activity.
The remaining question is whether the manner in which he made these comments to other
employees was so egregious that he lost the protection of the Act. 10
That is clearly not the case. Merrick’s comments contained no threats, no profanity, no
abusiveness or violence. He did not confront Johnson, physically, or otherwise, or make his
comments to his face. There was no interference with production shown. There is no suggestion
that Merrick’s comments threatened order or discipline in the facility. Since his comments, 15
Merrick and Johnson have worked together without incident.
In view of all this, Merrick’s comments hardly qualify as the type of comments that cause
an employee to lose the protection of the Act. See, by way of comparison, the worse but
protected conduct in, e.g., Nor-Cal Beverage Co., 330 NLRB 610 (2000) (employer violated 20
Section 8(a)(3) by disciplining employee pursuant to anti-harassment policy for calling another
employee “a scab” to his face during protected activity); Tilford Contractors, 317 NLRB 68, 69
(1995) (“It is well established that some profanity and even defiance must be tolerated during
confrontations over contractual rights”; union steward did not lose protection of the Act for
confronting employee over concern that contract was being breached, threatening to file internal 25
union charges against him, and telling him “You’ve got no goddamn business being here,” and
“The best thing you could do is get the hell away from us”); Postal Service, 250 NLRB 4 (1980)
(employer violated the Act by disciplining union griever who called supervisor “stupid ass” during
discussion of possible grievance).
30
Finally, I note that Board precedent has left unclear whether a case like this one should be
analyzed under the standard set forth in Atlantic Steel, 245 NLRB 814 (1979), or, as I have done,
based on the totality of circumstances. In a case now vacated and remanded in light of NLRB v.
Noel Canning, __ U.S. __, 134 S.Ct. 2550 (2014), the Board “acknowledge[d] . . . that Board
precedent does not firmly establish” when a case “should be analyzed under Atlantic Steel or 35
under a totality-of-circumstances approach” and declined to resolve the matter. Fresenius USA
Mfg., 358 NLRB No. 138, slip op. at 5–6 fn. 8 (2012). More recently, and carrying the force of
precedent, the Board held the Atlantic Steel framework “not well-suited” to address the protected
nature of an employees’ off-duty use of social media to make comments to other employees or
third parties. Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 3 (2014). In doing so 40
the Board emphasized that “[t]ypically, the Board has applied the Atlantic Steel factors to analyze
whether direct communications, face-to-face in the workplace, between an employee and a
manager or supervisor constituted conduct so opprobrious that the employee lost the protection
of the Act.” Id., slip op. at 4.
45
In the instant case, the alleged “misconduct” involves employee conduct toward another
coworker, not toward a supervisor and management, rendering this not a “typical” Atlantic Steel
case. However, were I to apply the factors and standards of Atlantic Steel, I would reach the
same result as I have reached applying the totality-of-circumstances. I stress, again, that in the
first incident (the meeting between Johnson, Merrick, and Dolata) there was nothing that could 50
even be called misconduct, or an outburst of any kind, making application of the Atlantic Steel
JD–64–14
17
factors unnecessary. As to Merrick’s calling Johnson a backstabber and someone not to be
trusted, the first Atlantic Steel factor looks to the location of the incident. Here, the dispute
occurred in the shipping area of the production facility but was not loud enough to be heard in
Fraley’s office and had no effect on production. Moreover, the Board’s chief reasons for this
factor—that an outburst against a supervisor (the “typical” Atlantic Steel scenario) would tend to 5
undermine the authority of the supervisor (see, e.g., DaimlerChrysler Corp., 344 NLRB 1324
(2005)—is of no application here, as Merrick’s comments were not directed toward any
supervisor, and, as far as the record reveals, no supervisor was involved or present when Merrick
made his comments. Thus, this factor must tend to favor protection under the Act. The subject
matter of the comments is the second Atlantic Steel factor. Here, as discussed above, the 10
subject matter related to Merrick’s complaints about Johnson reporting to management that the
union officials wanted him to testify, a subject that weighs in favor of continued protection of the
Act. The third Atlantic Steel factor is the nature of the outburst. Merrick’s outburst was obviously
impulsive, and not premeditated, which weighs in favor of continued protection. Kiewit Power
Constructor, 355 NLRB 708, 710 (2010), enf’d. 652 F.2d 22 (D.C. Cir. 2011) (observing that the 15
employee's conduct consisted of a brief, verbal outburst in finding factor weighed in favor of
protection). Notably, there was no threat, no violence, and no aggression directed at any person
by Merrick. Finally, the fourth Atlantic Steel factor concerns whether the outburst was provoked
in any way by an employer unfair labor practice. As noted above, it is clearly improper for
managers to direct union representatives not to speak to union members. While not alleged as 20
an unfair labor practice, it was a provocation, and Merrick took it as such. This Atlantic Steel
factor favors continued protection under the Act. Network Dynamics Cabling, Inc., 351 NLRB
1423, 1429 (2007) (provocation by employer’s director of operations found pursuant to Atlantic
Steel analysis although the supervisor’s conduct was not alleged as an unfair labor practice). In
short, nothing in the analysis of Atlantic Steel leads me to conclude that Merrick’s comments 25
about Johnson should deprive him of protection of the Act. Were I to apply Atlantic Steel, I would
find that Merrick did not lose the protection of the Act.
Whatever the framework of analysis, I am unaware of any case in which such a brief,
nonthreatening, nonprofane statement of negative opinion about a coworker and his willingness 30
or unwillingness to be involved in union activity led to the loss of the Act's protection. The
Respondent’s discipline of Merrick for criticizing Johnson for Johnson’s reaction to efforts to
involve Johnson in a grievance investigation violates the Act.
35
CONCLUSIONS OF LAW
1. The Respondent Roemer Industries Inc. is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
40
2. The Charging Party the United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union, AFL–CIO, CLC (Union) is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily disciplining 45
Geraldine Dolata for engaging in concerted and protected union activity.
4. The Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily disciplining
Ronald Merrick for engaging in concerted and protected union activity.
50
JD–64–14
18
5. The unfair labor practices committed by Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
5
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist there from and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(3) and (1) of the act by 10
discriminatorily suspending employees Geraldine Dolata and Ronald Merrick, the Respondent
shall be ordered make Dolata and Merrick whole for any loss of earnings and other benefits
suffered as a result of the unlawful actions against them. Backpay shall be computed in
accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interested at the rate prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in 15
Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent shall compensate
Dolata and Merrick for the adverse tax consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Social Security Administration allocating the backpay award to
the appropriate calendar quarters. The Respondent shall also be required to remove from its files
any references to the unlawful suspensions of Dolata and Merrick, and to notify them in writing 20
that this has been done and that the suspensions will not be used against them in any way.
The Respondent shall further be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed to employees by Section 7 of the Act.
25
The Respondent shall post an appropriate informational notice, as described in the
attached appendix. This notice shall be posted in the Employer’s facility or wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. 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 30
means, if the Respondent customarily communicates with its employees by such means. In the
event that, during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since September 12, 2013. When the notice is issued to the 35
Employer, it shall sign it or otherwise notify Region 8 of the Board what action it will take with
respect to this decision.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1940

19If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
JD–64–14
19
ORDER
The Respondent Roemer Industries, Inc., Masury, Ohio, its officers, agents, successors,
and assigns, shall
5
1. Cease and desist from:
(a) Suspending or otherwise discriminating against employees for engaging in union
activities protected by the National Labor Relations Act (Act).
10
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
15
(a) Make Geraldine Dolata and Ronald Merrick whole for any loss of earnings and
other benefits suffered as a result of the unlawful discrimination against them, in
the manner set forth in the remedy section of this decision.
(b) Compensate Geraldine Dolata and Ronald Merrick for the adverse tax 20
consequences, if any, of receiving a lump-sum backpay award, and file a report
with the Social Security Administration allocating the backpay award to the
appropriate calendar quarters.
(c) Within 14 days from the date of this Order, remove from its files any reference to 25
the unlawful suspensions of Geraldine Dolata and Ronald Merrick, and within 3
days thereafter, notify Dolata and Merrick in writing that this has been done and
that the suspensions will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 30
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.35
(e) Within 14 days after service by the Region, post at its facility in Masury, Ohio,
copies of the attached notice marked "Appendix." 20 Copies of the notice, on forms
provided by the Regional Director for Region 8, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and 40
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. 45

20If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
JD–64–14
20
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and 5
former employees employed by the Respondent at any time since September 12,
2013.
(f) Within 21 days after service by the Region, file with the Regional Director for
Region 8 a sworn certification of a responsible official on a form provided by the 10
Region attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. November 5, 2014 15

___________________20
David I. Goldman
U.S. Administrative Law Judge
JD–64–14
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 suspend or otherwise discriminate against any of you for engaging in union
activities protected by the National Labor Relations Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL make Geraldine Dolata and Ronald Merrick whole for any loss of earnings and other
benefits suffered as a result of the unlawful discrimination against them.
WE WILL remove from our files any reference to the unlawful suspensions of Geraldine Dolata
and Ronald Merrick, and within 3 days thereafter, notify Dolata and Merrick in writing that this has
been done and that the suspensions will not be used against them in any way.
ROEMER INDUSTRIES, INC.
(Employer)
Dated By
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under the
Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s Regional
Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Room 1695, Cleveland, OH 44199-2086
(216) 522-3715, Hours: 8:15 a.m. to 4:45 p.m.
JD–64–14
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/08-CA-124110 or by using the QR code below.
Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th
Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3740.