Occurs when the pay given to new hires is higher than the compensation provided to senior employees.

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On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following findings of fact and conclusions of law.

I. JURISDICTION The Respondent, a corporation, designs and manufactures machinery at its facility in Bay City, Michigan, where it annually derives gross revenues in excess of $500,000 and purchases and receives goods valued in excess of $50,000 directly from points outside the State of Michigan. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES

ticipated in the negotiation of seven contracts between the Union and the Respondent. Petro took part in negotiating the last two contracts, and Nicoson had taken part in the negotiations for three prior contracts.

B. Bargaining Sessions In February 2004, prior to the start of formal negotiations, Nicoson warned Petro that because of the Respondent's “financial condition,” it was going to "have to have some serious concessions” from employees in order “to keep the Company as an ongoing business.” Petro responded that Nicoson should "get with the sunion) committee prior to the start of negotiations and discuss the matter with them,” but Nicoson did not do that. The first official bargaining session was held on May 11 and started at 9 a.m. At that session, the Respondent distributed a written statement, which Nicoson read aloud. In the statement, the Respondent claimed that cuts were necessary to "give us the opportunity to capture new business and continue on as an ongoing concern.” The Respondent stated that the employees were “going to have to make sacrifices” and that salaried employees had already done so. Sales revenue, the Respondent asserted, had decreased from $18 million in 2001, to $8 million in 2002 and $7.5 million in 2003." A table was attached to the opening statement, which, although somewhat unclear, appears to state that the Respondent's sales revenue for the first 4 months of 2004 was $4,122,000. The table also states that the Respondent had a backlog-i.e., orders that it had secured and was currently working on-of $4,318,000. That figure exceeds the backlog listed for each of the previous 3 years. In the opening statement, the Respondent predicted that it would "break even for the year if it could obtain $2 million worth of additional business in 2004. According to a pie chart circulated by the Respondent, in 76 percent of instances when the Respondent lost an order to another company the deciding factor was the competitor's lower price. The written materials did not divulge whether the Respondent's profits had declined during the years of decreasing sales volume.

After going over this information, the Respondent presented an initial contract proposal. When the document was distributed, Wright warned the union committee that the proposal was "at best ... ugly.” Wright acknowledged that the Company's proposal called for “very deep cuts, rollbacks, givebacks ... pretty severe concessions,” but he asserted that the Respondent "needed these, to have a chance, for a future.” The proposal distributed that day called for a wide range of cuts, including: reducing wages for all unit employees by 12 percent--from an average of $18.82 per hour to an average of $16.56 per hourwith subsequent raises "to be determined”; “freezing" the pen

A. Background The Union has been the collective-bargaining representative of the Respondent's hourly employees for at least 30 years. During that time, the Union and the Respondent have entered into successive collective-bargaining agreements, the most recent of which expired by its terms at midnight on June 10, 2004. Five hours before the contract was set to expire, the Respondent announced that a bargaining impasse had been reached and presented the Union, for the first time, with a final proposal that the Company stated it would implement the following day. The Respondent's final proposal made deep cuts in employees' wages, pension plan, health insurance, and numerous other benefits. At the time of the negotiations, there were approximately 40 bargaining unit members, of whom 25 to 28 were actively employed.

Prior to the Respondent's assertion of impasse, the parties had met seven times over the course of a 1-month period to bargain for a new agreement. The Union's bargaining committee consisted of Elmer Kostal (local executive president), Don Petro (international union representative), Jeffrey Ryan (local vice president and chairperson), Scott Dennis (committee member), Gary Letzgus (committee member), Bob Bean (committee member) and Dave Mance (committee member). On June 10, John Van Hurk joined as a temporary committee member after Bean and Mance retired. The Respondent was represented at the negotiations by Jim Nicoson (general manager), Scott Wright (human resources director), and Ron Conklin (operations manager)." Among these participants, were several who had significant prior experience negotiating contracts between the Union and the Respondent. Kostal had par

* Later in the negotiations, probably on June 10, Nicoson presented a table of sales revenue figures for each year from 1980 to 2000. According to the chart, the Respondent's sales revenues ranged during that period from a high of $45,267,000 in 1991, to a low of $12,746,000 in 1987. Nicoson presented this information as part of an argument to the Union that "you cannot take a $20 million-a-year company with an overhead structure and stick it in an $8 million-a-year company and exist.” The record also shows that over the course of 20 years the size of the bargaining unit had shrunk from between 130 and 150 members to about 40 members.

present its case, I concluded that permitting the Respondent to amend its answer would not unduly prejudice the General Counsel. The Union represents the following employees of the Respondent:

All full-time and regular part-time hourly employees employed by the Respondent at its Bay City facility, excluding salaried employees, receiving department employees, plant

protection, foreman, and supervisors as defined in the Act. The parties agree that Nicoson, Wright, and Conklin are supervisors and agents of the Company.

would not provide the Union with the financial information requested by the union committee. Despite this putative recantation of its poverty plea, the Respondent continued to indicate that it could not survive without the concessions it had proposed. Throughout the negotiations, the union committee orally requested that the Respondent provide documentation for its financial claims.

The parties met for a second negotiating session at 9 a.m. on May 20. At that meeting, the Union presented the initial proposal that it had prepared prior to the May 11 meeting, but which it had not previously shown to the Respondent. The Union recognized that it was seeking far more than what the Respondent had offered on May 11, but the union committee decided to present its original proposal because the Respondent had stated that it was making a profit, recanted its claim of poverty, and refused the Union's requests to review the Company's financial books and extend the current contract. The Union's initial economic proposals included: increasing the wages of all employees by five percent annually; increasing the monthly pension for retirees by $1 for every year of service; reducing the pension plan penalty for early retirement; increasing the size of the supplemental pension payments; changing the dental insurance coverage to pay 100 percent of the cost of covered procedures (it had been paying 50 or 75 percent of dental costs depending on the procedure); increasing the amount of weekly sickness/accident payments; eliminating the employees' copayment for medical expenses covered by the health insurance; increasing the hourly wage premium paid for night-shift work, increasing the size of the employer-subsidized “sub-fund” for supplemental payments to unit employees receiving unemployment compensation; adding three paid employee holidays; increasing the number of vacation days for employees with 30 or more years of seniority; increasing the duration of continuing health insurance coverage for laid-off employees from 2 months to 4 months; and, increasing employees' individual life insurance coverage from $27,000 to $35,000.

The Union also presented noneconomic proposals, which included: expanding the geographic reach of the contract's accretion provision; allowing the Union to conduct safety tours before the monthly Union-Respondent meetings, rather than after those meetings; limiting extensions of the employee probationary period to one, 60-day, period; reducing the number of hours per week that the Respondent could assign an employee to work out of his or her classification during a layoff; requiring that employees recalled from layoff be allowed to work for a minimum of 40 hours; requiring the Respondent to create a posting that would identify the supervisor for each employee; requiring that the Respondent provide layoff notices to the Union 2 hours before issuance; requiring the Union's agreement before using employees from other departments or outside help to perform emergency work; prohibiting the Respondent from

sion plan—which meant that current employees would receive no credit for future years of service, and new employees would be excluded from the plan; eliminating supplemental pension payments or “bridge money" for retirees; eliminating employerpaid dental insurance and sickness/accident insurance; switching to a less generous health insurance plan; requiring employees to pay 20 percent of their health insurance premium costs (in the past they had contributed a far smaller portion); capping the Respondent's monthly, per-employee, contributions to health insurance premiums at specific dollar amounts; eliminating the employer-subsidized “sub fund” that provided payments to laid-off unit members who were collecting unemployment compensation; reducing by three the number of paid employee holidays; reducing the number of vacation days for employees with 15 or more years of seniority; and, reducing the extent to which various benefits were available to laid-off, sick, and injured employees. The Respondent also proposed to cut the number of union-shop committee members from six to three and to eliminate all bargaining unit personnel from the service and test department.

The union committee caucused to review the Respondent's proposed cuts. When they returned to the meeting, Petro told the Respondent's representatives that the cuts they were proposing were the most comprehensive take-away proposals that [he] had ever seen, in all [his) years of negotiating.” Petro testified that before he could agree to the concessions he would need additional information. He asked the Respondent whether it was pleading poverty and Wright answered, "yes.” Petro stated that in light of the Respondent's poverty plea, the Union would want to see the Respondent's books. Wright stated that he would look into providing the Union such access. Petro also asked the Respondent to agree to an extension of the current contract past the expiration date, given that it would take the Union's research department some time to evaluate the financial information relevant to the poverty plea. The Respondent denied the request for an extension.

Although the Union had prepared a proposal of its own in advance of the May 11 meeting, it did not present that proposal to the Respondent at that time. Given the Respondent's poverty plea and the extreme cuts sought by the Respondent, the union committee developed doubts about the viability of its own proposal, which called for annual wage increases of five percent and various other enhancements of benefits. Kostal testified that the Union committee needed information from the Union's research department regarding the Respondent's poverty plea in order to assess whether the Union's contract proposal should be changed.

The May 11 meeting concluded at around lunchtime. Later that day, Ryan submitted a list to Conklin of the types of information that, in Ryan's view, the Union was entitled to in light of the Respondent's poverty plea. Conklin responded that he would not "be needing” the request because the Company's legal counsel had advised him that the Respondent “made a few dollars" and therefore "wouldn't be claiming poverty.” Similarly, Wright called Petro and left a voice message advising him that, after discussing the matter with legal counsel, he realized that he had made an error in saying that the Respondent was pleading poverty. As a result, Wright said, the Respondent

For example, at the June 9 meeting, Nicoson stated that "we are not competitive, need these concessions to be an ongoing business." At the June 10 meeting, he argued that the Respondent could not “exist" without changing its "overhead structure” to reflect the decreased volume of its business.

using subcontractors if there were laid-off employees who had the skills to do the work; eliminating a contract article that provided for the special treatment of employees who the Respondent designated as department "leaders"; assigning a union machinist to operate the lab machine shop; removing language that provided John Wilkerson with a wage above his classification maximum, and requiring the resolution of all grievances.

Kostal began to explain the Union's proposal to the Respondent's representatives. Nicoson admits that he was irritated by the Union's proposal, and, according to union committee members, this irritation was apparent in Nicoson’s manner. Nicoson commented that “evidently on [May] eleventh the committee was not listening to what I was saying.” Petro said that the union committee had listened to the Respondent's proposal and now the Respondent should listen to the Union's proposal. Petro described the Union's proposal as a “starting point” and said that “hopefully they could "create some good faith bargaining and meet somewhere in the middle.” According to Ryan, the union committee members were hoping to settle for smaller annual raises that would be enough to keep pace with inflation. The union committee explained that its proposal was created based on input from the union's members, experience from past contracts, and “the economy in general.”

At the May 20 meeting, Nicoson provided the Union with a document setting forth details of specific instances in 2003 when he said the Respondent had lost orders because its prices were higher than those of its competitors. Nicoson said that he did not know whether the Respondent would have actually obtained any of these lost orders if it had been operating under the concessions the Company was seeking from the Union, but that he believed such concessions would have made the Respondent more price competitive. Nicoson also provided a summary table entitled "2004 New Business Status” that, as with a number of summaries the Respondent gave to the Union, is not easy to interpret in some respects. It states that the Respondent had obtained new machine orders in January, February, and May of 2004, but not in March of April. The total for those orders is given as $1,457,000. Nicoson stated that the Respondent did not, at that time, have any orders to work on after September 2004.

At Petro's suggestion, the parties got the negotiation “ball rolling” by considering noneconomic issues. By the end of the May 20 meeting, the parties had tentatively agreed that the probationary period would be increased from 60 days to 120 days; safety tours would be conducted before, rather than after, the monthly meetings; the language providing a special rate of pay for John Wilkerson would be deleted from the agreement; and, all grievances would be resolved before negotiations were completed. The Union committee also agreed to withdraw a number of its other noneconomic proposals. This meeting ended at about 4 p.m.

The third bargaining session was held on May 26 and lasted, in Nicoson's words, "probably a couple of hours.” The parties began by signing a tentative agreement regarding the issues

they had resolved at the May 20 meeting. The Union also said it would try to find ways to create a separate department for parts orders and to limit the number of union investigative committee people who would work on a grievance at one time

- both of which were changes sought by the Respondent. The Respondent's team complained about the rising cost of health insurance and the union committee acknowledged that the premiums were "getting out of hand.” The Respondent stated that when bidding on jobs it had to price the union employees at $59.95 an hour, of which it claimed about $40 was attributable to wages and benefits under the contract. The Union disagreed with, or did not understand, the method the Respondent used to calculate these amounts, and argued that a much smaller amount was attributable to employees' contractual wages and benefits. Nicoson agreed to provide the Union with a break

a down of the way employees' wages and benefits under the contract contributed to the hourly figure used in bids. During the May 26 session, Petro renewed his request that the Respondent agree to extend the current contract, stating that there was a lot of information the Union needed to analyze. Wright denied the request. He stated that they "needed to work toward getting the agreement ... done” and that "[t]here was an issue about the plant's future.”

The Union and the Respondent had their fourth meeting on June 3. Nicoson provided the Union with a table that purportedly showed how much the employees' wages and benefits under the contract contributed to the hourly cost the Company attributed to union employees when bidding on new work. The table also showed what those figures would be under the concessions proposed by the Respondent. According to the table, the concessions proposed by the Respondent would lower the hourly cost of employees' wages and benefits from $41.87 per hour to $22.50 per hour--a reduction of about 46 percent. The table indicated that the Respondent's proposed 12-percent wage cut would reduce the average hourly wage of unit employees from $18.82 to $16.56 and that the Respondent's health insurance proposal would reduce the hourly, per-employee cost for that benefit from $5.20 to $2.46. According to the Respondent's table, the biggest savings of all would come from the Respondent's proposal to freeze the pension and eliminate the supplemental pension payments. The table indicated that this change would reduce the hourly, per-employee cost of the pension from $12.27 to zero. The union committee questioned whether the pension proposals would really result in such substantial savings. Nicoson answered that the $12.27 figure “can be any number we want it to be”-a response that Petro sayş "caused a great deal of confusion” for the union committee.

? Petro testified that Nicoson made the statement that the $12.27 figure could be whatever number the Respondent wanted it to be. His testimony on this subject was given in a clear and certain matter, and his claim that Nicoson's statement “caused ... confusion" is consistent with his subsequent actions in requesting pension information from the Respondent. When the Respondent's counsel asked Nicoson whether he made the statement, he responded, “No, I do not believe that I said that.” Based on the demeanor and testimony of the witnesses, I credit Petro's account over Nicoson's somewhat less than emphatic denial. Moreover, the testimony that Nicoson made the statement was consistent with the general impression, given by the record as a whole, that

At trial, Nicoson also conceded that the Respondent's pension proposal would not really have reduced the costs of the plan to "zero," and that he used that figure only because the actuary had not yet told him what the new pension benefit would cost.

At this meeting, the union committee proposed a two-tier wage system under which incumbent employees would retain their current level of compensation, but new hires would be subject to a lower pay scale, along the lines of the one proposed by the Respondent Union negotiators believed that the Respondent would soon be hiring a significant number of new employees and therefore would realize savings from the twotier system in the near future. The Company's team responded that the two-tier approach would not meet the Respondent's need for immediate reductions in its costs. During negotiations the Union also suggested that the Respondent might realize savings by closing one or more of the buildings at the facility given the reduced volume of its business. The Company did not respond to that proposal.

The parties met for a fifth time on June 7, in a session that lasted 5 or 6 hours. At that meeting the Union committee presented a new comprehensive proposal in which it made significant movement towards the Respondent's position on a wide range of bargaining subjects. Whereas the Union had originally sought 5-percent annual wage increases, it now proposed a $1per-hour wage reduction for incumbent employees, with no increases for 4 years. This represented over a 5-percent cut in the unit's current average wage of $18.82 per hour. The Union also offered to apply wage reductions of $4 per hour to all new hires, which was a larger cut than the Respondent had proposed. The union committee had previously been seeking enhancement of the existing health plan, but now it agreed to the Respondent's proposal that the old plan be abandoned and also accepted that the Respondent's monthly per-employee contribution to premiums would be capped.The Union had previously been seeking an increase in the size of sickness and accident payments, but now it withdrew that request and agreed to cut the period during which such benefits would be paid from 52 weeks to 26 weeks. Whereas the Union had been seeking an increase in the amount of the supplemental pension payments, it now withdrew that request and offered to eliminate supplemental payments entirely after January 1, 2008. The Union had been seeking increases in the monthly pension for retirees, but it withdrew that request and proposed that new employees would only be eligible for a 401(k) plan, not for the pension plan. The Union originally sought an increase in the extent to which the employer-provided insurance covered dental procedures, but now it withdrew that request and agreed to the Respondent's proposal to eliminate employer-provided dental insurance entirely. The Union had been seeking to increase the

number of paid employee holidays by three, but now it agreed to decrease the number of paid employee holidays by three.

In the June 7 proposal, the Union also accepted outright a number of the Respondent's other proposals for benefit reductions. These reductions included the elimination of the employer-subsidized “sub fund” for employees collecting unemployment compensation and the elimination of the provision permitting employees to carry over 5 vacation days per year. Although the Union did not agree to the Respondent's proposal to eliminate bargaining unit employees from the service and test department, it did agree to the proposal to excise all contract sections that provided separate benefits for unit employees working in that department. In its new proposal the Union also deleted many of its own requests for increases in benefits. Among the requests that the Union deleted were: a reduction in the penalty for early retirement; an increase in the number of vacations days accrued by senior employees; an increase in the duration of continuing health insurance coverage for laid-off employees, an increase in night-shift wage premium; and, an increase in the amount of life insurance coverage provided by the Respondent. The Union also withdrew almost all of its noneconomic proposals.

After the Union finished explaining the proposal, Nicoson responded that the cuts the Union was offering were not “deep enough.” He stated that the two-tier wage reduction offered by the union committee would not “help” the Respondent, and opined that even the deeper concessions proposed by the Respondent might “not be enough.” In response to the Union's June 7 concessions, the Respondent made no reciprocal compromises at all.

The record indicates that from May 11 to June 7 the Respondent provided the union committee with a number of documents that were prepared for the negotiations and in which the Respondent summarized aspects of its financial information; however, the Respondent generally did not provide the Union with the actual business records that contained the information underlying the representations in those summary documents. Moreover, the Respondent had not opened its financial books to the Union as requested by Petro, or provided the information set forth in the list that Ryan presented to Conklin on May 11. At the meeting on June 7, Petro made a verbal request for specific types of information that would allow the Union to evaluate the Respondent’s proposal to freeze the pension and eliminate the supplemental pension payments, as well as to formulate the Union's own pension proposals. Petro asked for pension documents (referred to by the parties as “5500 forms”), actuarial reports, and census data. He stated that he needed to

Nicoson was irritated by the negotiations and, in particular, by the Union's questioning of the justifications he had offered for the Respondent's proposed cuts. See also footnote 13, inf

The Union proposed premium caps that were higher than those sought by the Respondent. The Respondent set the caps at $213.92, $475.88, and $566.75 depending on whether the coverage was for an individual, two persons, or a whole family. The Union proposed caps of $250, $550, and $650. The Union also proposed that those caps be raised by 6 percent each year.

Petro, Ryan, Letzgus, and Dennis (Kostal and Van Hurk did not participate in the June 7 meeting, and retirees Bean and Mance were not called as witnesses) all testified that Petro orally requested census data from the Respondent's representatives. Nicoson and Wright (Conklin was not called as a witness), on the other hand, denied that Petro asked for the census data. Also see, footnote 1, supra. Both sets of witnesses testified confidently regarding their contrary recollections. I resolve this credibility question in favor of the union witnesses based largely on the letter that Wright wrote when he transferred the census data to Petro over 3 months later on September 29, 2004. The body of Wright's letter to Petro states in its entirety: “Please note the enclosed

send the information to a person in the Union's social security department for analysis.

The parties were scheduled to have their sixth meeting on June 8, but the Respondent cancelled that meeting, stating that it was not ready. The parties met the following day, June 9, for between 5 and 6 hours. During this meeting Nicoson reiterated the Respondent's position that “we are not price competitive, need these concessions, to be an ongoing business.” Nicoson stated that the Respondent had no future business and that while it had two new pending orders, neither had been confirmed as of yet. Wright presented the union committee with an envelope that contained some, but not all, of the documents Petro requested on June 7. Notably absent from the envelope was the census data. However, at that meeting, Petro did not review the contents of the envelope or inform the Respondent's representatives that any information was missing. Neither the Union nor the Respondent meaningfully changed their bargaining positions during the June 9 session. Nicoson expressed the view that the parties were not close to an agreement.

The parties met for the seventh time at 9 a.m. on June 10— the day the current contract was set to expire. At the start of the session, Nicoson stated that the parties had to get an agreement by the end of the day. The Respondent presented a summary document-prepared for the negotiations—which set forth the costs of a number of pension plan options. According to the document, the Respondent would save $295,089 in 2004 by implementing its proposal to eliminate the pension supplement (bridge money) and freeze the pension plan, assuming that the pension eligible employees stayed employed. The document states that the Respondent would save $169,632 in 2004 if, instead, it eliminated the pension supplement and froze the pension plan only for those employees who were not eligible for retirement, and all the retirement-eligible employees retired immediately with the pension supplement. The document also appears to state that the Respondent would save $25,633 in 2004 if it eliminated the supplement, but did not freeze the pension plan. A number of the entries in this summary docu

ment are difficult to interpret, and, indeed, the union committee had trouble understanding them. The Respondent arranged for the parties to discuss the matter by telephone with the actuary who had prepared the document. After this conversation, which lasted approximately 25 minutes, the union committee continued to have questions about how the Respondent was calculating the costs associated with various pension plan options. In particular, the union committee wanted to know how much it would cost to keep the supplement in place for the unit members who remained, given that so many employees had recently retired. The Respondent's team said it would provide that information. Petro requested an extension in order to review information the Respondent had provided, but, once again, the Respondent's team denied the request and said that the parties had until midnight to reach agreement. Nicoson stated that the Respondent had “pending orders that were out there," and it was "very detrimental to have our customers be aware that you do not have an agreement,” because "[t]hey may take their business elsewhere."

The union committee, in the absence of a counter offer to its June 7 proposal, tried to draft a new proposal of its own. The Union committee caucused to prepare a proposal, but the members believed they were hampered by the lack of reliable information from the Respondent. At approximately 2:15 p.m., Nicoson and Wright came to the room where the Union committee was

sing, and asked for the Union's new proposal Petro stated that the union committee members were frustrated because they were not able to make a good decision without the information they had sought. Nicoson responded that the Union did not have any outstanding information requests, and Petro maintained that the Union did have such requests. Petro asked what the Respondent intended to do if the Union was unable to continue making proposals until it had gotten, and processed, the necessary information. Wright answered that the Respondent would implement its last proposal at midnight

. Although the Respondent had previously stated that June 10 was a deadline for concluding a new contract, this was the first time in the negotiations that the Respondent explicitly stated that it would unilaterally implement its proposal or indicated that it thought the parties might be approaching impasse. According to Nicoson, these possibilities had not previously been raised because, as of the start of the June 10 meeting, he believed the parties could reach an agreement.

In

response Wright's statement that the Respondent would implement its proposal, Petro said it would be difficult to make much progress that day regarding the issues dividing the parties because even after the union committee obtained the information it needed from the Respondent, it would have to wait for the Union's social security department to analyze that information.

After this encounter, the union committee was confronted with the reality that the Respondent appeared prepared to unilaterally implement terms without either compromising from its initial “ugly" proposal or providing documentation to show that the cuts were justified by financial necessity, or even allowing the Union the time it needed to analyze some of the information that had already been provided. The union committee decided to make a written information request at that time because it believed it needed to document the requests in light of the Re

pension census information, which I missed copying, back in June.” Since the documents that Wright produced on June 9 in response to Petro's June 7 request were the last pension documents that Wright provided to the union committee in June, I conclude that Wright was saying he had “missed copying” the census information in response to the June 7 request. I do not believe that Wright would have referred to the census information as something he had “missed copying" in response to the June 7 information request unless he understood that Petro had requested the census information. Moreover, the fact that the Respondent waited for over 3 months to provide the census data even once the Union requested it in writing undermines the Respondent's suggestion that the only reason it did not provide that information on June 9 was that Petro had not asked for it. The Respondent contends that I should not credit the testimony of Ryan, Letzgus, and Dennis regarding Petro's oral request for census data because they did not know exactly what census data consisted of. Based on their respective demeanors, I conclude that Ryan, Letzgus, and Dennis testified honestly. The fact that they may not have known what the term "census data" encompassed does not significantly detract from the reliability of their testimony that they heard Petro use those words when telling the Respondent what information he was requesting. See, also, footnote 13, infra.

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casting, 163 NLRB 475, 478 (1967), enfd. sub nom. Television Artists, AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). It is “the point in time of negotiations when the parties are warranted in assuming that further bargaining would be futile .... ‘Both parties must believe that they are at the end of their rope. AMF Bowling Co., 314 NLRB 969, 978 (1994), enf. denied 63 F.3d 1293 (4th Cir. 1995), quoting PRC Recording Co., 280 NLRB 615, 635 (1986), enfd. 836 F.2d 289 (7th Cir. 1987); Patrick & Co., 248 NLRB 390, 393 (1980), enfd. mem. 644 F.2d 889 (9th Cir. 1981). The question of whether a valid impasse exists is a “matter of judgment" and among the relevant factors are "[t]he bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, [and] the contemporaneous understanding of the parties as to the state of negotiations.” Taft Broadcasting Co., 163 NLRB at 478. Under these standards, an employer's claim of impasse has been found invalid where the evidence showed that the employer was determined to unilaterally implement reductions immediately upon the expiration of the agreement regardless of the state of negotiations. CBC Industries, 311 NLRB 123, 127 (1993); Dust-Tex Service, 214 NLRB 398, 405–406 (1974), enfd. mem. 521 F.2d 1404 (8th Cir. 1975).

The Respondent, as the party asserting impasse, has the burden of proof on the issue. L.W.D., Inc., 342 NLRB 965, 965 (2004); CalMat Co., 331 NLRB 1084, 1097–1098 (2000), Outboard Marine Corp., 307 NLRB 1333, 1363 (1992), enfd. mem. 9 F.3d 113 (7th Cir. 1993) (Table); North Star Steel, 305 NLRB 45 (1991), enfd. 974 F.2d 68 (8th Cir. 1992). In this case, the Respondent has not met that burden. Given the record, I conclude that as of June 10 the parties had not come close to “exhaust[ing] the prospects of concluding an agreement. Royal Motor Sales, supra. Impasse only exists when “Both parties. believe they are at the end of their rope." AMF Bowling Co., supra (emphasis added); see also PRC Recording Co., 280 NLRB at 640 (for impasse to exist, both parties must be unwilling to compromise). The evidence in this case shows that Union officials were not at the end of their negotiating rope, but were ready and willing to negotiate further compromises. While Nicoson was impatient with the Union's pace in agreeing to concessions, his frustration is not the equivalent of a valid impasse, nor did it mean that a negotiated settlement was not within reach. Grinnell Fire Systems, Inc., 328 NLRB 585 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 534 U.S. 818 (2001), citing Powell Electrical Mfg. Co., 287 NLRB 969, 973 and 974 (1987), enfd. as modified 906 F.2d 1007 (5th Cir. 1990) (futility, not some lesser level of frustration, discouragement, or apparent gamesmanship, is necessary to establish impasse). The Respondent's "feelings that the Union should have realized the seriousness and immediacy of its financial condition is immaterial and the Union cannot be made responsible for the resulting events because it was skeptical of the Employer's claims and therefore was slow to respond to or failed to immediately capitulate to Respondent's terms." Page Litho, Inc., 311 NLRB 881, 889 (1993), enfd. in relevant part 65 F.3d 169 (6th Cir. 1995).

The record here shows that the negotiations had not broken down, but rather were succeeding in narrowing the differences

between the parties and moving them closer to a contract. On May 26, at the third bargaining session, the parties signed tentative agreements on a number of noneconomic issues. Then on June 7, the Union presented a new comprehensive proposal in which it made concessions that eliminated or narrowed the divide between the parties on many economic and noneconomic issues. The Union's concessions demonstrated a willingness to make sacrifices in the interest of arriving at a new agreement, and were presented only two meetings before the one at which the Respondent declared impasse. See Royal Motor Sales, 329 NLRB at 762 (no valid impasse when the Union had made a dead-lock breaking proposal only 2 days earlier), Towne Plaza Hotel, 258 NLRB 69, 78 (1981) (employer's declaration of impasse invalid where the union had significantly reduced its wage demand only 2 weeks earlier and the union never stated it was unwilling to make further concessions). As indicated by Taft Broadcasting, supra, such evidence of good faith militates against finding a valid impasse. Although the Respondent repeatedly relies on the Board's finding of impasse in H&H Pretzel Co., 277 NLRB 1327, 1334 (1985), enfd. 831 F.2d 650 (6th Cir. 1987), that finding was based on the conclusion that the union's actions showed it "had no intention of ever consenting to any reductions in the existing labor costs." That cannot be said of the Union in the instant case. Moreover, the Union made this substantial movement even though the Respondent had declined to compromise from it initial proposal and had been unwilling to provide financial documentation that might very well have helped accelerate the progress towards a new contract. Given the clear indication of the Union's flexibility on significant issues, the Respondent was “arequired to recognize that negotiating sessions might produce other or more extended concessions.” Royal Motor Sales, 329 NLRB at 772 quoting NLRB v. Webb Furniture Corp., 366 F.2d 314, 316 (4th Cir. 1966), enfg. 152 NLRB 1526 (1965). That is true even where “a wide gap between the parties remains because under such circumstances there is reason to believe that further bargaining might produce additional movement." Hayward Dodge, 292 NLRB 434, 468 (1989), quoting Old Man's Home of Philadelphia v. NLRB, 719 F.2d 683, 688 (3d Cir. 1983). “Rather than explore the possibilities raised" by the Union's June 7 proposal, however, the Respondent “rushed to declare impasse and implement” its own final proposal. Royal Motor Sales, 329 NLRB at 763. This action “precluded further exploration of possible tradeoffs and foreclosed any finding that good-faith bargaining exhausted the prospects of reaching an agreement.” Id. "Having never fully tested the finality of the Union's bargaining position, Respondent is in a poor position to argue that further negotiations would have been futile.” Towne Plaza Hotel, 258 NLRB at 78.

In addition to indicating flexibility by its actions, the Union team explicitly notified the Respondent that it was not at the end of its rope. On June 10, when the Respondent's team asserted that the parties were at impasse, Ryan asked to continue bargaining and assured the Respondent that the Union committee was prepared to negotiate on any subject. Kostal's contemporaneous understanding was consistent with Ryan's assurances—he believed that the union committee was prepared to make further concessions on central issues, and that more ex

Page 4

and all loss of wage and other benefits incurred as a result of

APPENDIX
the Respondent's unlawful alteration or discontinuance of con-
tractual benefits, with interest, as provided for in the remedy

NOTICE TO EMPLOYEES section of this decision.

POSTED BY ORDER OF THE (c) Make contributions, including any additional amounts

NATIONAL LABOR RELATIONS BOARD due, to any funds established by the collective-bargaining

An Agency of the United States Government agreement with the Union that was in existence on June 10,

The National Labor Relations Board has found that we violated 2004, and which the Respondent would have paid but for the

Federal labor law and has ordered us to post and obey this notice. unlawful unilateral changes as provided for in the remedy section of this decision.

FEDERAL LAW GIVES YOU THE RIGHT TO (d) Preserve and, within 14 days of a request, or such addi

Form, join, or assist a union tional time as the Regional Director may allow for good cause

Choose representatives to bargain with us on your beshown, provide at a reasonable place designated by the Board

half or its agents, all payroll records, social security payment re

Act together with other employees for your benefit and cords, timecards, personnel records and reports, and all other protection records, including an electronic copy of such records if stored

Choose not to engage in any of these protected activiin electronic form, necessary to analyze the amount of backpay ties due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa

WE WILL NOT fail to provide to The International Union,

United Automobile, Aerospace and Agricultural Implement cility in Bay City, Michigan, copies of the attached notice

Workers of America (UAW), AFL-CIO, and its Local 496 (the marked “Appendix. "23 Copies of the notice, on forms provided

Union), or delay providing, upon request, census data or other by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the

information that is necessary to the Union's performance of its

duties as collective bargaining representative. Respondent and maintained for 60 consecutive days in con

WE WILL NOT fail to follow the terms and conditions in the spicuous places including all places where notices to employees

collective-bargaining agreement with the Union that was set to are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced,

expire on June 10, 2004, until a new contract is concluded or or covered by any other material. In the event that, during the

good-faith bargaining leads to a valid impasse, or the Union pendency of these proceedings, the Respondent has gone out of

agrees to changes.

WE WILL NOT implement terms and conditions of employbusiness or closed the facility involved in these proceedings,

ment that are different than those in the collective-bargaining the Respondent shall duplicate and mail, at its own expense, a

agreement that was set to expire on June 10, 2004, before a new copy of the notice to all current employees and former employ

contract is concluded or good-faith bargaining leads to a valid ees employed by the Respondent at any time since June 10, 2004.

impasse, or the Union agrees to changes. (1) Within 21 days after service by the Region, file with the

WE WILL NOT in any like or related manner interfere with, reRegional Director a sworn certification of a responsible official

strain, or coerce you in the exercise of the rights guaranteed

you by Section 7 of the Act. on a form provided by the Region attesting to the steps that the

WE WILL restore, honor, and continue the terms and condiRespondent has taken to comply.

tions of the contract with the Union that was set to expire on

June 10, 2004, until the parties sign a new agreement or goodIf 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 Na

faith bargaining lead to a valid impasse, or the Union agrees to tional Labor Relations Board” shall read “Posted Pursuant to a Judg

changes. ment of the United States Court of Appeals Enforcing an Order of the WE WILL make employees and former employees whole for National Labor Relations Board."

any and all losses incurred as result of our unlawful discontinuance of contractual benefits, with interest.

WE WILL make contributions, including any additional amounts due, to any funds established by the collectivebargaining agreement with the Union that was in existence on June 10, 2004, and which we would have paid but for the unlawful unilateral changes.

NEWCOR BAY CITY DIVISION OF NEWCOR, INC.

Page 5

1. Oral warning on March 4, 2003 On March 4, 2003, Bennetts received an oral warning from her supervisor, Elizabeth Erikson, for excessive talking with another employee, Chuck Suzik. When presented with a standard company form confirming the oral warning, Bennetts refused to sign and told Erikson that a double standard was being applied because other employees talked during worktime. At that time, she also told Erikson that her conversations with Suzik were all work related. In fact, they were not and the discipline was justified. Bennetts was told that her next violation would result in a written warning. After that discipline, Bennetts' on-the-job conversations with Suzik “toned down a little

II. ALLEGED UNFAIR LABOR PRACTICES

A. The Respondent's Operations The Respondent produces custom plastic products from injection molds at two facilities. One of its facilities is located in Ironwood, Michigan, and employs approximately 140 individuals. The other facility is located in Two Rivers, Wisconsin. The Respondent is owned by Gordon Stephens and his sons, Mark, Scott, and Robert. Mark Stephens is vice president of the Ironwood Division, Scott Stephens is vice president for administration, and Robert Stephens serves as a project manager.?

On April 1, the Respondent converted to a team-based organizational structure. Each team is assigned a team leader. Team leaders report to Production Operations Manager Mark Niemi.' Each team is responsible for the production of certain parts and there are three daily shifts for each team. Each shift is assigned an assistant team leader (ATL). ATLs are supervisors within the meaning of the Act. ATLs, along with team leaders, begin each workday with a production meeting that sets the work schedule for the day. ATLs also train employees, utilize independent judgment, counsel employees, participate in counseling sessions, and approve leave. In situations where management does not direct the particular work tasks for employees, the ATL takes the initiative of assigning the work.

B. Bennetts' Work History Jodi Bennetts (Bennetts), the discriminatee, was hired by the Respondent in June 2000 as a production employee. After a few months, she became a product inspector. In July 2001, she became a section leader. Bennetts worked as a section leader until November 2003, when she took a special assignment under Julie Sexton's supervision. In March 2004, that assignment ended and Bennetts was offered the newly-created ATL position. She initially accepted the offer, but changed her mind and resumed the position of product inspector. Throughout her employment by the Respondent, Bennetts was a competent, knowledgeable employee. During the relevant time period of March 2003 to April 2004, however, she was disciplined for inappropriate behavior on several occasions.

2. Written warning on November 21, 2003 On November 21, 2003, Bennetts received a written warning from Erikson stating, in pertinent part, that “[e]mployee will page a mold tech for a press problem (does not try to solve problem 1st) and if amt does not respond she leaves the press down—is unwilling to handle minor problems and always seeks to shut jobs down. Makes side comments to others about other employees. Employee undermines my supervision and makes belittling comments about my lack of knowledge in areas pertaining to technical skills and decisions that I make as supervisor.” As part of her discipline, Bennetts was instructed to follow the Respondent's "Guiding Principles of Respect, Trust, Excellence, Communication and Teamwork (the guiding principles).” Bennetts disagreed with this discipline as noted in the “employee comments” section of the form. Scott Stephens, who participated in the disciplinary meeting, stated on the form that Bennetts' next disciplinary step would be “[s]uspension or termination depending in severity.” On the same date, Niemi wrote an e-mail to Scott Stephens stating, “Scott, Liz just filled me in on the problem from yesterday. If Jodi has such HUGE problems with authority and teamwork, can we just accept her resignation? I have great concerns about her fitting into our new consensus based team decision making process.'

After receiving the November 21, 2003 written warning from Erikson, Bennetts spoke with Sexton and asked to transfer to her team because she was afraid she would be fired if she kept working under Erikson's supervision. Sexton, impressed with Bennetts' knowledge of plant operations, felt that she may have been paired with the wrong supervisor and was optimistic that Bennetts would be able to blend effectively into her team. She

The Respondent's organizational chart lists the three Stephens' brothers as copresidents, but also refers to Mark Stephens and Scott Stephens as vice presidents for their respective functions. (R. Exh. 7.)

Tr. 155-158; GC Exh. 6.

ATL Kyle Ramme's testimony clearly established that the Respondent considered the position supervisory. He also testified that, during the union campaign, either his team leader, John Lorenson, or Mark Niemi, the production manager, instructed him as to what he could and could not say to employees. (Tr. 128-135; GC Exh. 14.)

I found Bennetts' testimony credible on this and most other issues. She conceded that she was not involved in any union-related activity at the time, her conversations with Suzik were not all work related, and they were, in fact, involved in a romantic relationship. (Tr. 39-40, 210212; R. Exh. 1.) In light of these concessions, I disagree with the Respondent that Bennett's denial of the affair to a supervisor she did not like, as well as the affair itself, detract from her credibility.

Ó I found Erikson's testimony credible and confirmed by Bennetts' concession that she did not like working for Erikson. Bennetts conceded telling Erikson that she got too dressedup for work, acted like she did not want to get dirty, did not pitch in enough, and would say “I don't know” a lot. Bennetts also acknowledged the need to abide by the guiding principles and that her next rule violation could result in suspension or termination. (Tr. 45–47, 214 215; R. Exhs. 2, 8, 12.)

22. Sexton documented this discussion in a memorandum to Niemi, dated March 18.9

On March 22, Bennetts informed Sexton that she accepted the ATL position. The next day, however, Sexton interrupted a conversation between Bennetts and Suzik. Later that day, Bennetts told Sexton that she changed her mind and declined the ATL position. In a counseling report, dated March 24, Sexton wrote that Bennett's change of mind "places the company in a difficult position so close to kickoff. Jodi has indicated a consideration in her decision is a fact that she and I will continue to disagree, as she still contends she made the right call by shutting down the press.” Sexton further wrote that Bennetts was reassigned to work on ATL Wiemeri's shift. She was expected to improve her team participation and discussions, follow company policies and instructions from management, comply with prior counseling regarding her worktime conversations with Suzik, and take all production and quality-related issues through the appropriate supervisory chain. Sexton also noted that Jodi Bennetts' failure meet the “improve ments/standards” would require “[s]uspension or termination depending on the severity of the incident.” In her written response to Sexton's report, Bennetts disagreed with Sexton as to why she declined the ATL position: “I have brought up certain concerns to my team leaders and other team leaders ... the answers to my questions and concerns have been very vague and not very positive to me.” At that point, Sexton had serious concerns about Bennetts' cooperation in the Respondent's transition to a team-based system.

C. The Anonymous Letter About a week after being counseled by Sexton on March 24, for declining the ATL position, Bennetts sent an anonymous 2page letter to Scott Stephens, Mark Stephens, Human Resources Director Theresa Turula, and Niemi. They received the letter on April 3. The first page was a copy of a Teamsters union organizing flyer." The second page resembled a newsletter with the typed message “Remember this?????? It may be closer than you think!!!!!” The letter did not include a return address and was unsigned." Bennetts was not working with the Union at the time she sent the letter.13 In addition to Suzik, who helped her send the letter, the only other person who knew that she sent it was Wiemeri. She told Weimeri about the letter at some point prior to April 16.4

accommodated Bennetts' request, transferred her onto her team, and they worked well for several months.?

3. Counseling on February 26 On February 26, at Niemi’s request and based on her own observations, Sexton counseled Bennetts about excessive talking with Suzik during worktime. Sexton documented that encounter in a memorandum stating that “I spoke with Jodi this morning in regard to excessive talking with Chuck Suzik. I explained that we all need to maintain focus on the job, and any personal conversations need to be limited to lunch breaks or other time which is not 'on the clock' at Ironwood Plastics. Jodi was very professional during this discussion, and agreed to abide by our request.

4. Counseling on March 24 On March 17, Bennetts decided to pull a scraped, but intricate, part of a machine used by her team-the A side of the 1838A tool (the A tool). Prior to taking that action, Bennetts consulted with James Wiemeri, Mo DeYoung, Doug Palmeter, Dave Zelienski, and Dave Simcoe. Upon returning from lunch, Sexton saw Bennetts speaking with Zelienski. Sexton joined the discussion. After Bennetts explained her concern, Sexton asked to see the part in question. Bennetts responded by jumping onto the equipment platform and told Sexton she was "pulling the A side per Dave Zelienski.” Sexton took the part and examined it under a microscope. Sexton then asked Simcoe what happened, He was not sure, however, as he had previously checked out the scrapings and determined they did not affect the integrity of the machine. Sexton then spoke with Zelienski and asked if he instructed Bennetts to pull the A tool. Zelienski told Sexton that he advised Bennetts to discuss it with her and that any quality concern should be addressed by the tool room. Sexton then approached Bennetts and directed her to "quantify the defect.” Bennetts was unable to do so and told Sexton that “it's your call.” Sexton told her “that is correct, put the tool back in the press and get it running."

Concerned that Bennetts took such action at a time when the Respondent was 22,000 parts behind on customer orders, Sexton discussed the incident with her the next morning. Bennetts admitted that she acted in spite of Zelienski's disagreement with her proposed action. Sexton counseled Bennetts that, in similar future situations, she needed to wait for Sexton to return from lunch before shutting down production and determine whether true defects existed by measuring the parts. Sexton did, however, agree with Bennetts that Zelienski's prior inspection of the A tool should have been noted in the job book. Bennetts took the opportunity during this conversation to inform Sexton that she declined the ATL position for the midnight shift, but was willing to work as a team member on that shift. Sexton asked her to reconsider and give her a final answer on March

Sexton's account in the memorandum was not refuted. (Tr. 227– 228; R. Exh. 4.)

The counseling report, although written and signed by Sexton, also listed Erikson as Bennetts' supervisor. (GC Exh. 3.) In any event

, Bennetts agreed that this incident was unrelated to her support for the Union, confirming Sexton's assertion that Bennetts had a problem with the transition to the new team-oriented system. (Tr. 53, 231.)

The Respondent was the subject of a union organizing campaign in 1996. The union lost the election in September 1996. (Tr. 168.)

Tr. 57, 71; GC Exh. 2.

Bennetts conceded that she was not working with the Union at the time. (Tr. 18.)

"The General Counsel objected when Wiemeri was asked whether Bennetts ever told him that she sent the letter. The question was leading, the objection was sustained and the answer stricken. Although the question was not rephrased, the issue is an important one. On further

The testimony of both Bennetts and Sexton was fairly consistent and credible regarding Bennetts' performance and related problems. (Tr. 48-49, 223–224.)

The General Counsel does not contend that this discipline was based on union animus. (Tr. 224-225; R. Exh. 3.)

In response to the anonymous letter, Scott Stephens met with the team leaders and other managers. They discussed the names of employees who might have sent the letter, as well as employees who were dissatisfied. It was widely known, however, that employees were unhappy about recent layoffs and a wage freeze. The meeting concluded with Scott Stephens' directive that team leaders identify and report the names of employees who were unhappy and why. Scott Stephens also explained what conduct was legally appropriate or inappropriate during a union organizing campaign. In response, each team leader interviewed each employee on his or her team and generated a sheet identifying the specific areas of unhappiness.

The Respondent first addressed employees as a group about the letter at the April 15–16 shift meetings. Monthly shift meetings are held to discuss the Respondent's financial performance for the previous month, make announcements, address plant and employee issues, and answer questions. Toward the end of each of the shift meetings, Mark Stephens displayed the anonymous letter on an overhead projector. He was extremely annoyed that someone sent the letter and, referring to a prior union campaign, at the prospect of another union campaign." Mark Stephens asked the employees if they "really think this company can survive this again.” He discussed "the customer impact of union activity in our plant,” and added that "you guys know how customers feel about this. Indeed, Mark Stephens' statements were consistent with the emphatic matter in which the Respondent made its nonunion status known to potential

customers. For example, in its March 1, 2004 response to a question on a TRW Automotive questionnaire as to whether it was a party to a collective-bargaining agreement, the Respondent stated, “Non union!” Similarly, in its August 14, 2002 response to a similar question on a GK Automotive Inc. Supplier Survey as to whether it had any union affiliations, the Respondent stated, "None!"19

At the particular shift meetings that they attended, Bennetts, Michael Johnson, David Kantala, and Michael Bennetts heard similar comments by Mark Stephens. Bennetts attended the shift meeting at 3 p.m. on April 15, and heard Mark Stephens say that "the company was still suffering from repercussions from the last union votes. The customers do not like unions. We were just getting customers back from the last union votes. That either way, yes or no, that the company could not afford to have another union vote. Kantala also attended this meeting and heard a similar comment by Mark Stephens: that a union "would do harm to our customers if it came in."21 Johnson also attended the meeting and heard similar remarks.“- During the meeting held with his shift the following morning, Michael Bennetts heard Mark Stephens state "that he felt betrayed. He couldn't understand why a union was trying to be organized in the plant. He was very upset with it and he would not have anything to do with a union in the plant.”:23 D. The April 20, 2004 Suspension and Employee

Counseling Report In the meantime, Bennetts' behavior during the weeks following her March 24 counseling did not improve. Sexton observed that Bennetts became boisterous on the plant floor, was singing and playing music loudly, and disrupting other employees. Sexton felt that Bennetts' violated the Respondent's guiding principle of respect for coworkers. The last straw was when Bennetts circumvented the chain of leadership and went straight to Scott Stephens to report that someone changed her written entries.

On April 15, as part of her regular duties as a product inspector, Bennetts measured several products and took notes in order

reflection, the objection is overruled and Wiemeri's denial is included in the record. I did not, however, find Wiemeri credible since his testimony seemed overly rehearsed and protective of the Respondent. He was asked if he was aware of union activity in 2004, and went beyond the scope of the “yes or no" question to note that he became aware of it after Bennetts' departure. Moreover, Wiemeri, a 17-year employee of the Respondent, testified that he was not "familiar with any union organizing” prior to May 2004, even though there was a bitter campaign in 1996. (Tr. 375–376.) On the other hand, Bennetts was credible on this issue. I did not, however, rely on her speculation that Wiemeri “may have told other members of management.” (Tr. 62.)

Scott Stephens was less than credible about the primary purpose of the meeting; he clearly wanted to know who sent the letter and whether it was gaining steam among employees. When asked if team leaders mentioned names at this meeting, he testified that "might have happened. Scott Stephens also admitted that they speculated as to who sent the letter, and that he directed them to interview their employees and report back. (Tr. 165–168; GC Exh. 25–27.)

The shift meetings generally occur within the same day or the

Mark Stephens' testimony reflected utter disdain at the notion that someone would try to unionize his family-owned company after all that it had done for the area. It was an offensive display in which he tried to place his company on a pedestal with condescending remarks about the workers and residents of the upper peninsula of Michigan: "you've all seen and I'm sure made fun of us up here;” and “I can still remember fricken General Motors walking in the door, coming up here to see a bunch of Upers in Ironwood, Michigan.” (Tr. 354–356.)

Mark Stephens testified he was “sure [he] said other things,” but these statements were all he could remember. (Tr. 340-342; GC Exh. 7.) In support of his assertion, he relied on records indicating that customer sales decreased 23 percent in the months following the 1996 union election. There is no indication, however, that the Union prevailed in that election.

R. Exhs. 24 (p. 2) and 27 (p. 11).

This finding is based on the credible testimony of Bennetts. (Tr. 21-22.)

Kantala's testimony was credible and fairly consistent with Bennett's testimony. (Tr. 92.)

Johnson had no current recollection as to what Mark Stephens said, but attributed that to a diminished capacity over the past year. (Tr. 103–104.) He did recall, however, a subsequent interview on June 22, with a Board agent in which he needed "quite a bit of prompting” in order to recall the facts and signed an affidavit regarding the April shift meeting. (Tr. 110.) Johnson authenticated his signature on the affidavit, which he believed to be correct at the time he signed it. (Tr. 102-104, 112.) Accordingly, a portion of Johnson's affidavit was read into the record, as past recollection recorded, in accordance with Fed. R. of Evid. 803(5). J. C. Penney Co. v. NLRB, 384 F.2d 479, 484 (10th Cir. 1967). I found Johnson credible as to the circumstances of the affidavit and his diminished capacity, but gave his testimony, based on his past recollection recorded, limited weight and only to the extent that it corroborated the testimony of Bennetts and Kantala. (Tr. 118.)

This finding is based on the credible testimony of Michael Bennetts. (Tr. 79.)

She has failed to keep the team leadership informed of her recent concerns and has not worked to resolve these concerns in a professional manner. Jodi tends to share her frustrations in an attempt to gain sympathy from coworkers who should not be involved in the issue(s).

Jodi seems to be working against the team concept as opposed to embracing the potential of the work we can do

together The counseling report listed 4 points for expected improvement and/or future standards:

to complete a quality-control report. She provided these measurements to her ATL, who was responsible for entering this information in the Respondent's data system. The following day she repeated the process, but noticed that the computer data was different from the information she entered the previous day. Bennetts printed a copy of the report and went directly to Scott Stephens' office. She told him that she was concerned because her data indicated that the part in question was defective and this information was not reflected on the computer printout. In the course of this conversation, she added that this was an example of concerns shared by many employees. Those issues included inadequate training of ATLs and team leaders, and inadequate help for employees on the production floor. Scott Stephens responded that if Bennetts was going to be a spokesperson for other employees she was going to "get burned.” Bennetts then asked him if she could take 3 days of personal leave to “clear her head.” Scott Stephens denied the request because she “would just come back to the same situations and problems." Bennetts then resumed working.

Sexton felt that Bennetts' action in going straight to Scott Stephens violated the guiding principles of communication and teamwork.-After discussing these issues with Scott Stephens and Niemi, Wiemeri and Sexton authored a counseling report, dated April 16, and gave it to Scott Stephens. It stated:

Jodi opened an SPI file and found that her dimensional results had been changed. She printed the file and took the information up to Scott Stephens as opposed to questioning her ATL/TL responsible for the team. This is a clear violation of her counseling report from 3/24/04 which states:

Jodi must take all production concerns and quality related questions through the appropriate chain of leadership in regard to her High Impact Work Team with Jim as her supervisor, and me as her team leader. In cases where she is asked to work outside her core team, this requirement also applies to the ATL/TL for the area in which she is as

signed." In regard to our guiding principles, Jodi has failed to abide as follows:

She has failed to treat her fellow team members in a professional and polite manner as is evidenced by her relatively raucous and disruptive behavior.

She has not maintained the commitments she had previously made to the team concept in relation to her posi

Jodi must adapt to the team environment as a value added contributor to the goals and objectives of the team as set forth on her performance agreement.

Jodi must remain focused on the work she is performing, and after verification of quality concerns address any issues to Jim and or Julie in Jim's absence.

Jodi's time on the job is to be spent on her work assignments exclusively and any interference that she enters into which distracts another team member or any other employee of the company will be grounds for immediate termination.

Jodi must return to work with a fresh perspective in order to order to retain her employment. The report further stated that Bennetts' failure to meet the "improvements/standards” would require “[i]mediate termination for any minor infraction.” The employee comment section on the form was blank.

On April 20, Bennetts met with Scott Stephens, Niemi, Sexton, and Wiermeri. Bennetts was given the April 16 employee counseling report and another one, dated April 20.?? The April 20 employee counseling report, which listed Sexton and Weimeri as Bennetts' supervisors, was actually generated by Scott Stephens. That report stated, in pertinent part:

A significant pattern of counseling indicates substantial dissatisfaction with Jody's behavior and performance. This pattem must cease. These continuous issues have demonstrated Jody's inability to accept criticism and correction in any form These counselings have consumed an enormous amount of leadership resources and distract from our mission to serve

our customers. The April 20 report essentially differed from the April 16 report by directing Bennetts to take 3 days of unpaid leave and return on April 23 "with a definitive, written plan of how she will modify her behavior to address the company's concerns. Failure to do so, or a substandard response will result in termination.” The Respondent's concerns, “[e]xpected improvement and/or standard for the future," were:

I based this finding on Bennetts' credible testimony. (Tr. 26–27.) Scott Stephens, on the other hand, was evasive about what he said during the conversation. He conceded that Bennetts requested leave, but refused to admit that he denied the request. When pressed on that issue, he simply responded that he “understood she was having an emotional response." (Tr. 185–187.)

25 This finding is based on Sexton's credible testimony and the Respondent's written guidelines for employee behavior. (Tr. 232–235; R. Exh. 8.)

Sexton credibly testified that she viewed Bennetts refusal to accept the promotion to the ATL position as a violation of the guiding principle of trust, which is defined as being honest and keeping commit

27 The form was shown to Bennetts on April 20, but she was asked to sign it or provide her written comments. In any event, the testimony of Bennetts and Sexton was fairly consistent about what transpired at the meeting. (Tr. 28–29, 235,237; GC Exhs. 4-5.)

*Conversations during work time with Chuck Suzik are not allowed.

*Jody needs to remain focused on her work.

*Use the proper chain of command to resolve problems.

*Adhere to the Guiding Principles at all times.

E. Bennett's Termination As scheduled, Bennetts met with Sexton, Wiemeri, and Niemi on April 23. She submitted a written plan, dated April 22, responding to the April 20 counseling report. After giving each attendee a copy of the letter, she read it to the group:

During my 3 day suspension, I came to the realization that my "eratic (sic), off the wall, unacceptable behavior" tends to arise when I feel stressed, inadequate, threatened, or when I feel like I am being put on the spot and watched. These actions also arise in my personal life. I have a tendency to carry my “behavior” to work with me. Most of the time it is a good mood but I know [sic] realize that it is not always acceptable. Not all people appreciate my sense of humor and my out of tune singing. I also know that I can be a very impossible person. I may feel that my

frustrations and reasonings are justified, but I need to understand that I don't need to react the way I do. If I have a concern or problem I will go through the chain of command.

I know I can be a good leader and I can also be a good leader in bad ways. When I get too loud and talkative, I can see others act up also I don't feel my talking with any employees in a "normal tone” a [sic] bad thing. I don't consider friendship in the work area a bad thing either. Let it be same on opposite sex friendships.

With all this said I will work on controlling my actions and behavior. If I feel stressed or any other feelings [dealing with work] I will talk them thru with Jim or Julie when Jim is not present.

As far as the talking issue, my counselor and I feel that it would be best that I only talk when it is needed, but to still be friendly and considerate to my fellow co-workers. In my counseling report it states “any interference that she enters into which detracts another team member or any other employee of the company will be grounds for immediate termination" and "immediate termination for any minor infrastructure (sic).” With the word minor in that statement I feel for my security in my job. These are the

realizations and decisions I needed to come to and make. Following the meeting, Sexton, Wiemeri, and Niemi purportedly documented the encounter in a memorandum to Scott Stephens:

The meeting we held with Jodi Bennetts to discuss her employment retention got off to a great start. Jodi had met with her counselor who helped her to come up with a plan for improvement. The letter Jodi prepared included a

number of suggestions her counselor had made which could help channel her frustrations and eliminate some of our cause for concern. Jodi expressed her intent to implement this course of improvement.

Jodi then went on to share the issues which cause much of her frustration. Revisiting several of the examples she had used in our original meeting, the negative behavior became very observant once again. Although Jodi says she can work within the team environment, her actions do not reflect true acceptance of our new direction. This was Jodi's opportunity to sell herself to us, and once again she used the time to vent negative emotion. If she were truly on a new path toward team membership, she should have left the old baggage behind.

Jodi did not convince her operations leadership team that there would be any change in how she felt about our ability to lead this team to ultimate success. She indicated she would be able to refrain from discussing her frustrations, but would like to have the opportunity to use Jim or Julie as a sounding board when she feels the need to "vent.” This is another indication of her uncertainty in her ability to fit into the organization without further conflict.

We asked Jodi to go home today. We told her we would call her on Monday (April 26] to schedule a followup meeting to determine the final outcome of her situation. We allowed her to take today and Monday as vacation

hours. There was a discussion after Bennetts read the letter. She was praised by the group for admitting her problems and told that she was a valuable employee on the production floor. Bennetts then digressed, however, into old issues and expressed the desire "to vent when she needed to vent.” Bennetts was then asked to step outside while they discussed her situation. The group essentially decided that Bennetts should be terminated, but Scott Stephens suggested they hold off until after the weekend. After a while, Wiemeri brought Bennetts back into the meeting. Nieimi told her that they would need the weekend to consider her letter and arrive at a final decision.?

On April 26, Bennetts met with Sexton, Wiemeri, Niemi, and Scott Stephens. They praised Bennetts' abilities in performing certain tasks on the production floor, but explained that her work behavior was unacceptable. Niemi then told Bennetts that her employment was terminated.29 Bennetts' termination was consistent with the Respondent's disciplinary approach toward similar conduct. From January 1, 2003, to December 31, 2004, the Respondent discharged 25 employees. Six of these terminations occurred between February 2003 and February 2004, and

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were for conduct and behavioral reasons similar to the grounds for Bennetts' termination.

F. Lorenson's Threat Michael Bennetts supported the Union and began distributing union literature in the employee workroom during the end of April. John Lorenson has been a team leader at the Ironwood facility since September 2003. He and Michael Bennetts were friends as far back as junior high school, were roommates in college, and continued to socialize with each other thereafter. Michael Bennetts worked on a different shift, but did Lorenson a favor by filling in for one of his employees one day in May. As a sign of his appreciation, Lorenson took Bennetts to lunch during a break. They had just driven back to the Respondent's parking lot when Lorenson told Michael Bennetts that he felt "betrayed” because he helped him get hired a year earlier. Lorenson "didn't feel that the whole thing with the union was going was right,” wished that Michael Bennetts “would have held back his feelings a little bit” about the Union, and he “really felt hurt by it.” He wanted Michael Bennetts "to choose a way” and told him that he "would know the best way to

card just to get the person asking you to sign to leave you alone.

We know that we face many issues and challenges. We have tried and will continue to try to address such issues head-on. We do not believe that an outside, third party will help in any way.

If you have any questions about the cards, or any other matter connected with the union, please ask your supervisor or one of us. We will give you the answer, or if we don't know the answer, we will find it and get back to

you. On May 5, Sexton approached her team's employees and asked each if he or she received the May 3 letter and had any questions.94 Three employees, including Wiemeri, responded that they received the letter and expressed their opposition to a union. Of the three employees, Wiemeri was the “most outspoken and very adamant about his loyalty to the company.” When Sexton approached Kantala, she asked him, “What do you

think of the union?” He replied that “he'd seen good and bad in the union.” Later that day, Sexton e-mailed Scott Stephens describing the responses of her shift employees. In an obvious reference to her inquiry about their union sentiments, her e-mail stated that Kantala and Brenda Jakeway had “no comment." The e-mail ended with a statement, “That's about it for now.

On May 6, Sexton's husband drove her home for lunch. Knowing that a union meeting was scheduled for a local restaurant—the Country Kitchen—at 1 p.m., she had her husband drive to the bank across the street from the restaurant. As she sat in the car at approximately 12:30 p.m., Sexton saw Bennetts get out of a vehicle carrying papers and enter the restaurant. Shortly after returning to work, at 1:21 p.m., Sexton sent Scott Stephens an e-mail, entitled, “Jodi.” “I still did not want to believe it, but I had to go to the bank at lunch time today, and I saw her walk into the Country Kitchen at 12:30 p.m. with my own eyes.

Nearly 2 hours later, Sexton sent Scott

G. Sexton's Employee Interrogation, Grievance

Solicitation, and Surveillance On May 3, the Respondent sent a letter to each employee. The letter was signed by Mark and Scott Stephens:

We recently learned that the UAW is trying to form a union here at our Ironwood facility. While there are some who many think having a union will help our employees, many recognize this as misguided.

Many of you lived through the election of 1996. You know the arguments, hard feelings, distrust, politics, dissension and distraction that can be associated with an organizing campaign. You saw first hand how our sales declined as our customers became concerned that our company would become unionized. It has been a long climb to restore relations with them. This past history shows us that our customers may not tolerate even the chance of a disruption in their supply chain.

The next step in this process is that the paid union organizers and your coworkers who support the union will urge you to sign a union authorization card. The union organizers want these cards so they can file a petition for an election. If they cannot get enough cards signed they will go away. Having them go away, we think, is the best result for all of us: You, the company and our community. We urge you to think twice before signing any card. This is an important matter. Do not take it lightly and do not sign a

33

GC Exh. 8. 34

Paragraph 10 of the complaint alleged that Sexton illegally interrogated Kantala on May 3. At trial, the General Counsel moved to amend the complaint to allege that Sexton interrogated other employees and solicited grievances on May 5, and engaged in surveillance of employee union activity on May 6. The motion was granted, but I find that Sexton's discussion with Kantala also occurred on May 5, not May 3.

I did not find Sexton's testimony credible regarding union-related issues. As such, this finding is based on the credible testimony of Kantala, as corroborated by Sexton's e-mail. (Tr. 93; GC Exh. 10.) Sexton's e-mail said that Kantala and Jakeway replied “no comment” when she approached them. It is likely that this answer was in response to a question as to how they felt about the Union. Furthermore, Sexton testified after Kantala and did not refute his version of the conversation. There was insufficient evidence, however, to conclude that the positions stated by the others were anything other than voluntary expressions of opinion about the May 3 letter.

Sexton was not credible on this issue either. She knew about the meeting beforehand and heard rumors that Bennetts was involved in organizing activity. Nevertheless, Sexton asserted that she doubled the rumors and found it incredible that Bennetts would be involved. (Tr. 244–245; GC Exh. 11.) Sexton was quite familiar with Bennetts' out

Scott Stephens' testimony regarding the Respondent's disciplinary actions in 2003-2004 was supported by abstracts of personnel records and not effectively refuted (R. Exh. 15–16.)

Neither Michael Bennetts nor Lorenson testified as to the date that the conversation took place. It likely took place shortly after Michael Bennetts placed literature in the lunchroom.

Stephens another e-mail that Jarvenpaa had "handed in a list of company supporters” at the Union's meeting. She attributed that information to Weimeri.37 H. Ramme's Restrictions on Michael Bennetts'

Section 7 Rights Kyle Ramme was Michael Bennetts' ATL. Ramme knew that Michael Bennetts was a supporter of the Union and that another employee, “Bill,” was antiunion. One day during the middle of May, Michael Bennetts and Bill were working alongside each other. Concerned that this arrangement could lead to an argument, Ramme told Michael Bennetts "not to talk about union activity on the plant floor.” Michael Bennetts replied that it was appropriate to talk about the Union, since other employees talk about hunting, fishing, sports, and other subjects on the plant floor. Ramme responded that he did not mind Bennetts "talking union activity but just to keep it to a minimum." Ramme did not speak to Bill about this subject.

1. The Respondent's Role in Employees' Antiunion Efforts

In early May, Darrin Jarvenpaa, a mold maker in the tool department, asked Scott Stephens whether it was permissible to obtain a list of employees from the payroll department in order to start an antiunion petition. Scott Stephens authorized Jarvenpaa to proceed. The Respondent applies a "common sense" approach to the type of information disclosed; it would not, for example, disclose the tax withholding and disciplinary records of other employees. In addition, the Respondent periodically posts in the cafeteria lists of employees who are eligible for the Respondent's profit-sharing plan. Approximately 85 percent to 90 percent of employees are eligible for profit sharing and would be included in the posting. Employees would be able to photocopy such a list. Also, in February, the Respondent placed an ad in the local newspaper listing every employee's name and thanking them for their service. In any event, there is no instance in which the Respondent has ever denied an employee list to an open union-supporter.

Scott Stephens knew that Jarvenpaa intended to solicit signatures for the petition from other employees during worktime and in work areas. In fact, Jarvenpaa even approached prounion employees Kantala and Brenda Jakeway. 0 This was consistent with the Respondent's policy of permitting solicita

tion in work areas during worktime. Such instances included Kantala's solicitation of signatures for his petition to qualify as a candidate for elective office and another petition to place a referendum on the public ballot."

J. The May 24th Annual Meeting Once a year, the Respondent addresses all employees at an off-site meeting in Ironton. During the Respondent's annual meeting held on May 24, one of the listed “Goals for the upcoming year" in the Respondent's PowerPoint presentation was “Union-free status continues.' Mark Stephens was the last manager to speak." He purportedly issued a “challenge” to his employees:

This was a very very short speech. I started off talking about a wall that we had referenced, back many years ago, between management and employees. And then I went in and talked about how I felt that my goal was to have people that want to work for our company. And I talked in—the way I said my speech was, I listed several things like--and these were all things at that time that we had been hearing. We had been hearing that people were either complaining about or saying behind our backs or whatever. And my speech was a challenge to them saying, you know, man it must just be terrible to have to come to work when you really don't believe Tim Foster's financial numbers that we post every month. And man it must be terrible to have to come back to work when you don't trust management. These were all things that we'd been hearing, that I'd been bringing up and I said, it must be just terrible to come to work when you feel you're afraid to raise your hand at an employee meeting and ask a question for fear of getting fired. And it must be just terrible to—there was two or three other things. I'm not—it must be just terrible to have to come to work with those kinds of things. As short as life is to have to come to work to a place where you just really feel like that. And I ended my speech by saying are you really sure this is the place you want to work, and I repeated it and said it pretty loudly. I said, are you really sure this is a place

that you really want to work."44 Kantala, Johnson, and Michael Bennetts attended the meeting and heard Mark Stephens tell employees that he was aware of a potential union campaign, it was the Respondent's goal to remain union-free, and employees should look for employment elsewhere if they did not trust management.

poken and aggressive personality and had no reason to be surprised that Bennetts would be engaged in such activity.

This e-mail, when read together with her earlier one, negates any notion that Sexton stopped at the bank for a reason other than to monitor employees' union activities. (GC Exh. 12.)

I based this finding on the credible testimony of Michael Bennetts. (Tr. 81–82.) Ramme's testimony was limited to paraphrases of what he said (for example, “I basically asked him to ...” or “It was something along the lines of ..."). Nevertheless, it was consistent with Michael Bennetts' testimony and he conceded that his comments referred to the Union. (Tr. 138-139.)

Jarvenpaa was not called as a witness, although he is still employed by the Respondent. (Tr. 373.) As there was no request for an adverse inference, however, this finding was based on Scott Stephens' unrefuted testimony. (Tr. 171-172, 264, 267-270, 325; R. Exh. 9–10.)

I based this portion of the finding on Kantala's credible and unrefuted testimony. (Tr. 95.)

Scott Stephens could not recall telling Jarvenpaa whether he could solicit during worktime and in work areas, but the reasonable inference is that he permitted Jarvenpaa to do so because other forms of solicitation were permitted. (Tr. 263–265.)

GC Exh. 20 (p. 49). Tr. 348–349, 353. 44 It was clear from the deliberate pauses and gaps in Mark Stephens' testimony-such as the "several things” that he listed or the things that people were “saying behind our backs or whatever"—that he brought up the issue of a potential union campaign. (Tr. 353–354.)

I based this finding on the credible testimony of Kantala and Michael Bennetts, and corroborated by Johnson's past recollection, as recorded in his affidavit (Tr. 80, 93, 119–120.)

A. The 8(a)(3) and (1) Charges

employees, was also proof that he knew she was engaged in protected concerted activity.

There was no dispute that the Respondent had antiunion animus. At the April shift meetings, Mark Stephens spewed utter indignation at even the notion of a union vote. He told employees he "felt betrayed,” was upset, and would not stand for a union in the plant. Mark and Scott Stephens followed up in a letter, dated May 3, signed by both of them expressing opposition to the Union. At the May annual meeting, Mark Stephens again addressed a potential union campaign by chastising employees who did not trust management. In a reflection of his dismissive approach to the rights of workers to organize, he said he wanted to “challenge” them. Mark Stephens then suggested that they go elsewhere to work if they were not happy with their jobs and management. He said this in a loud voice and obviously calculated to express his opposition to a union campaign. Furthermore, Mark Stephens' statements were consistent with the emphatic matter in which the Respondent highlighted its nonunion status in customers' written applications and surveys.

On April 16, shortly after Bennetts' disclosed to Wiemeri that she sent the anonymous letter, Sexton resumed the disciplinary process with a counseling report. It was issued on April 20, together with a similar counseling report generated by Scott Stephens, which provided for Bennetts' suspension. As a result

, Bennetts was suspended for 3 days. She returned, met with Scott Stephens, Sexton, Niemi, and Wiemeri on April 23. The management team was not impressed with Bennetts' plan to remediate her behavioral problems and decided to terminate her. However, Scott Stephens told Bennetts that the group needed to think about it over the weekend. On April 26, the management group told Bennetts she was terminated. Under the circumstances, the Respondent's hostility to the Union and the timing of its action in terminating Bennetts supplies “reliable and competent evidence of unlawful motivation.” Davey Roof. ing, Inc. 341 NLRB 222, 223 (2004).

Since the General Counsel established a prima facie case, the burden of persuasion shifted to the Respondent to prove, by a preponderance of the evidence, that it would have disciplined, suspended, or terminated Bennetts in the absence of her union or concerted protected activity. Avondale Industries, 329 NLRB 1064, 1066 (1999).

Bennetts accumulated a significant disciplinary history over her last 14 months of employment. On March 4, 2003, she was orally warned by her supervisor for excessive talking with Suzik. Bennetts was informed that the next violation would result in a written warning. On November 21, 2003, she received a written warning for shutting down the press for minor problems, making personal comments about other employees, and undermining her supervisor's competence. Bennetts was informed that the next discipline would result in suspension or termination. At that time, Niemi suggested in writing to Scott Stephens that Bennetts be asked to resign because of her problems with authority and teamwork.

After receiving the November 21, 2003 warning, Bennetts transferred to Sexton's team. On February 26, at Niemi's request and based on her own observations, Sexton counseled Bennetts about excessive talking with Suzik during worktime.

1. Bennett's termination The General Counsel asserts that the Respondent violated Section 8(a)(3) and (1) of the Act by disciplining and suspending Bennetts on April 20, and then terminating her on April 26, because she supported the Union and engaged in protected concerted activities. The Respondent contends it was unaware of Bennetts' union activity until after she was terminated and that, in any event, she would have been terminated because of her misconduct.

Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel has the initial burden to establish that the employee engaged in concerted protected activity, the employer had knowledge of the employee's protected activities, the employer took adverse action against the employee, and there is a nexus or link between the protected concerted activities and the adverse action. If the General Counsel is able to establish a prima facie case by meeting these four elements, the burden shifts to the Respondent to prove, by a preponderance of the evidence, that the adverse action would have been taken even in the absence of the protected conduct. Simply presenting a legitimate reason for its actions is not enough. T. J. Trucking Co., 316 NLRB 771, 771 (1995); GSX Corp. v. NLRB, 918 F.2d 1351 (8th Cir. 1990).

The credible evidence established that Bennetts was engaged in concerted activity protected under the Act. Tactically, it seems strange that a potential union supporter would seek to provide advance notice, albeit anonymously, to managers who historically opposed unionization efforts. Coming about a week after she was counseled for declining the ATL position, the letter seemed to serve no purpose other than to taunt management. Nevertheless, the letter provided management with the clear message that the sender of the letter, which was accompanied by a union organizing flyer, was or would be a supporter of union activity.

Scott Stephens' testimony revealed that the Respondent was determined to find out who sent the anonymous letter. The credible evidence also established that the Respondent did, in fact, learn that Bennetts sent it. Bennetts told Wiemeri, a supervisor and member of the management group that decided to terminate her, that she sent the letter. Bennetts was an extremely credible witness throughout most of her relevant testimony; she made no attempt to deny her behavioral indiscretions, misconduct, and failure to work well within a team setting. Wiemeri, on the other hand, was not credible. He was terse in his denial that she told him that she sent the anonymous letter, and his brief testimony was rehearsed and overly protective of the Respondent. It was also clear from Sexton's May 6 e-mail that Wiemeri, an “outspoken” supporter and “adamant about his loyalty" to Respondent, would have passed that information on to his supervisor, Sexton, and other management. Chugach Management Services, 342 NLRB 703, 740 (2004). Furthermore, Scott Stephens' remark that she would “get burned" if she continued to act as a spokesperson for other

Sexton documented her action in an informal memorandum signed by her and Bennetts. The memorandum reflected Bennetts' agreement to refrain from personal conversations during worktime. Unlike prior disciplinary reports, however, the memorandum did not refer to the next disciplinary step that would follow.

On March 18, less than 1 month later, Sexton counseled Bennetts for prematurely shutting down production without sufficiently coordinating with her and other team members. During this conversation, Bennetts informed Sexton that she declined the ATL position. Sexton asked her to reconsider and give her a final answer on March 22. Sexton documented this discussion in a memorandum to Niemi. Again, the memorandum did not refer to the next disciplinary step that would follow.

On March 22, Bennetts informed Sexton that she accepted the ATL position. On March 23, however, Bennetts changed her mind after Sexton interrupted her conversation with Suzik. Angry that Bennetts' change of mind placed the Respondent in a predicament so close to the start of the new system, Sexton counseled her in writing on March 24. Bennetts was expected to improve her team participation, follow company policies and instructions from management, comply with the prior counseling regarding her conversations with Suzik, and take all production and quality-related issues through the appropriate supervisory chain. The next action if Bennetts did not meet the “improvements/standards” stated was suspension or termination.

During the critical weeks following her March 24 counseling, however, Bennetts' behavior did not improve. It is undisputed that she became boisterous on the plant floor, began singing and playing music loudly, and disrupting other employees. The last straw was when Bennetts circumvented Sexton and Wiemeri on April 15, and went straight to Scott Stephens with a production-related issue. 46 Sexton felt that Bennetts' action in going straight to Scott Stephens violated the guiding principles of communication and teamwork. After discussing these matters with Scott Stephens and Niemi, Wiemeri, and Sexton jointly issued a written counseling report, dated April 16, and gave it to Scott Stephens. The report outlined Bennetts' unacceptable behavior, including unprofessional treatment of other team members, disruptive behavior, failure to accept the ATL position, and failure to keep the team leadership informed of her concerns. The report also stated that she was to improve her behavior: adapt to the team environment; remain focused on her work; refraining from worktime conversations with Suzik; address problems through the proper chain of command; and return to work with a fresh perspective in order to retain her job. Bennetts' failure to meet such "improvements/standards” would require immediate termination for even the most minor infraction.

On April 20, Bennetts met with Scott Stephens, Niemi, Sexton, and Wiermeri. Bennetts was given the April 16 and 20 employee counseling reports. The April 20 employee counsel

ing report, which was generated by Scott Stephens, was similar to the April 16 report, except that it directed Bennetts to take 3 days of unpaid leave and return on April 23 with a written plan

a as to how she would change her behavior to address the Company's concerns. It was noted that her failure to submit such a plan would result in termination.

As scheduled, Bennetts met with Sexton, Wiemeri, and Niemi on April 23. Bennetts submitted a written plan, dated April 22, responding to the April 20 counseling report. Bennetts explained that she met with her counselor and determined the reasons for her behavior. The group was initially pleased with her plan to correct her behavior. However, Bennetts then digressed, brought up “old baggage,” and wanted the opportunity to "vent” whenever she felt it necessary. The group asked her to step outside, discussed the matter, and essentially decided to terminate Bennetts. They told her, however, that they needed a few days to think about it and that she should come back after the weekend. Bennetts met again with the group on April 26, at which time Niemi informed her that she was terminated.

Bennetts' termination occurred shortly after Wiemeri's disclosure to Sexton and other management that she sent the anonymous letter. Nevertheless, her termination was consistent with the Respondent's disciplinary approach toward similar conduct. From January 1, 2003, to December 31, 2004, the Respondent discharged 25 employees. Six of these terminations occurred between February 2003 and February 2004, and were for conduct and behavioral reasons similar to the grounds for Bennetts' termination. There is no doubt that the Respondent's management team was looking for a reason to fire her because of her support for the Union. The Respondent's desire to eliminate Bennetts as a proponent of a prospective union campaign, however, does not, of itself, render her termination illegal. Bennetts provided the Respondent with sufficient cause for dismissal by engaging in conduct that would, in any event, have resulted in termination. Bennetts was given numerous opportunities to correct her behavior and failed to take advantage of them. She was given one last chance to convince the Respondent that she would not be disruptive on the plant floor, but still insisted on the right to vent whenever she felt it necessary. By engaging in misconduct that did not also form the basis for her concerted protected activity, Bennetts pushed the proverbial envelope too far and, in the process, let the Respondent off the hook. Under the circumstances, the fact that the Respondent welcomes the opportunity does not make her discharge unlawful. Jackson Hospital Corp., 340 NLRB 536, 601-602 (2003). Accordingly, I shall dismiss this complaint allegation.

B. The 8(a) (1) Allegations Under Section 8(a)(1), it is an unfair labor practice for an employer to “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.” It is well established that, in determining whether an employer has violated Section 8(a)(1), the test is objective, not subjective. Multi-Ad Services, 331 NLRB 1226, 1228 fn. 9 (2000). Animus toward the Union is not a required element of 8(a)(1) violations. Rather, the test is whether the employer's conduct may reasonably be seen as tending to interfere with Section 7 rights.

Williamhouse of California, 317 NLRB 699, 713 (1995); American Freightways Co., 124 NLRB 146, 147 (1959).

1. Threats On April 15, Scott Stephens threatened Bennetts that she would “get burned” if she was going to act as a spokesperson regarding employee issues. The context of Scott Stephens' remark, after Bennetts' explanation that other employees were also concerned about the qualifications of their supervisors and inadequate help with their jobs, was clear: If she insisted in speaking on behalf of other employees, she was likely to incur adverse action from management. Threatening employees with unspecified reprisals if they engage in union or other concerted protected activities has repeatedly been found to have a coercive effect on employee Section 7 activity. United Scrap Metal, Inc., 344 NLRB No. 55, slip op. at 6 (2005). This includes threats that explicitly or implicitly threaten employees with job loss or other negative consequences. Holsum de Puerto Rico, Inc., 344 NLRB No. 85, slip op. at 18 (2005); Sheraton Hotel Waterbury, 312 NLRB 304, 305 (1993). Under the circumstances, I find that Scott Stephens's remarks on April 15, violated Section 8(a)(1) by threatening Bennetts with unspecified reprisal if she acted as a spokesperson for other employees' problems.

Mark Stephens was quite assertive in his statements opposing a potential union campaign. At the April shift meetings and the May annual meeting, he was extremely annoyed at the prospect of another union campaign, told employees he felt betrayed, and insisted that the Respondent could not afford to have another union vote. Mark Stephens also noted that customers did not like unions, implied that the plant would lose business if the Union came in, and insisted he would not have anything to do with a union in the plant. At the May meeting, Mark Stephens advised employees to quit if they were not happy with their jobs or did not trust management. Under the circumstances, Mark Stephens violated Section 8(a)(1) in several respects. First, his statement that he felt betrayed implied that employees engaged in union activity were disloyal and conveyed a sense of unspecified reprisals. Hialeah Hospital, 343 NLRB 391, 391–392 (2004). Second, it is illegal to tell employees interested in organizing to quit. Paper Mart, 319 NLRB 9, 9 (1995). Third, it was an unfair labor practice for Mark Stephens to predict that the Respondent would lose customers if it affiliated with a union since his statement was not based upon demonstrably probable consequences beyond its control. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Respondent introduced evidence that customer sales dropped 23 percent after the 1996 union election. However, there is no indication that the Union prevailed in that election and, given the lack of credibility that I placed in Mark Stephens, I do not rely on his conclusion that the sole reason for a drop in business at that time was the prospect that the Respondent might unionize. Under the circumstances, I find that Mark Stephens' remarks at the April shift meetings and the May annual meeting violated Section 8(a)(1) by threatening employees with the loss of their jobs if they supported union activity.

In mid-May, Lorenson, a team leader, told Michael Bennetts that he felt "betrayed” and “really felt hurt” by his union activity. Lorenson's remark was based on the fact that he helped Michael Bennetts get hired a year earlier and recently learned that he had been distributing union literature in the employee workroom. Lorenson asked Michael Bennetts to hold "his feelings a little bit” about the Union. He told Michael Bennetts “to choose a way” and noted that he “would know the best way to choose.” Under the circumstances, Lorenson's statement clearly referred to the future, constituted an implied threat toward Michael Bennett's continued employment, and violated Section 8(a)(1).

2. Restriction on employees' Section 7 rights“? Michael Bennetts testified that Ramme, his supervisor, approached him on the production floor and initially asked him not to discuss the Union on the plant floor because he was working alongside an antiunion employee. Michael Bennetts enlightened Ramme as to the fact that other nonwork-related discussions were permitted. Ramme, obviously seeking to avoid disruption of plant operations, explained that he did not mind Bennetts discussing the Union, but “just to keep it to a minimum.” As laudable as Ramme's intentions were, his directive that Michael Bennetts keep union-related discussion to a minimum violated Section 8(a)(1) of the Act. It is unlawful for an employer to restrict conversation about union matter during worktime while permitting conversations about other nonwork matters. Emergency One, Inc., 306 NLRB 800, 806 (1992); Magnolia Manor Nursing Home, 284 NLRB 825, 829 (1987).

3. Interrogation of employees The credible evidence established that Sexton approached her team employees on May 5, and asked their opinions of the Union. Kantala's testimony that she approached him and asked his opinion of the Union was corroborated by Sexton's e-mail to Scott Stephens later that day reporting that Wiemeri and two others stated their opposition to the Union. Questioning employees about union activities or union sympathies in a manner that reasonably tends to restrain, coerce, or interfere with Section 7 rights constitutes unlawful interrogation. Rossmore House, 269 NLRB 1176, 1177 (1984); NLRB v. Shelby Memorial Hospital Assn., 1 F.3d 550, 559 (7th Cir. 1993). Circumstances to be considered in determining whether questioning rises to the level of reasonably tending to restrain include whether the employee was an open and active supporter of the union, the nature of the information sought, the identity of the questioner, and the place and method of interrogation. Sunnyvale Medical Clinic, 277 NLRB 1217, 1219 (1985). There is no indication that Sexton knew Kantala's position beforehand, but she sought his opinion of the Union, was a supervisor and conducted the inquiry in the workplace. Furthermore, her inquiry took place a few weeks after Mark Stephens' threatening statements at the April shift meetings and 2 days after he sent the

*? I do not address the legal consequences of Lorenson's remark that he wished Michael Bennetts “would have held back his feelings a little bit,” since the illegal consequences of this statement are subsumed by the prior conclusion that Lorenson's statements constituted an illegal threat.

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May 3 letter reinforcing the Respondent's strong antiunion position. Under the circumstances, Sexton's questioning violated Section 8(a)(1). Jefferson Smurfit Corp., 325 NLRB 280, 285 (1998).

4. Solicitation of grievances The General Counsel contends that Sexton's May 5 e-mail also reveals evidence that she unlawfully solicited grievances from employees and implicitly promised to remedy their grievances. The Board has held that an inquiry regarding an employee's complaints are prohibited, coercive conduct if it carries an implied promise to remedy those concerns if employees discontinue union activity. The Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069, 1090–1091 (2004); Orbit Lightspeed Courier Systems, Inc., 323 NLRB 380 (1997); Reno Hilton, 319 NLRB 1154, 1156 (1995); Reliance Electric Co., 191 NLRB 44, 46 (1971). There is no evidence, however, as to whether Sexton solicited grievances or the complaints were volunteered. Nor is there any evidence of a promise by Sexton to resolve such grievances. Accordingly, I shall dismiss this complaint allegation.

5. Surveillance of employees An employer's surveillance of union organizing meetings attended by its employees constitutes an unfair labor practice. Athens Disposal Co., 315 NLRB 87, 98 (1994); Action Auto Store, 298 NLRB 875, 887 (1990). It is undisputed that Sexton knew when and where the May 6 union organizing meeting would be held and that she drove to the vicinity of the meeting place beforehand and observed Sexton enter the building. Sexton's testimony that it was merely coincidental that she observed Bennetts as she drove to her bank's ATM machine was not credible. She sent two e-mails to Scott Stephens about the union meeting later that day. The first e-mail reported her observation of Bennetts at the meeting location. The second e-mail passed along Wiemeri's report as to what Jarvenpaa observed at the same meeting. Taken together with her interrogation of employees on the plant floor, they are convincing proof that she went to that location intending to conduct surveillance. Under the circumstances, Sexton's surveillance of employee union activity on May 6 constituted a violation of Section 8(a)(1).

6. Impermissible assistance The General Counsel also asserts that the Respondent unlawfully assisted Jarvenpaa, an antiunion employee, by providing him with a list of employees and permitting him to collect signatures during worktime. An employer violates Section 8(a)(1) by providing assistance to employees, openly opposed to the Union, that it has not provided to other employees, or would not normally provide. R.P.C., Inc., 311 NLRB 232, 248 (1993), citing Duncan Heating Corp., 254 NLRB 112, 118 (1981). Conversely, it is not unlawful for an employer to provide an employee list when similar lists are readily available to all employees. Times-Herald, Inc., 253 NLRB 524 (1980).

It is uncontroverted that Jarvenpaa requested and received Scott Stephens' permission to obtain an employee list from the payroll department in order to start an antiunion petition. The evidence also established that Scott Stephens knew that Jarven

paa intended to approach other employees about signing the petition during worktime and that he, in fact, did so. There was no proof, however, that Bennetts or any other prounion employees requested employee information, much less that they were denied. Nor was I swayed by the General Counsel's point that the Respondent would have refused such a request because of its vague "common sense” approach toward the release of employee information. Scott Stephens merely testified that an employee's personal information, such as tax withholding and disciplinary records, would not likely be disclosed to another person upon request. Furthermore, the Respondent's acquiescence in permitting Jarvenpaa to solicit signatures against the Union was consistent with the Respondent's policy of permitting other types of solicitation in work areas during worktime. Finally, the fact that Lorenson violated Section 8(a)(1) by telling Michael Bennetts to minimize union-related discussion on the plant floor is of no consequence here, as there is no indication that Lorenson's misguided attempt to keep order on the plant floor had any reflection on the Respondent's policy toward the dissemination of employee lists. Accordingly, I shall dismiss this complaint allegation.

CONCLUSIONS OF LAW 1. The Respondent, Ironwood Plastics, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act.

3. By threatening an employee with unspecified adverse consequences if she acted as a spokesperson for other employees' work-related problems, threatening employees at group meetings with the loss of their jobs if they supported union activity, threatening an employee that it was a betrayal and hurtful for him to support the Union and then telling him that he "would know the best way to choose,” restricting conversation about union matters during worktime while permitting conversations about other nonwork matters, keeping its employees' union activities under surveillance, and coercively interrogating them about their support for the Union, the Respondent violated Section 8(a)(1).

4. The aforementioned unlawful conduct engaged in by the Respondent constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.

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

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

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

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 no- tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

The Respondent, Ironwood Plastics, Inc., Ironwood, Michigan, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees with the loss of their jobs and other unspecified reprisals for engaging in union or other protected concerted activities, restricting employees' exercise of their Section 7 rights, interrogating employees about their support for a union, and engaging in surveillance of employees' union activities.

(b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days after service by the Region, post at its facility in Ironwood, Michigan, copies of the attached notice marked “Appendix.°49 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 15, 2004.

(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities WE WILL NOT threaten you with the loss of your job or other unspecified reprisals for supporting International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO or any other union, or engaging in any other form of protected concerted activity.

WE WILL NOT restrict your Section 7 union or other protected concerted activities.

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

WE WILL NOT engage in the surveillance of your union or other protected concerted activities.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

cant. The application includes a sealed envelope labeled “Confidential Financial Information” that was served in accordance with Board Rule Section 102.147. Applicant's motion to withhold the balance sheet from public disclosure pursuant to Board Rule Section 102.147(g)(2) was granted on July 6, 2004.

The General Counsel filed a timely motion to dismiss the application with supporting argument. The Applicant filed a response to the motion with supporting argument and the General Counsel filed a reply. The motion to dismiss was denied. The General Counsel then filed a timely answer to the application and the Applicant filed a reply.

The General Counsel denies that the Applicant is EAJA eligible and contends that an EAJA award should be denied on the ground that the unfair labor practice proceeding was substantially justified.

I. APPLICANT'S EAJA ELIGIBILITY The standards for determining whether the Applicant is eligible to receive an EAJA award are found in Board Rule Section 102.143, which in relevant part provides:

(c) Applicants eligible to receive an award are as follows:

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND SCHAUMBER On May 12, 2005, Administrative Law Judge Thomas M. Patton issued the attached supplemental decision. The General Counsel filed exceptions and a supporting brief, the Applicant filed an answering brief, and the General Counsel filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified below.?

ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Applicant, Arizona Mechanical Insulation, LLC, Hereford, Arizona, shall be awarded $9700.04 pursuant to its Equal Access to Justice Act application. John Giannopoulos, Esq., for the General Counsel. Doug Tobler, Esq. (Hammond & Tobler, P.C.), of Phoenix,

Arizona, for the Respondent. Don A. Peterson, of Phoenix, Arizona, for the Charging Party.

EQUAL ACCESS TO JUSTICE THOMAS M. PATTON, Administrative Law Judge. On May 20, 2004, the National Labor Relations Board issued an Order in this proceeding, dismissing the complaint (the Decision). On June 8, 2004, the Respondent filed an application for an award of attorney's fees and expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C. Section 504, and Section 102.143 through 102.155 of the Board's Rules and Regulations. On June 15, 2004, the Board referred the matter to the undersigned for further appropriate action.

The application is verified by Monica Schwarz, a member of Arizona Mechanical Insulation, LLC (herein AMI), the Appli

(5) any other partnership, corporation, association, unit of local government, or public or private organization with a

net worth of not more than $7 million and not more than

ceeding. The verified application states that Applicant is a limited liability corporation engaged in mechanical insulation; that at the time the charge was filed Applicant had two employees; that the employees were working in southern Arizona; that Applicant has no affiliates; and that at the time the adversary adjudicated proceeding was initiated Applicant's net worth was less than $7 million. The application asserts that Applicant qualifies for an EAJA award. The financial information consists of a balance sheet in typical form. It details the assets, liabilities, and equity of the Applicant. The balance sheet is on an accrual basis and reflects the situation as of March 31, 2003.

In her affidavit Monica Schwarz states, based on personal knowledge, that the facts stated in the application and the balance sheet are true and accurate,

The General Counsel denies that the Applicant is eligible to receive an EAJA award. The answer states:

[The statement] that the Applicant is an eligible party under EAJA, is denied as the General Counsel is without sufficient knowledge or information to form a belief as to the truth of the allegation. In its application the Applicant has included a statement that its net worth is less than seven million dollars, and has provided a one-page balance sheet, which is under seal by order of the ALJ, to substantiate its assertion. However, the balance sheet does not satisfy the evidentiary requirements needed to properly authenticate such a document.

No exceptions were filed to the judge's finding that the Applicant is eligible to receive an award of fees and expenses.

? The Applicant seeks an additional $1297.50 for attorneys' fees incurred in responding to the General Counsel's exceptions. We find that the Applicant is entitled to these additional fees, and we shall add this amount to the $8402.54 awarded by the judge for a total award of $9700.04. DeBolt Transfer, 271 NLRB 299, 300 (1984) (amount of recovery may include the time spent securing the right to the award).

the date of the complaint in an unfair labor practice proceeding

.” The rule does not require that the financial statement reflect the net worth on a particular day, so long as the financial statement and the other evidence show that the Applicant had a net worth of not more than $7 million on the day the complaint issued. Shell Ray Mining, supra. While the balance sheet shall remain under seal, it is appropriate to disclose that the net worth of the applicant, however measured, was less than 1 percent of the $7 million EAJA limit on the day the charge was filed.' I conclude that the Applicant had a net worth of less than $7 million on the day the complaint issued based on the balance sheet, the verified application, the affidavit of Monica Schwarz, the evidence regarding the operations of the Applicant in the unfair labor practice case, the related findings in the Decision and reasonable inference.

The application states that on the day the charge was filed the Applicant had two employees. As noted above, the affidavit of Monica Schwarz states, based on her personal knowledge, that the application truthfully and accurately states the number of employees. I conclude that the Applicant had no more than 500 employees on the day the complaint issued based on the verified application, the affidavit of Monica Schwarz, the findings in the Decision, the record of the hearing and reasonable inference.

The Applicant could be given an opportunity to supplement the application to state the precise net worth and number of employees on the day the complaint issued, pursuant to Board Rules Section 102.147(f) and Section 102.152(a). That procedure is not warranted because it is obvious that the Applicant is EAJA eligible and the denial of knowledge and information by the General Counsel does not appear to be reasonably based.

Based on the foregoing, I conclude that the evidence shows that the Applicant is eligible for an EAJA award.

The answer does not otherwise explain the denial of EAJA eligibility. There is no showing of an objective basis for the asserted lack of knowledge. The issue of EAJA eligibility was not addressed in the motion to dismiss. In addition to the denial of the Applicant's statement regarding its EAJA eligibility, the answer separately pleads, as an affirmative defense, “The applicant does not meet the eligibility requirements for an EAJA award.” The General Counsel has provided no explication of this affirmative defense.

In its reply to the answer, the Applicant's attorney reviewed the evidence it had submitted regarding the Applicant's EAJA eligibility and then objected to the answer as follows:

If General Counsel has some secret reason for believing that the requirements have not been met, Applicant would be more than willing to provide any additional information that General Counsel believes is necessary. In the absence of General Counsel's candor on this subject, it is impossible to satisfy its

unknown complaints. The Applicant thus contends, in substance, that it was provided insufficient information to permit it to amend the application, if Applicant's assertion of EAJA eligibility was deficient. See U.S. v. Hristov, 396 F.3d 1044 (9th Cir. 2005), and cases cited therein. See also Scarborough v. Principi, 541 U.S. 401 (2004).

The answer does not sufficiently describe deficiencies regarding the Applicant's EAJA eligibility. In this regard, Board Rule Section 102.150(c) provides, “The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the General Counsel's position.” Because the answer does not comply with the requirements of Section 102.150(c), I find that Applicant's EAJA eligibility is established

Assuming, without deciding, that the merits of the EAJA eligibility issue should be considered, I shall address matters that may be raised on exceptions, to avoid the necessity of a remand regarding this issue.

The somewhat cryptic assertion that the balance sheet does not satisfy the evidentiary requirements needed to properly authenticate such a document can be read as a contention that there is a requirement that a document like the balance sheet be self-authenticating. That is not an EAJA requirement and is not a basis for dismissing the application.

The affidavit of Monica Schwarz, based on her personal knowledge, that the balance sheet truthfully and accurately states the facts regarding the Applicant's business is sufficient to authenticate the balance sheet. Because of her role in the operation of AMI, Monica Schwarz was in a position to have personal knowledge of the truth of the contents of the balance sheet. She worked in the office in the Schwarz home and handled business matters for AMI and her husband worked with the tools. The balance sheet has been sufficiently authenticated by Monica Schwarz. Fed. R. Evid. 901(b)(1); Shell Ray Mining, 297 NLRB 53 (1989).

The balance sheet is on an accrual basis and reflects the situation as of March 31, 2003. Board Rule Section 102.143(d) provides, “For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of

The Applicant is entitled to be reimbursed an award of attorney's fees and expenses unless the General Counsel has established that the issuance of the complaint and the subsequent litigation were substantially justified. The standards and authority for determining whether the Applicant is entitled to an EAJA award are summarized as follows in David Allen Co., 335 NLRB 783, 784785 (2001):

Under EAJA, a party who has prevailed in litigation before a Federal government agency is entitled to an award of attorney's fe

and expenses incurred in litigation unless the government can establish that its position was “substantially justified.” Blaylock Electric, 319 NLRB 928, 929 (1995). The United States Supreme Court, in Pierce v. Underwood, 487 U.S. 552 fn. 2 (1988), defined the phrase "substantially justified” as meaning "justified to a degree that could satisfy a redsonable person” or “justified if a reasonable person

could think it correct, that is, if it has a reasonable basis in law and fact.” Further, the fact that the Government did not prevail on the merits does not give rise to a presumption that its position

was unreasonable, and the "substantially justified" standard does not require the Government to establish that its decision to litigate was based on substantial probability of prevailing. Carmel Furniture Corp., 277 NLRB 1105, 1106 (1985). The Government's position can still be deemed reasonable in fact and law notwithstanding that the General Counsel failed to establish a prima facie case. Id. However, where the General Counsel presents evidence, which, if credited by the fact finder, would constitute a prima facie case of unlawful conduct, the General Counsel's position is deemed to be substantially justified within the meaning of EAJA. SME Cement, Inc., 267 NLRB 763 fn. 1 (1983). Credibility issues which are not subject to resolution by the General Counsel in the investigative stage of a proceeding on the basis of documents or other objective evidence are, in the first instance, the exclusive province of the administrative law judge. Accordingly, where the General Counsel is compelled by the existence of a substantial credibility issue to pursue the litigation, and thereafter presents evidence which, if credited, would constitute a prima facie case, the General Counsel's case has a reasonable basis in law and fact and is substantially justified. Barrett's Contemporary & Scandinavian Interiors, 272 NLRB 527

(1984). The only violation alleged was that the Applicant refused to execute or abide by a labor agreement negotiated in 2002 between Western Insulation Contractors Association (the Association) and International Association of Heat and Frost Insulators and Asbestos Workers, Local 73, AFL-CIO (the Union). The evidence did not establish that Applicant was bound by group bargaining and the complaint was dismissed. The General Counsel contends that the agency's position was substantially justified.

The EAJA issue is whether the agency's position that AMI had made a binding commitment to group negotiations was one "a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552 fn. 2 (1988).

The General Counsel and the Applicant each acknowledge that the concurring opinion of Justice Stevens in Charles D. Bonanno Linen Service, 454 U.S. 404, 419_420 (1982), sets forth the standards for determining whether an employer or a union has made a binding commitment to group negotiations. See Detroit Newspaper Agency, 326 NLRB 782 (1998); Painters District Council 51 (Managanaro Corp.), 299 NLRB 618 (1990). In Bonanno Linen, Justice Stevens wrote:

The mere fact that an employer bargains in conjunction with other employers does not necessarily mean that it must sign any contract that is negotiated by the group. The Board requires that, to be bound by the terms of group negotiation, the members of an employer association must have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than individual action, and the union representing their employees must (have) been notified of the formation of the group and the delegation of bargaining authority to it, and (have) assented and entered upon negotiations with the group's representative. (Internal quotation marks and citations omitted.)

The decision dismissing the complaint includes the following findings:

Monica Schwarz and representatives of five other employers attended the initial July 29 meeting. The initial meeting was at the union hall. Four of the six employers who participated in the July 29 meeting were WICA members. The attendance sheet that was signed by Schwarz at that meeting had "WICA” written at the top. Schwarz credibly testified that when she signed the attendance sheet she did not associate WICA with Western Insulation Contractors Association and that she was unfamiliar with the organization prior to the 2002

negotiations. The General Counsel contends that if Monica Schwarz'testimony that she did not associate the WICA acronym with the Association when she signed the initial attendance sheet had not been credited, a violation would arguably have been found.

The General Counsel also points to the crediting of Schwarz's testimony that she was unfamiliar with the Association prior to the 2002 negotiations. The Decision concludes that the only probative evidence that AMI possessed information regarding the identity of Western Insulation Contractors Association/WICA prior to the 2002 negotiations were the references to that organization in the union agreements Monica Schwarz signed in 1999.

The questions of Monica Schwarz'mentally associating WICA with the Association when she signed an attendance sheet at the initial meeting and her familiarity with the Association prior to the negotiations were not substantial credibility issues. The testimony on these matters was of marginal significance in determining whether the evidence as a whole met the Bonanno Linen standards. David Allen Co, supra. I attached little significance to those matters and neither was an important factor in my concluding that AMI was not bound by group action. Cf. Golden Stevedoring Co., 343 NLRB 115, 117 (2004). That testimony is not mentioned in the analysis portion of the decision. The decision was based on the objective evidence relevant to the issue of AMI's intent to be bound by

The complaint alleged and the answer denied that AMI was a member of the Association. Schwarz testified that AMI was never a member of the Association. Bryan E. Rymer Jr., an official of the Association and the chief negotiator was a witness for the General Counsel. Rymer testified that AMI was not an Association member. There has been no showing that the Government had substantial probative evidence that AMI was an Association member.

The complaint alleged and the answer denied that in September 1999, when AMI entered into an interim agreement with the Union, it agreed to be bound to future industry agreements, which were negotiated between the Union and Association. In fact, there was no basis to conclude that the terms of the interim agreement included an agreement by AMI to be bound to the 2002 Agreement. There has been no showing that the Government had evidence to support such a contention. Indeed, the Decision only assumes, without finding, that the other employers that participated in the 2002 negotiations were bound by group action.

Page 8

fer, AMI did not withhold evidence that was then disclosed at the hearing to defeat the Government's case. The dismissal of the complaint against AMI was the consequence of an absence of substantial probative evidence of a violation. A respondent is not presumptively barred from receiving an EAJA award because respondent witnesses are not made available for affidavits taken by a Board agent.

In summary, the dismissal was not based on resolutions of disputed issues of fact. Rather, the Decision was based on uncontroverted facts, which were known or should have been known to the Government. The case did not turn on novel questions of law. The complaint was dismissed on the basis of settled decisional authority. I find that General Counsel's position was not reasonable in law or fact and that there are no special circumstances that would make an award unjust.

The General Counsel contends that evidence was presented that a reasonable person might accept as adequate to support the allegation that the applicant indicated an unequivocal intention to be bound by group bargaining. The “reasonable person" standard is not a subjective test. The General Counsel must show that the Government's position had a "reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552 fn. 2 (1988). The position of the General Counsel is inconsistent with the requirement that an employer's intent to be bound by group bargaining be clear and unequivocal. Moreover, the General Counsel's argument is inconsistent with the Court's conclusion that absent “an unequivocal commitment to be bound by group action, an employer is free to withdraw from group negotiation at any time, or simply to reject the terms of the final group contract." Charles D. Bonanno Linen Service, 454 U.S. 404, 419_420 (1982).

Much of the General Counsel's argument on the EAJA question amounts to a contention that the unfair labor practice case was wrongly decided. In particular, the General Counsel contends that the administrative law judge misread and misapplied the case law relied on by the General Counsel. I find it unnecessary to expand on or further explain the Decision.

The General Counsel contends that if the Applicant had made witnesses available during the investigation “perhaps a complaint may not have issued.” General Counsel argues, based on C.I. Whitten Transfer Co., 312 NLRB 28, 29 (1993), “Respondent cannot now rely on its own lack of cooperation to support its application for attorney's fees pursuant to Equal Access to Justice Act.” The General Counsel does not explain how the decision to issue complaint could have been affected by such witnesses.

On June 3, 2003, during the administrative investigation, the investigator sent a letter to AMI that stated in part:

Along with providing a position statement and witnesses, you may also submit any other evidence, affidavits, or documents you consider relevant. However, providing affidavits not taken by a Board Agent does not constitute full cooperation within the meaning of the Equal Access to Justice Act. If you choose not to reply to this request, the Regional Director will make his decision based upon the evidence available. Accordingly, I ask that you present the evidence requested and any other evidence that you may wish to submit, including any relevant witnesses for the purpose of giving affidavits, by the close of business on June 18, 2003, so that the Regional Di

rector may consider such evidence. June 18, Monica Schwarz responded with a 3-page statement of position and 15 pages of exhibits. Schwarz closed with the following, "Feel welcome to contact me directly for additional information or clarification. I can arrange to meet with you personally to discuss the depth of our concerns further.” The record does not indicate that there was further communication with AMI before decision was made to issue complaint. It was a 4-hour drive from Hereford to Phoenix and Schwarz was employed as a schoolteacher in Hereford. It was not unreasonable for Schwarz to try initially to resolve the charge by mail.

In any event, the rationale of Whitten Transfer has little relevance to the present case. Unlike the situation in Whitten Trans

Board Rule Section 102.145 provides in relevant part that awards will be based on rates customarily charged by attorneys, subject to a limitation of $75 per hour, plus reasonable expenses. The Applicant has submitted verified detailed billing statements of its attorney. AMI has been charged at an hourly rate of $250 per hour for attorney time and $200 for 1 hour of paralegal time. AMI has also been billed for expenses of postage, FedEx delivery, photocopying, parking, processor fees for subpoena service, messenger service, and online legal research, The fees and expenses claimed were all incurred after the issuance of the complaint. The original application was supplemented to include fees and expenses incurred in the prosecution of the EAJA application, which are recoverable. See DeBoli Transfer, 271 NLRB 299 (1984). The General Counsel has not challenged the Applicant's fees and expenses. I have reviewed the fees and expenses sought and find that they are allowable under Board Rule Section 102.145, subject to the $75 ceiling on attorney fees.

The Applicant has not made a request to the Board, by application for rulemaking or otherwise, for an increase in the allowable hourly rate of $75. Absent such a request and a favorable ruling by the Board, I am without authority to consider the Applicant's request for attorney's fees higher than the maximum provided by the EAJA and the Board's Rules and Regulations. Accordingly, I shall compute the Applicant's attomey's fees and paralegal fees at the hourly rate of $75. The allowed hourly rate is without prejudice to the Applicant to file a petition to raise the hourly rate, pursuant to Board Rule Section 102.146.

The attorney billing reflects the chargeable time in hours and tenths of an hour. The following is a summary of the hours billed, the allowable amounts based on an hourly rate of $75 and the expenses claimed relative to defending the issues raised by the complaint and handling the EAJA application: (1) Attorney time 74.4 hours

$6330.00 (2) Paralegal time 1.0 hours

75.00 (3) Expenses

1997.54 Total

$8402.54

North Hills Office Services, Inc. and Service Employ

ees International Union, Local 32BJ, AFLCIO.' Case 29-CA-26546

November 30, 2005

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND SCHAUMBER On March 31, 2005, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a response.

The National Labor Relations Board has considered the decision and the record in light of the exceptions, brief, and response and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

Alvarez approached Perez' car and said to Perez, “You must leave the property if you want to talk to them.” Alvarez told Perez that she could continue her conversation off the property only 25 feet away. Perez complied. The next day, Alvarez reminded Perez of the Respondent's rules. Alvarez testified that Pall Corporation told him to be "very careful" with nonemployees on the property because the building was considered a terrorist attack target.

The issue is whether, as alleged in the complaint and found by the judge, the Respondent violated Section 8(a)(1) of the Act by instructing an employee not to speak with union representatives who were not authorized to be on the property in question. The judge, although acknowledging that the Respondent would not have violated the Act by telling the union organizer to leave the property, nonetheless concluded that the Respondent could not legally tell its own employees not to talk to a union organizer about union business while on the property during their nonwork time. We disagree.

II. ANALYSIS It is well established that an employer may take reasonable steps to ensure that nonemployees are prevented from trespassing on its property. See NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956). The General Counsel contends, and the judge found, that the Respondent was not lawfully denying access to nonemployees but was instead restricting its employee from engaging in Section 7 activity, which is unlawful absent special circumstances. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), citing Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944).

The Employer is a cleaning contractor that services office buildings in the New York/New Jersey Metropolitan area. The Respondent employs about 400 cleaning employees who work at various locations. The location at issue, 25 Harbor Park Drive, Port Washington, New York, is occupied by Pall Corporation, a company that manufactures and distributes filtration devices.

About May 2004, the Charging Party Union commenced an organizing drive among the Respondent's employees at its various locations. Ruth Perez, an employee at the Pall Corporation location, spoke with a union organizer in the parking lot of the building after her shift sometime in June, and was observed doing so by Supervisor Policarpio Cruz. On the following day, Cruz told Perez that he had been informed by the facility security guard that Perez was talking to a nonemployee on company property. Cruz reminded Perez, "we have to follow building norms and, (you cannot talk] with members of 32BJ or any other stranger inside the parking lot.” Cruz informed Perez that she had every right to talk to anyone she wanted but not on the company's property. The Respondent maintains a rule stating, “No unauthorized personnel on the job at any time. (This includes children[.]) Only people who are employed by North Hills Office Services can be on the property.”

Perez had another conversation with a union organizer while in her car in the parking lot after her shift sometime in July. Field Supervisor Angel Alvarez saw Perez talking to someone he assumed to be a union organizer.

The facts are as found by the judge, augmented by the undisputed facts in the record. We note that the judge made two inadvertent errors. First, the judge stated that the facility at issue is located in Port Jefferson. Second, the judge found that Cruz admitted telling Perez that a security guard informed Cruz that Perez was talking to someone on company property, but Cruz' testimony does not support this finding These inadvertent factual discrepancies do not affect the result in this

* The complaint also alleged that the Respondent created the impression of surveillance, interrogated employees about their union activities, and threatened employees with discharge and with stricter enforcement of company rules because they supported the Union. The judge dismissed these allegations, and there were no exceptions to these dismissals.

There was no exception to the judge's finding that the Respondent had the right to prevent nonemployees from trespassing on the property, which the Respondent did not own. The Respondent provided services for a company that occupied the property.

Although not necessary for our analysis here, we note that the Union had alternative channels of communication available to reach employees.

The burden is on the General Counsel to prove by a preponderance of evidence that the Respondent's conduct violated Section 8(a)(1) by interfering, restraining, or coercing Perez in the exercise of her Section 7 rights. Assuming that Perez was engaged in Section 7 activity when she spoke with union organizers, the General Counsel still failed to prove a violation here.

The Respondent, through Supervisors Cruz and Alvarez, simply reminded Perez of the Company's rule prohibiting access to the property by unauthorized personnel,' and requested that she not abet violations of that rule by engaging in conversations with trespassers on the property. The fact that the Respondent directed its admonition to the employee, rather than to the union organizer, does not change the result. We find the judge's and our colleague's distinction elevates form over substance -there is no meaningful difference between the Respondent's telling the union organizer to leave the property and the Respondent's telling Perez to stop talking to the union organizer while on the property. In both instances, the purpose and effect of the instruction is to obtain compliance with a property restriction, one that does not impermissibly restrict Section 7 activity.

Our colleague points to cases which emphasize the distinction between employees and nonemployees. However, that distinction, as applied in those cases, means that employees have a Section 7 right to speak with other employees on company property (at appropriate times and places), but nonemployees do not have the right to even be on company property and thus, necessarily, have no right to speak with employees on company property. It is thus clear that the Respondent could tell the nonemployee to leave the property. The necessary consequence of this ouster of the nonemployee would be that the nonemployee would not be able to speak with the employee on company property. In view of this, we see no meaningful distinction between directing the nonemployee to leave the property and directing the employee to not talk to the nonemployee.

Our finding that the Respondent was not interfering with its employee's rights is confirmed by the supervi

sors' statements. Alvarez told Perez that she could continue her conversation with the union organizer off the property only 25 feet away, and Perez complied. Similarly, Cruz told Perez that she could talk to anyone she wanted, but not on the property. These statements demonstrate that the Respondent was not restricting Perez from engaging in Section 7 activity. Instead, Cruz' and Alvarez' statements constituted a request that Perez not undermine a legitimate prohibition that was consistent with its work rules and its client's safety concerns, while at the same time acknowledging Perez' rights.

We do not disagree with our colleague on the law. However, because we find the Respondent's conduct effectively was directed at the nonemployee trespasser's presence on the property, we find inapposite the cases she cites addressing no-access rules enforced against employees who exercise their Section 7 rights on company property. Our colleague does not consider the lack of evidence that the Respondent in any manner restricted employees in the exercise of Section 7 activity when the activity did not involve trespassers. Additionally, she ignores a fact we find telling--that Perez could, and in fact did, continue her conversation off the property. Accordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act, and we reverse the judge and dismiss the complaint.

ORDER The complaint is dismissed. MEMBER LIEBMAN, dissenting.

The Respondent contends that it legitimately enforced a rule barring property access to strangers. However, it enforced the rule not against a (nonemployee) stranger, but against an employee who was lawfully on the property and engaged in protected activity. The majority agrees with the Respondent that its conduct was lawful, finding no significant difference whether the no-access rule is enforced against an employee or a stranger to the property. However, "[t]he distinction is one of substance.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956)

On two occasions in the midst of a union organizing drive, the Respondent's supervisors told employee Ruth Perez that she was not permitted to speak to visitors in the building parking lot. Perez was off-duty in each instance, and the supervisors were aware that the visitors she spoke with were union organizers. Although the Respondent argues that it was merely enforcing a rule prohibiting strangers on the property, in neither case did it attempt to eject the union organizers.

There are no exceptions to the judge's finding that the rule was lawful.

8 As there is no meaningful distinction between telling the union organizer to leave the property, and telling Perez to refrain from talking to him, we disagree with our colleague's assertion that the Respondent did not "seek to enforce the no-access rule against an asserted trespasser” and that the Respondent “tolerated the union organizer's presence on its property." We find that the Respondent did in fact "seek” to enforce its no-access rule against the trespassing union organizer by telling Perez not to talk to the union organizer while on its property. Thus, contrary to the dissent, we do not conclude that the Respondent tolerated the union organizer's presence on its property.

STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Brooklyn, New York, on February 15, 2005. The charge in this case was filed on September 27, 2004, and the complaint was issued on December 22, 2004. It alleged

1. That on or about June 3, 2004, the Respondent, by its Supervisor Policarpio Cruz, (a) prevented employees from speaking with union representatives in the parking lot, (b) created the impression of surveillance, and (c) interrogated employees about their union activities.

2. That in July 2004, the Respondent, by its Supervisor Angel Antonio Alvarez, prevented employees from speaking to union representatives in the parking lot.

3. That in July 2004, Alvarez threatened employees with discharge and with stricter enforcement of company rules because they supported the Union.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the brief filed, I make the following

FINDINGS OF FACT

Employers generally have a property right to exclude nonemployee union organizers from company property." But different considerations apply with respect to employees who exercise their Section 7 rights on the employer's property. As the Board has explained, citing a long line of precedent:

In an unbroken line of decisions, this Board and the Supreme Court have stated that, where an employee exercises his Section 7 rights while legally on an employer's property pursuant to the employment relations, the balance to be struck is not vis-à-vis the employer's property rights, but only vis-à-vis the employer's managerial rights. The difference is "one of substance,” since in the latter situation Respondent's managerial rights prevail only where it can show that the restriction is necessary to maintain production or discipline or otherwise prevent the dis

ruption of Respondent's operations. The Firestone Tire & Rubber Co., 238 NLRB 323 (1978) (citations omitted). As in Firestone Tire, the facts here clearly reveal that the Respondent's managerial interests were not threatened in any way by Perez' off-duty parking lot conversations with union organizers. As the judge found, the Respondent has not proved any special circumstances here to justify the restriction on employee protected activity. See, e.g., International Business Machines Corp., 333 NLRB 215, 221 (2001), enfd. 31 Fed. Appx. 744, 2002 WL 451783 (2d Cir. 2002) (unpublished).

In contrast, what the Respondent has established is a pretext for interference with protected rights. In neither instance did it seek to enforce the no-access rule against an asserted trespasser. Instead, the Respondent used the rule in a manner that clearly had the effect of restraining Perez' protected activity during an organizing drive. Indeed, the Respondent's asserted concern with property rights, endorsed by the majority, is completely at odds with the fact that the Respondent actually tolerated the union organizer's presence on the property. What it clearly did not tolerate was its employee talking to a union organizer. Thus, contrary to the majority, the Respondent was not really enforcing a no-access rule; it did

The Respondent admits and I find that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. I also find that Service Employees International Union, Local 32BJ, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act.

11. THE ALLEGED UNFAIR LABOR PRACTICES North Hills Office Services is a cleaning contractor that does business in the New York/New Jersey Metropolitan area. In the present case, it has a contract to provide these services in a building located at 25 Harbor Park Drive in Port Jefferson, New York. This is a 2-story building which has a single tenant, the Pall Corporation.' That company has offices and some kinds of laboratories in the building. North Hills has about 10 or 11 cleaning people who work at the building, normally between 6

Babcock & Wilcox Co., supra; Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).

The Board and the courts have long been engaged in "working out an adjustment between the undisputed right of self-organization assured to employees . . . and the equally undisputed right of employers to maintain discipline in their establishments.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798 (1945).

The Respondent was not the owner of the parking lot, but there are no exceptions to the judge's finding that the Respondent would have had the right to preclude nonemployee union organizers from trespassing on the property. See generally Wild Oats Community Markets, 336 NLRB 179, 180 (2001).

The Respondent employs about 400 cleaning employees who work at about 60 to 65 locations. Since 1974, with one exception, its employees, on a companywide basis, in the classifications of matrons and porters, have been represented by another labor organization called the National Organization of Indus

Page 9

trial Trade Unions (NOITU).?

In or about May 2004, the Charging Party commenced an organizing drive among various Respondent's employees at various locations. In the present case, union organizers attempted to approach employees at 25 Harbor Park Drive in early June 2004.

Ruth Perez testified that in early June 2004, she spoke with a union organizer in the parking lot one evening after her shift ended. She testified that Supervisor Policarpio Cruz passed by while she had this conversation. He concedes that he saw her having a talk with someone whom he assumed to be a Local 32BJ organizer

On the following day, Cruz approached Perez and admittedly told her that a security officer for the building, via the security camera, had seen her talking to someone and that she should not be talking to visitors in the parking lot. He told her that the Respondent's rules forbid employees from talking to visitors on company property. She testified that Cruz gave her a copy of the Respondent's employee rules and told her that she had to follow the rules or she would be fired. He testified that he told her that she had to follow company rules but states that he did not mention any consequences for failing to do so.

Perez also testified that in July 2004, there was another occasion when she spoke to a union organizer in the parking lot as she was in her car. According to Perez, on this occasion a man whom she later found out was Angel Alvarez, came over to the car, banged on the window and told her that she had to leave; that she couldn't be talking to someone in the parking lot. Perez testified that on the following evening, at the beginning of her shift, Alvarez came over to her, introduced himself and said that the building was a terrorist target and that she could not be talking to people in the parking lot. She also testified that he said that the employees did not need a different union and that they already received various benefits. According to Perez, Alvarez finally said that things were going to change and that the employees no longer could continue to come in late or go home early and that three mistakes could cost an employee

After reviewing the testimony and consistent with my credibility findings, I do not conclude that the Respondent interrogated employees about their union activities, threatened stricter enforcement of company rules, or gave employees the impression that their union activities were being kept under surveillance. In the latter regard, while it is true that Cruz told Perez in early June 2004, that her conversation with a visitor had been observed on a security camera, the evidence indicates that the tenant or building owner had previously placed security cameras around the premises. Therefore Cruz' comment to her was merely a truthful description of what had happened the previous night and should not be construed as an indication that the Respondent was going to engage in union surveillance. I also credit his denial that he threatened her with discharge.

Therefore, the basic remaining question here is whether the Company could tell its employees that they could not speak with union organizers during their off-duty hours while they were present in the parking lot owned or leased by the Respondent's client.

Since the parking lot is someone's private property and as there are no special circumstances herein, the owner or the leaseholder could call the police and legally prevent nonemployees from trespassing. Absent special circumstances not present in this case, an employer may bar from its property nonemployee union supporters. Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992); NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956).' Put more prosaically, whether I own or lease property, I have the right, for good reason or ill (or no reason at all), to prevent my neighbor's well-behaved children from playing on my front lawn.

An employer can take reasonable steps to insure that people who are not employees (as opposed to off-duty employees), are prevented from trespassing onto its private property. In Teksid Aluminum Foundry, 311 NRB 711, 715 fn. 2 (1993), the Board affirmed the conclusion that a company did not engage in unlawful surveillance when it posted security guards at its plant entrance and established a procedure whereby persons seeking entry had to sign in and out. The administrative law judge, citing Hoschton Garment Co., 279 NLRB 565, 567 (1986), stated that employers “have a right to respond to an organizational campaign by establishing procedures for denying unauthorized persons access to their facilities, and any incidental observation of public union activity by security guards is not unlawful.”

However, while it is perfectly permissible for a property holder to preclude nonemployees from gaining entrance to private property, the same rule does not automatically apply to the employer's own employees. In Firestone Tire & Rubber Co., 238 NLRB 1323 (1978), an employee and shop steward was told that he could only continue to use the company parking lot if he removed from his car, several large signs, one stating, “Don't Buy Firestone Products.” This parking lot was used primarily by company employees but also was used by visitors. When the individual refused to remove the signs, he

With respect to the July incidents, Alvarez testified that he approached Perez while she was in her car and politely told her that she could not be talking to someone in the parking lot after work; that if she wanted to talk to this person she could go 25 feet and talk to him outside the lot. (Alvarez admits that he assumed that she was talking to a Local 32BJ organizer.) He testified that on the following morning, he spoke to Perez merely to remind her of the Company's rules about talking to visitors on company premises, which he understood to include the parking lot. He denied telling Perez that the Company was going to make any changes in the way it enforced its rules and in this respect, I am going to credit his version. I note in this respect that the General Counsel produced no other witnesses to assert that the Respondent had announced plans to more strictly enforce its rules.

? For a more complete description of the Company's operations and the ongoing contest between the Charging Party and NOITU, see my decision in JD(NY)-05-05.

3 No contention is made here, nor could one be asserted, that the Union had no reasonable means of communicating with employees.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

was disciplined. The Board, citing the Supreme Court's decisions in Eastex, Inc. v. NLRB, 434 U.S. 1045 (1978); Hudgens v. NLRB, 424 US. 507, 521 fn. 10 (1976); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1965); and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 (1945), stated inter alia,

In an unbroken line of decisions, this Board and the Supreme Court have stated that where an employee exercises his Section 7 rights while legally on an employer's property pursuant to the employment relationship, the balance to be struck is not vis a vis the employer's property rights, but only vis a vis the employer's managerial rights. The difference is “one of substance,” since in the latter situation Respondent's managerial rights prevail only where it can show that the restriction is necessary to maintain production or discipline or otherwise prevent the disruption of Respondent's operations....

The facts clearly reveal that but for the fact that the parking lot was located on Respondent's premises, Knight was clearly engaged in protected concerted activities. This Board has long held that actions taken in sympathy of other striking employees fall within the protection of Section 7 of the Act. ...

[T]he Administrative Law Judge cites Cashway Lumber Inc., for the rule that an employee does not have a right to affix union posters on the employer's walls and property. However, this case is clearly distinguishable since Cashway, supra, stands only for the proposition that an employee is not engaged in protected activity if he defaces the employer's property. The mere presence of an automobile on which signs have been attached does not constitute the defacement of the property on which it has been parked.

tivity on private property during their nonworking time. Employees who work on private property are not strangers but occupy the status of invitees. As there is no showing that such activity by employees would adversely affect production or work discipline, I can see no justification for a supervisory direction to an employee (with the necessary implication of disciplinary action for noncompliance), to refrain from engag. ing in protected activity in the parking lot. Thus while I would not find that the Respondent violated the Act by telling a union organizer to leave the parking lot, I would also find that the Respondent could not legally tell its own employees not to talk to a union organizer or other employees about union business on the lot during their nonwork time. International Business Machines Corp., 333 NLRB 215, 219–221 (2001).

The Respondent may argue that there are special circumstances here. In this regard, there was some testimony that Respondent's management were told by the tenant that it was a terrorist target. But that little piece of hearsay evidence is not sufficient in my opinion. The Respondent presented no other evidence to show that securing the parking lot and making it inaccessible to visitors was necessary for national or anyone else's security. The tenant may have laboratories in the building but I have no idea what they are for. The parking lot is not surrounded by any fences and the entrances are not patrolled by security guards to prevent unauthorized access. On the contrary, the lot is adjacent to a public road, has three unsupervised entrances and can be accessed either by vehicle or by foot.

CONCLUSIONS OF LAW 1. The Respondent, North Hills Office Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. Service Employees International Union, Local 32BJ, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.

3. By directing off-duty employees not to engage in union activity in the parking lot, the Respondent has violated Section 8(a)(1) of the Act.

4. The aforesaid violation, affects commerce within the meaning of Section 2(6) and (7) of the Act.

5. Except to the extent found here, I recommend that the other allegations be dismissed.

REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.

Inasmuch as this is the fourth Decision finding that the Respondent has violated various provisions of the Act in relation to attempts by Local 32BJ to organize its employees, I shall recommend that the notice, in English and Spanish, be posted at all facilities in New York and New Jersey where the Respondent is performing services.

[Recommended Order omitted from publication.)

This case does not present a situation analogous to Southwestern Bell Telephone Company, supra, where a message printed on shirts worn at work ... was found to be "offensive, obscene or obnoxious,” thereby justifying the employer's actions taken against employees who refused to remove them or cover them up. Here ... the boycott signs were not taken into Respondent's work areas, did not interfere with Knight's ability to perform his assigned tasks, and did not otherwise interfere with Respondent's managerial rights. Here, the record clearly reveals that the parking lot was primarily used by employees not then at work and was an appropriate forum for communication among them. The fact that other persons not employed by Respondent may have had access to the parking lot and accordingly have had occasion to read these signs is insufficient reason for Respondent to be able to control

an employee's exercise of his Section 7 rights.... The point here is that although it would be permissible for the Respondent or its clients to take steps to preclude union organizers from trespassing onto private property, it is an altogether different story for the Respondent to prevent its own employees from engaging in union or protected concerted ac

Island, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Crista Elzeneiny, Esq., for the General Counsel.
Joseph D. Whelan, Esq., of Providence, Rhode Island, for the

Respondent Alfred Gordon, Esq., of Boston, Massachusetts, for the Charging Party

DECISION

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND SCHAUMBER On August 30, 2005, Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief and a brief in support of the judge's decision, and the Respondent filed a reply brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings and conclusions and to adopt the recommended Order.

ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ocean State Jobbers, Inc., d/b/a Ocean State Job Lot, North Kingston, Rhode

STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This case under the National Labor Relations Act (the Act) was tried before me in Pawtucket and Providence, Rhode Island, on May 2-4, 2005. On September 9, 2004,' United Food and Commercial Workers International Union, Local 328, AFL-CIO, filed the charge in Case 1-CA-42065 alleging that Ocean State Jobbers, Inc., d/b/a Ocean State Job Lot (the Respondent), had committed various violations of the Act. On February 28, 2005, after administrative investigation of the charges, the General Counsel of the National Labor Relations Board (the Board) issued a complaint alleging that, on August 16, the Respondent violated Section 8(a)(3) and (1) of the Act by suspending employees Elio Padilla, Juan Saravia, and Hector Pacheco because of their activities on behalf of the Union. (As discussed infra, the employee whom the complaint names as “Hector Pacheco” identified himself at trial as “Edgar Anez”; as this individual testified under oath that Edgar Anez is his true name, he will be referred to as such hereafter, except when the evidence requires the use of "Pacheco” to refer to him.) The complaint, as originally issued, further alleged that the Respondent violated Section 8(a)(1) by an agent's telling employees that they had just been suspended because they had engaged in union activities. And the original complaint further alleged that, on September 22, the Respondent violated Section 8(a)(3) and (1) by discharging Padilla, Anez, and Saravia because of their union activities. The Respondent duly filed an answer to the complaint admitting that this matter is properly before the Board but denying the commission of any unfair labor practices. At trial, over the objection of the Respondent, I granted a motion by the General Counsel to amend the complaint also to allege that the Respondent, by one of its supervisors, once threatened its employees with plant closure and job losses if they selected the Union as their collective-bargaining representative.

Upon the testimony and exhibits entered at trial, and after consideration of the briefs that have been filed, I enter the following findings of fact and conclusions of law.

We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL-CIO effective July 29, 2005.

No exceptions were filed to the judge's dismissal of 8(a)(1) allegations that the Respondent's director of logistics, Richard Giordano, threatened employees with closure of the warehouse if they selected the Union as their bargaining representative, and that alleged agent, Rodolfo Gamez, told the three discriminatees herein that they had been suspended for engaging in union activity.

The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

In adopting the judge's finding that the Respondent violated Sec. 8(a)(3) and (1) by discharging Elio Padilla, Edgar Anez, and Juan Saravia, we do not rely on his statement that “[c]hanging one's social security number is not an easy, or a quick thing to do; changing one's name is even harder." There is no record evidence to support this statement. We also do not rely on fn. 19 of the judge's decision, Contrary to the finding therein, the Respondent did contend that five of the other names on Giordano's nine-name list had invalid 1-9 information in the form of nonmatching social security numbers.

All dates mentioned are in 2004, unless otherwise indicated.

Certain passages of the transcript have been electronically reproduced; some corrections to punctuation have been entered. Where I quote a witness who restarts an answer, and that restarting is meaningless, I sometimes eliminate without ellipses words that have become extraneous; e.g., “Doe said, I mean, he asked . . ." becomes “Doe asked ...” Capitalization in quoted documents is original (e.g., "Social Security number"). All bracketed entries have been made by me.

and make sure your employees get the benefits they are

due. The letter recites that a list of nonmatching social security numbers is attached, and it closes with instructions the employer can follow to make corrections. The attachment has 185 social security numbers. The Respondent took no action on the 2003 No-Match letter, but the Social Security Administration took no action against it or any of its employees as a result.

On April 22, 2004, the Social Security Administration sent the Respondent a second No-Match letter, the text of which is identical to that of the 2003 letter. The 2004 No-Match letter attached a list of 156 social security numbers, 92 of which had appeared on the 2003 No-Match list.' As discussed infra, of the 156 numbers on the 2004 list had been specified by current warehouse employees on their W-4 forms. Two of those 85 numbers were those that had been specified by alleged discriminatees Anez and Padilla. The social security number that alleged discriminatee Saravia had specified on his W-4 form was not on the 2004 No-Match list (or on the 2003 No-Match list).

Raymond Conforti, the Respondent's director of human resources, identified two letters that the Respondent sent to the employees whose social security numbers had appeared on the 2004 No-Match list. The first letter is undated, but Conforti testified that he sent it in May 2004. The May letter states:

Ocean State Job Lot has been requested to update its personnel files for some of its employees. You are one of the employees who's [sic] file is being updated. To ensure the accuracy of our personnel file we are requesting that

you provide us the following information: Then the letter has blanks for full name, "current" social security number, current telephone number, and emergency contact The letter concludes: “After filling the requested information, please return the form to the Human Resources Department by May 26, 2004.”

Jurisdiction and Labor Organizations' Status As it admits, the Respondent is a corporation that has an office and warehouse in North Kingston, Rhode Island, from which it is engaged in the business of retail sales at various locations within Rhode Island and Massachusetts. In the conduct of those business operations, the Respondent annually derives gross revenues in excess of $500,000 and purchases and receives at the North Kingston facility goods valued in excess of $50,000 directly from suppliers located at points outside Rhode Island. I therefore find and conclude that at all material times the Respondent has been an employer that is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As the parties stipulated at trial, at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act.

Background The Respondent employs about 2800 employees, about 160 of whom work on three shifts at its warehouse. Many of the warehouse employees, including the alleged discriminatees, are from Bolivia and speak only Spanish. Before being suspended, the alleged discriminatees worked on the Respondent's second shift at the warehouse.

On May 22, 2003, the Social Security Administration sent to the Respondent a “No-Match letter.” In the letter, under the topic-line "Why are you getting this letter [?],” is stated:

Some employee names and Social Security numbers that you reported on the Wage and Tax Statements (Forms W-2) for tax year 2002 do not agree with our records. We need corrected information from you so that we can credit your employees' earnings to their Social Security record[s]. It's important because these records can determine if someone is entitled to Social Security retirement, disability and survivors['] benefit[s], and how much he or she can receive. If the information you reported to us is incorrect, your employee may not get the benefits he or she is

due. Under "IMPORTANT” (which word is in capital letters and in boldfaced type) is:

This letter does not imply that you or your employee intentionally gave the government wrong information about the employee's name or Social Security number. Nor does it make any statement about an employee's immigration status.

You should not use this letter to take any adverse action against an employee just because his or her Social Security number appears on the list, such as laying off, suspending, firing, or discriminating against that individual. Doing so could, in fact, violate state or federal law and

subject you to legal consequences. Under the heading "What You Should Do,” The Social Security Administration's 2003 letter states:

It would be a great help to us if you could respond within 60 days with the information that you are able to correct so that the Social Security Administration can maintain an accurate earnings records for each employee

Although no exhibit separately displays which of the 2003 numbers the Social Security Administration repeated in 2004, review of the two lists disclose that they are these: 337-96-5687; 046-25–7632; 247-653970; 036-24_3846; 037-90-6653; 654-79–8657, 601-43-8672; 034 53–5076; 037–62-5058; 036-29–1673; 534-98–8768; 563–42-8765; 036-65–3270; 147-88-9446; 039_45-6879; 442-23-1027; 037-60 1866; 542-09-7550; 089-58–7186; 012-07-9022; 089-46-0927, 059 11-7568; 036-25–2653; 611-87-0913; 036-70-6114; 032-24–8740; 059–32–7880; 657-98-4463; 038-41-7839; 03422-7312; 034–30 1409; 036-67–7856; 037-45-9062; 091-83-9092; 035-43-4509; 038 76–4021; 176-43–2786; 017-67-8645; 541-41-4988; 035-78-2352, 546-56-4768; 645–90–5676; 292-98-3478; 048–76-5336; 059-80– 3279; 404–05–8130; 646-88-7755; 042-11-6633; 037-65-9382; 03765–3352; 605–34–8891; 038–36–2264; 026-39–1495; 034-51-1590, 241-66–5431; 630-11-8929; 205-86-9529; 035-02-5521; 034-550101; 582--02-1228; 039–76–5037; 016-45-0162; 058–35-7497; 63210-1141; 033-12-6056; 03498–6791; 031-70-6628; 042-85-7452, 623–21-2911; 631–06-8472; 032-48-9354; 576-34-4780; 036-58 4725; 039–60-4491; 676-20-9501; 036-42-3714; 632-86-6147; 03788–4598; 038–75–8620; 035-64-8792; 036-60-3182, 035-02-0536; 601-69-4522; 045-96-9274; 390–78-4821; 225–76–8942; 034-074512; 034-23-6473; 036-17-8360; 642-98-0923; 046-48-1842; and 029–60–6029.

On June 2, Conforti sent another letter to the employees whose numbers had been listed on the 2004 No-Match letter. Each copy of the letter stated that the Social Security Administration had notified the Respondent that some of the employees' social security numbers “may be wrong,” that the Respondent was attaching a copy of the W-4 form that the employee had previously executed, and that: “You have until June 16, 2004 to correct this situation with the Social Security Administration.” In boldfaced type, the letter further states:

We have no plans to terminate any individual because of this issue. This is between you and the Social Security Admini

stration. The employee is thereafter told that he or she may take an unpaid “day or two off to hopefully resolve this issue with Social Security.”

Facts in Dispute As detailed below, Richard Giordano, the Respondent's director of logistics, testified that he, alone, made the decision to suspend the alleged discriminatees. Anez, who, again, testified that his real name is, in fact, “Edgar Anez,"4 testified that, in June, Giordano and Supervisor Alf Reid called a meeting of some of the second-shift employees. Giordano distributed copies of the June 2 letter, copies of W-4 forms that the gathered employees had previously submitted, and blank W-4 forms. Through a translator, Giordano told the gathered employees that there was a problem because their social security numbers did not match. Giordano told the employees not to be frightened and to look over their previously submitted W-4 forms and make any needed corrections on a new one. Anez testified that, at some unspecified time later, he approached Giordano in his office. According to Anez, Giordano told him "[t]o change one or two digits of the social security number. ... He saw that as the solution.” On June 14, Anez submitted a new W-4 form as “Hector Pacheco.” On the form, Anez also specified a new social security number.

is
The Organizational Attempt and the Alleged

Threat by Giordano Union Representative Carlos Gonzalez testified that union organizers held some meetings and made some home visits with first-shift employees in May, but the Union did not contact any second-shift employees until later. Gonzalez testified that in mid-July Padilla, Anez and Saravia signed union authorization cards. (Those cards were produced by the Union during Gonzalez' cross-examination, but were not placed in evidence.) Gonzalez testified that Padilla, Anez, and Saravia also supplied him with names and addresses of other second-shift employees

who could be visited, and sometimes Padilla, Anez, or Saravia, or two of those three, would accompany him on visits to homes of other second-shift employees. Padilla, Anez, and Saravia testified consistently with Gonzalez on these points.

The Respondent conducts Friday production meetings for each warehouse shift. Overall supervisor of the warehouse, David Reardon, and Warehouse Area Supervisors Alfonso Reid and Dawn Strong, were usually present at those meetings. Giordano attended some of those meetings. Padilla and Saravia testified that at one of the Friday meetings Giordano made blatant threats of warehouse closure and job losses if the employees selected the Union. Anez testified at length about one of the Friday meetings at which Giordano spoke, but Anez did not mention any statement that Giordano may have made about closing the warehouse. Giordano, Reardon, and Strong denied that Giordano ever made any such threat.

Padilla further testified that, at a subsequent employee meeting that was held by Giordano, all seats were taken by other employees. He, Anez, and Saravia stood together behind Giordano. During the meeting, Giordano held up an authorization card and said that the employees should not give their addresses and telephone numbers to other employees because they would only be bothered by those who were coming to homes to solicit for the Union. Further, according to Padilla, “When he said that, he turned and he looked at us." There was no denial of this testimony.

The Suspensions Alleged discriminatee Saravia testified that on August 16, at the start of his shift, Supervisors Strong and Reid took him to Reardon's office where alleged discriminatees Anez and Padilla were already waiting. Reardon told the three alleged discriminatees that he had received a telephone call from Social Security, that their social security numbers did not match their names, and that they must turn in the badges that they had theretofore used to clock in each day. Saravia told Reardon that it could not be possible that the names and numbers did not match, that he did not accept Reardon's statement about a telephone call, and that he needed to see something in writing from Social Security. Reardon responded that the employees could "go and argue about it with human resources.” A guard then escorted the alleged discriminatees outside of the warehouse. In the parking lot, they decided to go back and approach Conforti in human resources.

At the Respondent's human resources office, the employees asked both Giordano and Conforti why they were being suspended. Padilla testified:

Mr. Giordano began talking to us indicating that a letter had arrived from Social Security saying that we could no longer work there. ...

We asked him to show us the letter.
[Giordano said,] “Well, I don't really have the letter

Social Security called me and they told me on the phone that you could no longer work because your social security numbers do not match.”...

So we said, “Well, how could the Social Security be calling on the phone?"...

Actually, Anez first answered that is real name was “Edgar Alice" (or something that sounded like "Alice," but which was definitely not "Anez”).

At trial, Anez refused to give his true social security nber, and the Respondent moves to strike all of his testimony because of that refusal. As I find herein that the Respondent had freely allowed, if not encouraged, its employees to submit false social security information, Anez' true social security number (if any) is ultimately irrelevant. I therefore deny the Respondent's motion. See the Board's Rules and Regulations, Sec. 102.44(c).

Page 10

[H]e said, “After 9/11 this country is much more secure, more controlled and unfortunately it's a matter of national security.” ... They (the Social Security Administration] said that you cannot work.”...

[H]e told us that we had 45 days to hand over a certification from Social Security. He said, “If you bring me a certified letter from Social Security tomorrow, tomorrow

you have your job back.” Anez and Saravia testified consistently with Padilla about the August 16 interview with Giordano and Conforti. Specifically, Anez testified that Giordano told the alleged discriminatees that, “after 9/11, the country was feeling more insecure and it was a matter more of security.”

Alleged Telephone Call(s) to Gamez The complaint alleges that Group Leader Gamez is an agent of the Respondent within Section 2(13) of the Act and that, on August 17, Gamez made a threat to the alleged discriminatees. The General Counsel further argues that the alleged threat contained a binding admission that the alleged discriminatees were discharged because of their union activities. It is undisputed that Gamez is one of several bilingual employees who has served as a translator for the Respondent's supervisors. Gamez, however, did not serve as a translator for any of the communications described herein. (When Gamez and the alleged discriminatees conversed, they did so in Spanish.)

Padilla testified on direct examination that, during the day following the suspensions, he met at Anez' house with Anez, Saravia, and Union Representative Gonzalez. They met outside, and they decided to telephone Gamez. Because a neighbor was making noise by cutting his grass, the four men got into Anez' automobile; Anez used his phone, with the speaker on, to dial Gamez. Padilla spoke to Gamez. According to Padilla:

I... said, “What happened, why did they fire us?”

“Look,” he said, “I never thought that you would be mixed up in this thing. Your brother was a good worker. You, too. The union is for lazy people. You've made the Bolivians look bad here. Now the company sees the Bo

livians in a bad light.” Padilla further testified that, after he hung up, Anez said that he would call Gamez and ask the same question. Anez dialed a number, and Padilla heard Anez ask for Gamez, but at that point Padilla got out of the automobile because it was hot, so he did not hear any exchange between Gamez and Anez.

On cross-examination, Padilla acknowledged, and the General Counsel stipulated, that the only reference in Padilla's investigatory affidavit about a telephone call is:

About a week after my suspension, I spoke with my team leader, Rodolfo Gamez, on the telephone and he indicated to me that it was because I had promoted the Union, now the Bolivians were viewed negatively. He said, “The Union is for lazy (sic) and now nobody has any confidence in the Bolivians because they were now held in a dim view by the Com

When then asked if the telephone call to Gamez had not occurred a week after he was suspended, Padilla replied: “I'm not sure.”

Gonzalez and Anez testified in their direct examinations that, on August 16 or 17, at a point when Padilla was still present, in a second telephone call from the automobile, which call was conducted with a speaker facility turned on, Gamez made strong statements that the suspensions had been because of the alleged discriminatees' union activities. On cross-examination, Anez acknowledged that his investigatory affidavit, which was taken by counsel for the General Counsel in October, does not mention the alleged telephone calls to Gamez.

During Saravia's direct examination, the General Counsel did not ask about the telephone conversation with Gamez (even though, of course, that conversation had been made the subject of a separate paragraph of the original complaint). The Respondent, however, raised it during Saravia's cross-examination. Saravia testified that he was present when Padilla and Anez called Gamez and that they had reported to him, immediately after their conversation, that Gamez had stated that the alleged discriminatees had been suspended because of their union activities. When asked when that telephone call was, Saravia testified the he could not remember. Saravia was then asked and he testified:

Q. Okay. Who was actually on the phone?

A. I just told you, it was Padilla and Hector (Pacheco, a/k/a Edgar Anez] who spoke.

Q. Okay. Were they both on the phone together?

A. No, one by one. Of course, they would have had to have spoken one by one.

Q. Okay. When you say “of course you would have to spoken one by one” that's because just one person can use the phone, correct?

A. Yes. Saravia further testified on cross-examination that, when the telephone call was made, the three alleged discriminatees were in the yard "leaning on the car."

On redirect examination, Saravia testified that Gonzalez was "there” when Padilla and Anez spoke to Gamez on the telephone (on the date that Saravia could not remember). Also, Saravia changed his testimony that he was leaning against Anez' car when Padilla and Anez spoke to Gamez on the telephone. Saravia then testified that he was inside of Anez' car when Padilla, then Anez, spoke to Gamez. Saravia did not change his testimony, however, that he learned only from reports of Padilla and Anez what Gamez had supposedly said. (That is, Saravia did not testify that there was a speaker phone on, or that he could otherwise hear Gamez' side of the conversation.) When asked specifically if Gonzalez was present when the call from inside the automobile was made, Saravia replied

, "I'm confused between that day and another day when there were other people.”

Upon a motion that the Respondent made pursuant to rule 102.118, the General Counsel produced the affidavit that Saravia had executed during the investigation of the charge. The affidavit had been taken in Spanish by the counsel for the General Counsel herself. Because Saravia's affidavit was in

Page 11

Conforti nor Giordano offered any reason for abandoning the Respondent's June 2 (express, boldfaced) assurance that it was not going to take it upon itself to enforce the social security laws—other than to testify, incredibly, that the Respondent selected three employees for suspension in order to avoid losing even a greater number of employees in a hypothetical future raid by the immigration authorities.

Giordano testified the he, and he alone, made the selections of Padilla, Anez, and Saravia for suspension. The Respondent did not question Giordano about how he came to make his selections. When the General Counsel examined Giordano, he testified that Portno showed him the No-Match list that was attached to the 2004 Social Security Administration letter but that Portno did not show him the No-Match letter itself. Apparently sensing that that testimony was incredible, as it was, Giordano then testified that he chose Padilla, Anez, and Saravia, not from the No-Match list, but from another list which had nine names. When asked where the nine-name list came from, Giordano answered: “I don't know who generated that list, no, I do not.” When asked how he selected Padilla, Anez and Saravia from the list-of-unexplained-origin, Giordano replied: I'm not sure I can answer that. I don't know. I think I

1 mentioned that to you before also. It was just, they were there. I can't say it any simpler than that. It was just, they were there. I can't say it any clearer than that. I wish that I

could, but I can't. Therefore, the Respondent's defense requires a finding that, only on a basis which Giordano could not explain, from a list whose origin Giordano also could not explain, Giordano just happened to chose for discharge three employees who had been making home visits with the union representative, the alleged discriminatees. This is too much to believe, and I do not.

Giordano did not testify what he told the three alleged discriminatees when they gathered in Conforti's office on August 16. Conforti testified that Giordano told the alleged discriminatees that “the reason for the suspension was the fact that they didn't have proper 1-9 information.” Therefore, even according to the Respondent's version of events, the defense for the suspension allegations has shifted from lack if 1-9 information (Conforti) to honest “random picking” from a list of unexplained origin (Giordano)."' At trial, Giordano and Conforti did not assert that the tragedies of September 11, 2001, were part of the reason for the suspensions, but Padilla and Anez were credible in their testimonies that on August 16 Giordano advanced that reason also. The propounding of these shifting, cynical, and false reasons for the suspensions lead me to find, as I do, that the real reason lay in animus toward the union activities of its employees. See Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 125 F.3d 1064 (7th Cir. 1997), where it is stated:

Finally, the Board has inferred knowledge where the reason given for the discipline is so baseless, unreasonable, or contrived as to itself raise a presumption of wrongful motive. Whitesville Mill Service Co., supra [307 NLRB 937 (1992)]; De Jana Industries, 305 NLRB (845) at 849 [(1991)); Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Even where the employer's rationale is not patently contrived, the Board has held that the "weakness of an employer's reasons for adverse personnel action can be a factor raising a suspicion of unlawful motivation.” See generally General Films, 307

NLRB 465, 468 (1992). See also Cox Communications, 343 NLRB 164 (2004), and cases cited therein (finding of “knowingly false” reason for discharge “supports an inference that (the alleged discriminatee's] discharge was motivated by his union activity”).

Also the disproportionate number of union adherents selected for the suspensions (3 out of 3 on the No-Match list of 156, or 3 out of 3 on Giordano's from-the-ethers list of 9) also proves the element of animus that is required by Wright Line. See Glenn's Trucking, 332 NLRB 880 (2000), enfd. 298 F.3d 502 (6th Cir. 2002) (such “blatant disparity” is “statistical evidence” of animus). See also San Angelo Packing Co., 163 NLRB 842, 846 (1967), and Continental Radiator Corp., 283 NLRB 234, 248 (1987).

I further find that the Respondent knew, or at lest suspected, that Padilla, Anez, and Saravia were engaged in union activities. I credit Padilla's undenied testimony that during an antiunion meeting Giordano turned and looked at the alleged discriminatees when he stated that some employees were visiting other employees at their homes to solicit union authorization cards. This is what the alleged discriminatees had been doing, and by the motion of his body Giordano was letting them, and everyone else present, know that he knew it.

When the Respondent issued the last paychecks for the alleged discriminatees, it also issued to them any vacation pay that accrued to that point. The Respondent would not have done that unless the suspensions were actually discharges, and I find that they were.

In summary, I find that the General Counsel has made out a prima facie case that Padilla, Anez, and Saravia were unlawfully suspended and discharged. Further, because the Respondent's purported rationale for discharging all three employees is not supported by any probative evidence, 20 I find that the Respondent failed to establish that it would have discharged the alleged discriminatees even in the absence of their known union activities. NLRB v. Transportation Management Corp., supra. Accordingly, I find and conclude that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging Padilla, Anez, and Saravia.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

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.

(e) Post in conspicuous places at its facility in North Kingston, Rhode Island, copies of the attached notice marked “Ap

Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Re spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re spondent 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 August 16, 2004.

(1) 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.

The allegations of unfair labor practices not found are dismissed

THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I conclude that it should be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including offering reinstatement to Padilla, Anez, and Saravia and make them whole for any loss of earnings and other benefits in accordance with the provisions of F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).?"

On these findings of fact and conclusions of law and on the entire record, I issue the following recommended22

ORDER The Respondent, Ocean State Jobbers, Inc., d/b/a Ocean State Job Lot, North Kingston, Rhode Island, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Suspending or discharging employees, or otherwise discriminating against employees, because they have engaged in activities on behalf of, or because they have held sympathies for, United Food and Commercial Workers International Union, Local 328, AFL-CIO.

(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.

(a) Within 14 days from the date of this Order, offer Elio Padilla, Edgar Anez, and Juan Saravia full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

(b) Make Elio Padilla, Edgar Anez, and Juan Saravia whole for any loss of earnings or other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful suspensions and discharges, and within 3 days thereafter notify Elio Padilla, Edgar Anez, and Juan Saravia in writing that this has been done and that the suspensions and discharges 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 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

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Goverment
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no- tice.

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 discharge you, or otherwise discriminate against you, because of your membership in, sympathies for, or activities on behalf of United Food and Commercial Workers International Union, Local 328, AFL--CIO.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by federal law.

WE WILL, within 14 days of the Board's Order, offer Elio Padilla, Edgar Anez, and Juan Saravia immediate reinstatement

See, however, Tuv Taam Corp., 340 NLRB 756 (2003) (“Typically, an individual's immigration status is irrelevant to a respondent's unfair labor practice liability under the Act. Questions concerning the employee's status and its effect on the remedy are left for determination at the compliance stage of a case.").

22 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.

Topor Contracting, Inc. and International Brother

hood of Operating Engineers, Local 17. Case 3– CA-24557

November 30, 2005

In the absence of good cause being shown for the failure to file a timely answer, we grant the Acting General Counsel's Motion for Default Judgment. On the entire record, the Board makes the following

FINDINGS OF FACT

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND SCHAUMBER The Acting General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on November 14, 2003, the General Counsel issued the complaint on May 19, 2005, against Topor Contracting, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer.

On October 25, 2005, the Acting General Counsel filed a Motion for Default Judgment with the Board.' On October 27, 2005, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed,

Ruling on Motion for Default Judgment Section 102.20 of the Board's Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by June 2, 2005, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the Acting General Counsel's motion disclose that the Region, by letter dated July 1, 2005, notified the Respondent that unless an answer was received by July 8, 2005, a Motion for Default Judgment would be filed.?

1. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Buffalo, New York, has been engaged in demolition and concrete flat work.

During the 12-month period ending January 2004, the Respondent, in conducting its business operations described above, provided services valued in excess of $50,000 for the City of Buffalo, a government entity within the State of New York which is directly engaged in interstate commerce.

We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the International Brotherhood of Operating Engineers, Local 17 is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Thomas P. Toporczyk held the position of the Respondent's president, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act.

The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All employees performing heavy and highway construction and building site work, as described in Article V, Definition and Jurisdiction within the geographic jurisdiction set forth in Article II, of the April 1, 2002, through March 31, 2005, "heavy and highway' agreement between the Union and the Council of Utility

Contractors, Inc. At all material times, the Council of Utility Contractors, Inc. (COUC), has been an organization composed of employers, one purpose of which is to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the Union.

On or about February 27, 1999, COUC and the Union entered into a "heavy and highway" collective

The Acting General Counsel had previously filed a Motion for Default Judgment with the Board in this case on July 26, 2005. In an Order dated September 19, 2005, the Board denied that motion on the ground that the Acting General Counsel had failed to prove service of the complaint or the motion on the Respondent. 345 NLRB No. 60. As indicated below, in support of the instant motion, the Acting General Counsel has shown that the complaint and the Motion for Default Judgment were properly served on the Respondent.

On July 1, 2005, the reminder letter and a copy of the complaint were sent by certified and regular mail to the Respondent at the business and home addresses provided to the Board by the Respondent's president and owner Thomas Toporczyk in a swom affidavit. On the same date, copies of the reminder letter and complaint were also sent by certified and regular mail to the address designated by the Respondent with the State of New York Department of State for service of process. The letters sent by certified mail were returned marked "unclaimed”. The letters sent by regular mail have not been returned. It is well settled that a respondent's failure or refusal to accept certified mail

or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., 1.C.E. Electric, Inc., 339 NLRB 247 fn. 2 (2003), and cases cited there. In any event, the failure of the Postal Service to return documents sent by regular mail indicates actual receipt. See, e.g., 1.C.E. Electric, supra.

found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing since on or about October 2, 2003, to adhere to the terms of the 2002–2005 “heavy and highway" collective-bargaining agreement with the Union, we shall order the Respondent to make whole the unit employees for any loss of earnings and other benefits they have suffered as a result of the Respondent's failure between October 2, 2003, and March 31, 2005, to continue in effect all the terms of the agreement.' Back

bargaining agreement, effective from April 1, 1999, through March 31, 2002.

On or about April 1, 2002, COUC and the Union entered into a collective-bargaining agreement effective April 1, 2002, through March 31, 2005.

On or about March 21, 2002, the Respondent signed the April 1, 1999, through March 31, 2002, “heavy and highway” collective-bargaining agreement, which at all material times bound the Respondent to the terms and conditions of employment of that agreement and to future agreements unless timely notice was given."

On or about March 21, 2002, the Respondent, an employer engaged in demolition and concrete flat work, granted recognition to the Union as the exclusive collective-bargaining representative of the unit and since that date the Union has been recognized as the representative by the Respondent without regard to whether the majority status of the Union had ever been established under the provisions of Section 9(a) of the Act. Such recognition has been embodied in successive “heavy and highway” agreements, the most recent of which was effective from April 1, 2002, through March 31, 2005."

Since on or about October 2, 2003, the Respondent has repudiated and failed and refused to adhere to the terms of the collective bargaining agreement described above.

CONCLUSION OF LAW By repudiating and failing and refusing to adhere to the terms of the 2002-2005 "heavy and highway" collective-bargaining agreement, the Respondent has been failing and refusing to bargain collectively and in good faith with the limited exclusive collective-bargaining representative of its employees, in violation of Section 8(a)(5) and (1) of the Act, and has thereby engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

REMEDY Having found that the Respondent has engaged in certain unfair labor prac ces, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having

The Respondent entered into the collective-bargaining agreement with the Union on March 21, 2002, pursuant to Sec. 8(1) of the Act. At that time, the agreement was effective through March 31, 2002. The complaint further alleges that, by signing the agreement, the Respondent agreed to be bound to future agreements unless timely notice was given. The complaint also alleges that the Respondent unlawfully failed to honor one such future agreement, which was effective April 1, 2002, through March 31, 2005. On these alleged facts, which have been effectively admitted by the Respondent, we find that the remedy in this case runs until March 31, 2005. John Deklewa & Sons, 282 NLRB 1375 (1987). See also, James Luterbach Construction Co., 315 NLRB 976 (1994).

Our dissenting colleague would extend the remedy beyond March 31, 2005. We disagree. The complaint here alleges that the contract was effective until March 31, 2002, and that the Respondent agreed to be bound to future agreements if no timely notice of cancellation was sent. However, the complaint alleges only one such future agreement. The complaint is therefore subject to the reasonable reading that the Respondent became bound to only one future agreement.

Our finding in this regard, however, does not preclude the Acting General Counsel from amending the complaint to allege that the Respondent became bound to additional agreements. In the event that the Respondent again fails to file an answer, thereby admitting evidence that would permit the Board to extend the remedy beyond March 31, 2005, the Acting General Counsel may renew the Motion for Default Judgment with respect to the amended complaint.

Member Liebman dissents from her colleagues' failure to provide for a remedy beyond March 31, 2005. Where, as here, a respondent has repudiated an 8(f) contract, the respondent should be ordered "to honor that contract and any automatic renewal or extension of it.” McKenzie Engineering Co., 326 NLRB 473 fn. 3, 474 (1998) (emphasis added), enfd. 182 F.3d 622 (8th Cir. 1999). As the Board explained in McKenzie Engineering, such a remedial order appropriately “grant(s] the extent of recognition that is owed to a collective-bargaining representative in an 8(f) relationship.” Id. at fr. 3 (citing John Deklewa & Sons, 282 NLRB 1375, 1387 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988)). Accord: South Alabama Plumbing, 333 NLRB 16, 17 fn. 2 (2001) (“We amend the judge's remedy to provide that the Respondent is liable for honoring the July 15, 1996–July 14, 1998 collectivebargaining agreement for its term, as well as any automatic renewal or extension of the contract.") (emphasis added); Energy Services International, 343 NLRB No. 6, slip op. at 3-4 (2004) (the Board ordered the respondent “to honor the terms and conditions of the Inside Agreement, and any automatic renewal or extension of it.") (emphasis added). Ordering the Respondent to honor any automatic renewal or extension of the 2002–2005 agreement is particularly appropriate in this case because the Respondent has effectively admitted the complaint allegation that, pursuant to the terms of the 1999–2002 contract, it was bound "to future agreements unless timely notice was given.” Any dispute over whether such notice was given may be resolved at the compliance stage of this proceeding. South Alabama Plumbing, supra.

? The complaint does not allege that the Respondent has delegated to COUC the authority to bargain on its behalf, or that the Respondent's unit employees have at any time been part of a multiemployer bargaining unit. Accordingly, absent any indication of the requisite consent for multiemployer bargaining, we shall assume that the unit is a single employer unit.

The complaint alleges that the Respondent is a construction industry employer and that it granted recognition to the Union without regard to whether the Union had established majority status. Accordingly, we find that the relationship was entered into pursuant to Sec. 8(f) and that the Union is therefore the limited 9(a) representative of the unit employees for the period covered by the contract. See, e.g., A.S.B. Cloture, Lid. 313 NLRB 1012 (1994).

Page 12

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN

AND SCHAUMBER The Acting General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on November 14, 2003, the General Counsel issued the complaint on May 19, 2005, against Topor Contracting, Inc., the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Act. The Respondent failed to file an answer.

On October 25, 2005, the Acting General Counsel filed a Motion for Default Judgment with the Board.' On October 27, 2005, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed.

Ruling on Motion for Default Judgment Section 102.20 of the Board's Rules and Regulations provides that the allegations in a complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by June 2, 2005, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the Acting General Counsel's motion disclose that the Region, by letter dated July 1, 2005, notified the Respondent that unless an answer was received by July 8, 2005, a Motion for Default Judgment would be filed.?

1. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Buffalo, New York, has been engaged in demolition and concrete flat work.

During the 12-month period ending January 2004, the Respondent, in conducting its business operations described above, provided services valued in excess of $50,000 for the City of Buffalo, a government entity within the State of New York which is directly engaged in interstate commerce.

We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the International Brotherhood of Operating Engineers, Local 17 is a labor organization within the meaning of Section 2(5) of the Act.

II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Thomas P. Toporczyk held the position of the Respondent's president, and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act.

The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:

All employees performing heavy and highway construction and building site work, as described in Article V, Definition and Jurisdiction within the geographic jurisdiction set forth in Article II, of the April 1, 2002, through March 31, 2005, “heavy and highway agreement between the Union and the Council of Utility

Contractors, Inc. At all material times, the Council of Utility Contractors, Inc. (COUC), has been an organization composed of employers, one purpose of which is to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the Union.

On or about February 27, 1999, COUC and the Union entered into a “heavy and highway" collective

The Acting General Counsel had previously filed a Motion for Default Judgment with the Board in this case on July 26, 2005. In an Order dated September 19, 2005, the Board denied that motion on the ground that the Acting General Counsel had failed to prove service of the complaint or the motion on the Respondent. 345 NLRB No. 60. As indicated below, in support of the instant motion, the Acting General Counsel has shown that the complaint and the Motion for Default Judgment were properly served on the Respondent.

On July 1, 2005, the reminder letter and a copy of the complaint were sent by certified and regular mail to the Respondent at the business and home addresses provided to the Board by the Respondent's president and owner Thomas Toporczyk in a swom affidavit. On the same date, copies of the reminder letter and complaint were also sent by certified and regular mail to the address designated by the Respondent with the State of New York Department of State for service of process. The letters sent by certified mail were returned marked "unclaimed”. The letters sent by regular mail have not been returned. It is well settled that a respondent's failure or refusal to accept certified mail

or to provide for appropriate service cannot serve to defeat the purposes of the Act. See, e.g., 1.C.E. Electric, Inc., 339 NLRB 247 fm. 2 (2003), and cases cited there. In any event, the failure of the Postal Service to return documents sent by regular mail indicates actual receipt. See, e.g., I.C.E. Electric, supra.

found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing since on or about October 2, 2003, to adhere to the terms of the 2002–2005 “heavy and highway" collective-bargaining agreement with the Union, we shall order the Respondent to make whole the unit employees for any loss of earnings and other benefits they have suffered as a result of the Respondent's failure between October 2, 2003, and March 31, 2005, to continue in effect all the terms of the agreement.' Back

bargaining agreement, effective from April 1, 1999, through March 31, 2002.

On or about April 1, 2002, COUC and the Union entered into a collective-bargaining agreement effective April 1, 2002, through March 31, 2005.

On or about March 21, 2002, the Respondent signed the April 1, 1999, through March 31, 2002, "heavy and highway" collective-bargaining agreement, which at all material times bound the Respondent to the terms and conditions of employment of that agreement and to future agreements unless timely notice was given.