Ace Heating & Air Conditioning Co., Inc.

National Labor Relations Board - Board Decisions

Jun 15, 2016

364 NLRB No. 22 (N.L.R.B. 2016)

364 NLRB No. 22
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ace Heating and Air Conditioning Company, Inc. and
Sheet Metal Workers International Association,
Local Union No. 33, AFL–CIO. Cases 08–CA–
133965, 08–CA–133967, 08–CA–133968, and 08–
RC–127213
June 15, 2016
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On January 15, 2015, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief. The
Respondent filed an answering brief, and the General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The 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,1 and conclusions
only to the extent consistent with this Decision, Order,
and Direction of Second Election.2
I. INTRODUCTION
The Respondent, Ace Heating and Air Conditioning
Company, Inc., is an Ohio corporation that installs and
services heating, ventilation, and air conditioning sys-
tems in the Cleveland, Ohio area. This case concerns
events that took place in April and May 20143 in connec-
tion with a campaign by the Sheet Metal Workers Inter-
national Association, Local Union No. 33, AFL–CIO
(Union) to organize the Respondent’s eight full-time
field installers and service technicians, all of whom were
working primarily at a jobsite called Shoreway Lofts.
Following the filing of a representation petition, an
election was conducted pursuant to a Stipulated Election
Agreement on May 21. Of the nine votes cast, the tally
of ballots showed four for and four against the Union,

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant 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 his findings.
2 In light of our decision today, we shall modify the judge’s recom-
mended Order, issue an appropriate notice to conform to our findings
and remedy, and include a direction of second of election.
3 All dates refer to 2014 unless otherwise indicated.
with one challenged ballot belonging to Ed Dudek. On
August 14, the Board adopted, in the absence of excep-
tions, a hearing officer’s report recommending that
Dudek’s ballot not be counted based on a finding that he
was a supervisor under Section 2(11) of the Act. Thus,
the Union lost the election.
Subsequently, the Union filed objections to conduct af-
fecting the results of the election in Case 08–RC–
127213, which was consolidated with the Union’s unfair
labor practice charges filed in Cases 08–CA–133965,
08–CA–133967, and 08–CA–133968. On September 30,
the General Counsel issued a consolidated complaint and
notice of hearing alleging the Respondent committed
several violations of Section 8(a)(1) of the Act and en-
gaged in objectionable election conduct.
The complaint alleges these violations were committed
by Supervisor Dudek and by the Respondent’s owner and
President, Mitchell Stephen. In particular, the complaint
alleges that Dudek, upon direction from Stephen, threat-
ened employees with business closure, and that Dudek
conveyed to employees that the Respondent would pay
them in exchange for voting against the Union.4 Further,
the complaint alleges that Stephen informed employees
they were being denied a wage increase because of their
support for the Union and that Stephen granted raises to
some employees to influence employees against joining a
union.
The judge found no merit to the allegations and rec-
ommended that the complaint be dismissed and the re-
sults of the election certified. Although we agree with
the judge’s decision to dismiss many of the allegations,
we do not agree with his decision to dismiss the allega-
tion that the Respondent unlawfully threatened employ-
ees with business closure. We find, moreover, that this
threat requires setting aside the election.
II. UNFAIR LABOR PRACTICES
A. Alleged Violations of Section 8(a)(1) Premised on the
Conduct of Supervisor Ed Dudek
1. At the time of the events in this case, Ed Dudek was
a supervisor of the Respondent under Section 2(11) of
the Act.5 Dudek received his work instructions and or-

4 The complaint also alleged that Dudek disseminated implicit
threats of job loss to employees and interrogated them, but the judge
discredited the relevant testimony supporting those allegations, and, as
noted, we find no basis for overturning the judge’s credibility determi-
nations.
5 The Respondent admitted in its answer “that Ed Dudek was a su-
pervisor of the Respondent” and never sought to amend its answer to
deny Dudek’s supervisory status. See generally Harco Trucking, LLC,
344 NLRB 478, 479 (2005) (“admissions in an answer are binding on
the respondent” (citing Boydston Electric, Inc., 331 NLRB 1450, 1451
(2000))). In addition, the Respondent did not except to the judge’s
statement “that Ed Dudek was a supervisor within the meaning of Sec-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ders from owner Mitchell Stephen and he relayed those
orders to eight installers and service technicians who
worked under his supervision during the period in ques-
tion. As is more fully explained in the judge’s decision,
Dudek signed a union authorization card on April 21, the
date when Union Organizer David Coleman first met
with employees at Shoreway Lofts and solicited and col-
lected signed authorization cards from seven of the Re-
spondent’s employees. Dudek had some contact with
Organizer Coleman and facilitated the initial meeting
between Coleman and the employees.6 Dudek also voted
in the representation election on May 21, but his vote
was challenged by a Board agent and, as indicated, a
hearing officer determined he was ineligible to vote
based on his status as a statutory supervisor.
The judge found that, about a week before the election,
when Dudek was handing out paychecks to employees
Henry (Joe) Huckoby, Noble Hall, Brian Orosz, and
Chris Sikora, Dudek told them that Stephen had directed
him to inform them that the Respondent would close its
doors if they voted for the Union. The judge neverthe-
less found that the Respondent was not liable for this
statement because Dudek was “actively involved on be-
half of the Union” and therefore was not acting as an
agent of the Respondent “in matters relating to the Union
organizing drive.” For that reason, the judge dismissed
the complaint allegation that Dudek’s threat violated
Section 8(a)(1) and the Union’s corresponding election
objection.
The General Counsel excepts to the judge’s dismissal
on the grounds that Dudek is an admitted statutory su-
pervisor and that, pursuant to well established Board
precedent, any statements he made during the organizing
campaign are imputable to the Respondent. The General
Counsel additionally contends that even applying a tradi-
tional agency analysis, the Respondent clothed Dudek
with apparent authority to speak on its behalf and is lia-
ble for Dudek’s conduct as a result. We find merit in
these exceptions.
Initially, there can be no dispute that the threat of busi-
ness closure conveyed by Dudek would violate the Act,

tion 2(11),” and concedes in its opposition brief that “Mr. Dudek was a
‘supervisor’ within the meaning of Section 2(11).” Thus, in this pro-
ceeding, no party disputes that Ed Dudek was a statutory supervisor.
6 As the judge found, Dudek “exchanged text messages with Organ-
izer Coleman as late as May 7,” but the record does not conclusively
establish the quantity, nature, or contents of the text messages they
exchanged, nor does the record show whether employees knew that the
two communicated by text message or other means. Similarly, alt-
hough Dudek appears to have told Coleman the time and place for
meeting with the Respondent’s employees, it is not clear from the rec-
ord that employees had knowledge of the type or extent of communica-
tions between Dudek and Coleman.
if the Respondent is liable for Dudek’s conduct. It is
well established that such threats by supervisors can be
highly coercive, especially where, as here, the supervisor
has a close working relationship with a higher-ranking
official and invokes that official’s name in making the
threat. See, e.g., C & T Mfg., 233 NLRB 1430, 1430
(1977); see also Garvey Marine, Inc., 328 NLRB 991,
994 fn. 11 (1999), enfd. 245 F.3d 819 (D.C. Cir. 2001).
The threat to cease operations, attributed to the Respond-
ent’s owner and president by a supervisor closely identi-
fied with him, would reasonably chill employees in the
exercise of their Section 7 rights, and would be unlawful
if attributable to the Respondent. Contrary to the judge,
and our dissenting colleague, we find that it is, based
either on Dudek’s supervisory status or his apparent au-
thority to speak for the Respondent on matters relating to
the Union.
First, the Respondent is liable for Dudek’s threat be-
cause he was its supervisor. The Board has long recog-
nized that “Section 2(13) of the statute makes it clear that
an employer is bound by the acts and statements of its
supervisors whether specifically authorized or not.”
Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299
(1986), enfd. 833 F.2d 1263 (7th Cir. 1987); see also
Storer Communications, 294 NLRB 1056, 1077 (1989);
Jays Foods, Inc., 228 NLRB 423 (1977), enfd. on this
point 573 F.2d 438, 445 (7th Cir. 1978). This principle
applies even where the supervisors who made allegedly
unlawful statements had, on prior occasions, expressed
sentiments or engaged in conduct that communicated to
employees that the supervisors’ sympathies were aligned
with employees’ organizing efforts or with the union.
See Daniel Construction Co., 241 NLRB 336, 340
(1979); see also Maidsville Coal Co., 257 NLRB 1106,
1122–1123 (1981), enfd. 718 F.2d 658 (4th Cir. 1983)
(en banc).
As the judge found, Dudek had some involvement, or
even alignment, with the Union’s representation effort,
which was known to employees. Notwithstanding, he
relayed the business closure threat on behalf of the Re-
spondent’s owner directly to four employees while he
was functioning in his capacity as a supervisor of the
Respondent. Therefore, applying our traditional princi-
ples pursuant to Sections 2(11) and 2(13) of the Act, we
find that the Respondent is liable under the Act for
Dudek’s threat.7

7 We find the judge’s citation to, and apparent reliance on, Indianap-
olis Newspapers, Inc., 103 NLRB 1750, 1751 (1953), and Montgomery
Ward & Co., 115 NLRB 645, 647 (1956), enfd. 242 F.2d 497 (2d Cir.
1957), misplaced, as those cases involved circumstances that are not
present here. In both cases, the union and the employer entered into
agreements to include statutory supervisors in the unit. With respect to
ACE HEATING AND AIR CONDITIONING CO. 3
Even if Dudek were not a statutory supervisor, howev-
er, we would still find the Respondent liable for his coer-
cive threat of business closure because Dudek was its
agent; more specifically, he had apparent authority to
speak for the Respondent. At the outset, we observe that
the complaint alleged, and the Respondent did not specif-
ically deny in its answer, that Dudek was an agent of the
Respondent under Section 2(13).8

whether the employer was liable for the conduct of such supervisors, in
Montgomery Ward, the Board opined:
When a supervisor is included in the unit by agreement of the Union
and the Employer and is permitted to vote in the election, the employ-
ees obviously regard him as one of themselves. Statements made by
such a supervisor are not considered by employees to be the represen-
tations of management, but of a fellow employee. Thus they do not
tend to intimidate employees. For that reason, the Board has generally
refused to hold an employer responsible for the antiunion conduct of a
supervisor included in the unit, in the absence of evidence that the
employer encouraged, authorized, or ratified the supervisor’s activities
or acted in such manner as to lead employees reasonably to believe
that the supervisor was acting for and on behalf of management.
Montgomery Ward, supra at 647 (citing Indianapolis Newspapers, supra at
1751) (emphasis added).
Here, the Respondent and the Union did not have an agreement to
include Dudek in the unit, and thus the judge erred in relying on Indi-
anapolis Newspapers and Montgomery Ward.
Our colleague points out that in Indianapolis Newspapers, the Board
based its rejection of the notion that the particular supervisors in issue
were acting for management not only on the fact that those supervisors
“were in the unit bargained for,” but also on evidence showing that they
“were active on its behalf,” i.e., the union’s behalf. Indianapolis News-
papers, supra at 1751 (emphasis in original). In the present case, how-
ever, the question is not so much whether Dudek was acting for man-
agement when speaking in his own right, but whether employees would
reasonably believe that Dudek was authorized to transmit statements
from Stephen. The evidence demonstrates that Dudek did have at least
the apparent authority in his position as a supervisor to relay a threat of
business closure to employees as a message from Stephen. In Indian-
apolis Newspapers and Montgomery Ward, by contrast, no such evi-
dence of the supervisor’s apparent authority to communicate directives
and messages to the work force from management existed. Relatedly,
that Stephen actually may not have directed Dudek to convey that
threat is immaterial.
Further, we disavow any suggestion by the judge that the “rebuttable
presumption” framework set out in National Apartment Leasing, 272
NLRB 1097 (1984), is applicable here. In that case, pursuant to a re-
mand from the Third Circuit in NLRB v. Schroeder, 726 F.2d 967 (3d
Cir. 1984), the Board applied the law of the case to determine whether
an employer was responsible for statements made by its supervisors.
However, the Board continues to hold, as we have elsewhere stated,
that an employer is bound by statements of its supervisors whether
specifically authorized or not. Accord Ideal Elevator Corp., 295
NLRB 347, 347 fn. 2 (1989).
8 Sec. 102.20 of the Board’s Rules and Regulations provides that
“any allegation in the complaint not specifically denied or explained in
an answer filed” shall be deemed admitted, unless good cause is shown.
The Respondent nevertheless asserted as an affirmative defense that
it was not liable for Dudek’s threat because Dudek actually was acting
as an agent of the Union during the election campaign. Although the
judge and our dissenting colleague accept this assertion, it has not been
established. To the contrary, as the General Counsel argues, there
Moreover, the record evidence independently estab-
lishes that Dudek in fact was acting as an agent of the
Respondent within the scope of his apparent authority
when he made the business closure threat. Our standard
is to apply “the common law principles of agency in de-
termining whether an employee is acting with apparent
authority on behalf of the employer when that employee
makes a particular statement or takes a particular action.”
Pan-Oston Co., 336 NLRB 305, 305 (2001) (citing
Cooper Industries, 328 NLRB 145, 145–146 (1999)).
The Board will find apparent authority where the princi-
pal has made a manifestation “to a third party that creates
a reasonable belief that the principal has authorized the
alleged agent to perform the acts in question.” Id. at
305–306 (citing Southern Bag Corp., 315 NLRB 725,
725 (1994)). Thus, the question of Dudek’s agency sta-
tus is whether, under all the circumstances, employees
would reasonably believe he was reflecting the Respond-
ent’s policy and speaking for management when he re-
layed Stephen’s threat of closure. Southern Bag Corp.,
supra at 725.
The circumstances here plainly establish that Dudek
was an agent of the Respondent at the relevant time. As
found by the judge, Dudek oversaw daily operations at
the Shoreway Lofts jobsite, and Stephen routinely gave
work orders to employees through Dudek. The employ-
ees, in turn, looked upon Dudek as Stephen’s conduit on
work-related matters. Significantly, Stephen himself
generally did not appear at Shoreway Lofts on a daily
basis, but typically did so only around two or three times
per week, leaving Dudek to manage the work force in his
stead. It is therefore not surprising that Stephen readily
admitted that Dudek was in charge of the Shoreway job.
Further, Stephen testified that he considered Dudek to be
his “business partner” and “confidant,” and that some
employees perceived Dudek as his business partner.
Lastly, it is undisputed that the relevant threat was con-
veyed while Dudek was handing employees their
paychecks—a task he performed weekly on behalf of the
Respondent. In these circumstances, we find, contrary to
the judge, that the Respondent created a situation in
which employees would reasonably conclude that Dudek
was the primary conduit for transmitting Stephen’s mes-
sages to employees and that Dudek was visibly and un-
ambiguously functioning in this role when he relayed the
threat of business closure to employees, purportedly on

simply is no record evidence that the Union either authorized Dudek to
act on its behalf or made any outward manifestations such that employ-
ees would be reasonable in believing that Dudek was authorized to do
so.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Stephen’s instruction, notwithstanding that Dudek also
had some involvement in the union campaign.9
In finding that employees did not believe Dudek was
relaying a genuine threat from Stephen, the judge placed
an unwarranted focus on Dudek’s motive. Under well-
established law, Dudek’s motivation for making the
statement is not relevant to whether the statement tended
to chill employees in the exercise of their protected
rights. See Yoshi’s Japanese Restaurant & Jazz House,
330 NLRB 1339, 1339 fn. 3 (2000) (citing NLRB v. Illi-
nois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)).
The judge also relied in part on the fact that none of the
employees who heard the threat “made any comment to
Dudek or Stephen about it,” suggesting it was not taken
seriously. Under the circumstances, the employees’ si-
lence is not probative of whether employees would rea-
sonably believe Dudek was speaking for management.
Rather, the fact that employees did not make comments
to their employer about the threat may reflect that they
took the threat seriously. Indeed, all four employees
testified that they feared for their jobs because they be-
lieved that Dudek was speaking for Stephen and that
their jobs were in jeopardy. One employee testified that,
“before that threat, we were all voting yes.”
Based on the foregoing, we reverse the judge’s conclu-
sion that Dudek was not acting as the Respondent’s agent
when it came to matters relating to the Union, and we
find that the Respondent is liable for Dudek’s unlawful
threat.
2. Although the judge found that Dudek told employ-
ee Jimmy Mazzeo that Stephen would pay employees to
vote against the Union in the election, he dismissed this
allegation on the ground that Dudek was not an agent of
the Respondent. We affirm the dismissal, but we rely
only on the following reasons. The judge credited
Mazzeo’s testimony that, prior to the election, when
Dudek and Mazzeo were working together at a jobsite,
Dudek told Mazzeo that Stephen claimed he would “pay
guys off for their vote.” According to Mazzeo, Dudek
was “rambling on and on” and once Dudek said, “Mitch
claims that he’s going to bribe guys,” Dudek and Mazzeo
“started laughing” because they “thought it was a joke[,]
that there was no financial way he [Stephen] could do
that . . . to pay guys for their votes.”

9 See Mid-South Drywall Co., 339 NLRB 480, 480–481 (2003);
Cooper Industries, supra at 145–146; Southern Bag Corp., supra at
725; Albertson’s Inc., 307 NLRB 787, 787 (1992), enf. denied on other
grounds 8 F.3d 20 (5th Cir. 1993). We also note the lack of evidence
showing that Stephen ever gave any indication to employees that
Dudek’s authority was limited or that, in particular, he was not author-
ized to speak for Stephen or on his behalf concerning union-related
matters.
“The Board’s well-established test for interference, re-
straint, and coercion under Section 8(a)(1) is an objective
one and depends on ‘whether the employer engaged in
conduct which, it may reasonably be said, tends to inter-
fere with the free exercise of employee rights under the
Act.’” Dover Energy, Inc., 361 NLRB No. 48, slip op. at
2 (2014) (quoting ITT Federal Services Corp., 335
NLRB 998, 1002 (2001)). Accordingly, the question is
whether, given all the surrounding facts and circum-
stances, Dudek’s statement to Mazzeo would reasonably
have been understood by Mazzeo as coercive. We con-
clude that it would not.
During the course of a rambling, ad hoc conversation,
Dudek jested with Mazzeo that Stephen was claiming he
would “pay guys off.” It is clear that this alleged “offer
to bribe” was phrased in a humorous tone, and was im-
mediately dismissed by both individuals as an obvious
joke given the Respondent’s financial condition. These
circumstances contrast sharply with Dudek’s threat of
closure, which he conveyed while handing employees
their paychecks as an express message from Stephen.
Unlike that statement, we find that Dudek’s joke regard-
ing a possible bribe was not reasonably likely to be taken
seriously and thus would not tend to coerce or influence
an employee. Further, there is no credible evidence that
Dudek’s statement was disseminated to any other em-
ployees. For these reasons, we affirm the judge’s dis-
missal of the allegation that the Respondent violated Sec-
tion 8(a)(1) by offering to pay employees in exchange for
their votes against the Union.
B. Other Alleged Violations of Section 8(a)(1)
1. The judge found that, soon after the election, Ste-
phen and Mazzeo had a conversation in which Stephen
stated that he was not changing employees’ compensa-
tion or giving raises until the issue of union representa-
tion was resolved. The judge concluded that Stephen’s
statement did not violate the Act, reasoning that, “Re-
spondent’s decision to delay raises does not violate the
Act unless these raises were of the nature that Respond-
ent was required to give out raises despite the pending
objections.” Although we agree with the dismissal, we
rely only on the following reasons.
An employer may lawfully tell employees that it is not
providing raises in order to avoid creating the impression
of trying to buy votes or otherwise interfere with an elec-
tion proceeding. See Village Thrift Store, 272 NLRB
572, 572–573 (1983) (finding manager’s statement that
raises “would not then be provided because it would look
like ‘bribery’ was a legitimate expression of the Re-
spondent’s concern that it not give the appearance of
unlawful interference in the employee’s exercise of their
Section 7 rights”); see generally Cutter Laboratories,
ACE HEATING AND AIR CONDITIONING CO. 5
Inc., 221 NLRB 161, 168–169 (1975). Here, Mazzeo
summarized his conversation with Stephen as: “it came
up that he [Stephen] wanted to operate the exact same
way, he couldn’t change nothing, so nothing would look
out of place with – you know, in regards to the whole
court hearing.” Mazzeo further testified that Stephen
said the reason for not wanting to give raises was be-
cause Stephen “didn’t want it to look like there was any
bribery going on, and he, you know, misplayed through
this whole Union thing. So he said he’s just going to
keep operating the same way until this whole Union situ-
ation was cleared up.” Stephen largely corroborated
Mazzeo’s version of their conversation. Thus, when Ste-
phen was asked directly by an employee, Mazzeo, about
the likelihood of receiving a raise just after the election,
Stephen responded by explaining that a “court hearing”
was needed to resolve outstanding matters related to the
election and, until those matters were resolved, wages
would remain unchanged because otherwise it might
look like “misplay” or bribery. We find that Stephen’s
statement adequately conveyed that the Respondent’s
purpose in keeping wages unchanged was to avoid the
appearance of attempting to interfere with the ongoing
election proceeding. Stephen did not condition future
raises on a lack of union representation, and he did not
seek to capitalize on the postponed raises as a way to
retaliate against employees or denigrate the Union.10
Thus, nothing Stephen said would make it reasonable for
Mazzeo or any other employee to think that raises would
not be given if the Board certified the Union or if em-
ployees continued to support its organizational efforts.
Accordingly, we do not find that the statement was un-
lawful.
2. The judge dismissed the allegation that the Re-
spondent violated Section 8(a)(1) and engaged in objec-
tionable conduct by granting pay raises to employees
Fred Corbin and Steve Sarosy after the election while
objections were pending. For the following reasons, we
affirm.
The test for whether the Respondent’s decision to
grant pay increases violates the Act is whether the pur-
pose is to impinge upon employee free choice in the
event of a second election. See NLRB v. Exchange Parts
Co., 375 U.S. 405, 409 (1964). Although raises con-
ferred during an election campaign are not per se unlaw-
ful, the Board will draw an inference of improper moti-
vation and interference with employee free choice, unless

10 See and compare Sacramento Recycling & Transfer Station, 345
NLRB 564, 564–565 (2005); Feldkamp Enterprises, 323 NLRB 1193,
1198–1199 (1997); Pacific Southwest Airlines, 201 NLRB 647, 647
(1973), enfd. 550 F.2d 1148 (9th Cir. 1977); Singer Co., 199 NLRB
1195, 1196 (1972).
the respondent employer establishes a legitimate reason
for the timing of the raises.11 See Stabilus, Inc., 355
NLRB 836, 836 fn. 5 (2010) (citing Cardinal Home
Products, 338 NLRB 1004, 1016 (2003)); Speco Corp.,
298 NLRB 439, 439 fn. 2 (1990). The Respondent es-
tablished such a legitimate reason. Specifically, Stephen
testified that he provided the raises in order to retain
Corbin and Sarosy after each presented him with offers
to work at other jobs for higher pay. The General Coun-
sel did not offer any contradictory evidence from which
it could be inferred that the Respondent had an improper
motive. Accordingly, we find that the Respondent did
not violate the Act by granting the raises.
III. SETTING ASIDE THE ELECTION
It is well established that a violation of Section 8(a)(1)
during the critical period of a representation election is
conduct that interferes with the election, unless the viola-
tion is so de minimis that it is “virtually impossible” to
conclude it affected the results. See Mid-South Drywall
Co., 339 NLRB at 481. The Board has consistently
found threats of business closure to substantially inter-
fere with employee free choice and destroy the laborato-
ry conditions that the Board requires in order to guaran-
tee a free and fair election. Id. (citing NLRB v. Gissel
Packing Co., 395 U.S. 575, 611 fn. 31 (1969)).
Here, we have found that the Respondent violated Sec-
tion 8(a)(1) by threatening to shut down the company in
the event that employees elected the Union to represent
them. Although this unlawful threat was made only
once, it was disseminated to half the eligible voters 1
week prior to the election. Therefore, we find that the
business closure threat tainted the outcome of the elec-
tion, necessitating that the election be set aside and a
second election ordered. Accordingly, we shall direct a
second election.
IV. PROPRIETY OF A GISSEL BARGAINING ORDER
The General Counsel additionally seeks a Gissel bar-
gaining order, contending that the possibility of assuring
a fair second election is slight given the Respondent’s
serious and substantial unfair labor practices. See Gissel,
supra at 614–615. The Board has long considered plant
closing threats to be “hallmark” violations because the
coercive effect continues long after the threat was made,

11 As the Supreme Court stated in NLRB v. Exchange Parts Co., su-
pra:
The danger inherent in well-timed increases in benefits is the sugges-
tion of a fist inside the velvet glove. Employees are not likely to miss
the inference that the source of benefits now conferred is also the
source from which future benefits must flow and which may dry up if
it is not obliged.
375 U.S. at 409.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thereby damaging election conditions more severely and
for a longer period than other unfair labor practices. See
Evergreen America Corp., 348 NLRB 178, 180 (2006),
enfd. 531 F.3d 321 (4th Cir. 2008) (citing, inter alia,
Cardinal Home Products, supra at 1011; Gissel, supra at
611 fn. 31); General Trailer, Inc., 330 NLRB 1088,
1097–1098 & fn. 7 (2000) (citing cases where threats
alone were said to be sufficient to support a bargaining
order). The business closure threat that Dudek relayed is
a particularly serious violation because, in addition to
being attributed to the Respondent’s owner and presi-
dent, it was disseminated to four employees in a small
unit of eight employees who all worked at the same
jobsite on a daily basis.
Nevertheless, we are unable to conclude that a bargain-
ing order is necessary to mitigate the effects of the Re-
spondent’s unlawful threat. Significantly, although the
threat of closure was attributed to Stephen, the speaker,
Dudek, is no longer employed by the Respondent, and
there is no evidence that any other member of the Re-
spondent’s management team acted unlawfully during
the critical period. In these circumstances, we are per-
suaded that the Board’s standard remedies will suffice to
ensure that the Respondent will not engage in similar
unlawful conduct in the future. Compare Audubon Re-
gional Medical Center, 331 NLRB 374, 377–378, 378
and cited cases (2000) (no Gissel order warranted where
the respondent no longer employed the supervisory or
management personnel who perpetrated the unfair labor
practices); with Stevens Creek Chrysler Jeep Dodge,
Inc., 357 NLRB 633, 637–638 (2011), enfd. sub nom.
Matthew Enterprise v. NLRB, 498 Fed. Appx. 45 (D.C.
Cir. 2012) (Gissel order warranted where the nature of
the respondent’s multiple hallmark violations, including
discharge of a lead union supporter and plant closing
threats, made the possibility of a fair election slight); and
Q-1 Motor Express, 308 NLRB 1267, 1268 (1992), enfd.
25 F.3d 473 (7th Cir. 1994) (Gissel order warranted
where the respondent’s pervasive scheme of unlawful
conduct, which included discharges, threats, and other
unlawful acts of intimidation that were demonstrably
visited upon each employee in a small unit, made it un-
likely that traditional remedies and the passage of time
could alone ensure a fair election).
CONCLUSIONS OF LAW
1. The Respondent, Ace Heating and Air Conditioning
Company, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, Sheet Metal Workers International As-
sociation, Local Union No. 33, AFL–CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act
and engaged in objectionable conduct by threatening to
close the business if employees selected the Union to
represent them.
REMEDY
Having found that the Respondent, Ace Heating and
Air Conditioning Company, Inc., has unlawfully threat-
ened employees with business closure, we shall order the
Respondent to cease and desist and to take certain af-
firmative action designed to effectuate the policies of the
Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Ace Heating and Air Conditioning Compa-
ny, Inc., Cleveland, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening to close the business if employees se-
lect the Sheet Metal Workers International Association,
Local Union No. 33, AFL–CIO, or any other union, to
represent them.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to 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 Cleveland, Ohio, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 any current em-

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ACE HEATING AND AIR CONDITIONING CO. 7
ployees and former employees employed by the Re-
spondent at any time since May 14, 2014.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the election held on May
21, 2014, in Case 08–RC–127213 is set aside and that the
case is severed and remanded to the Regional Director
for Region 8 to conduct a second election as directed
below.
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
diately before the date of the Notice of Second Election,
including employees who did not work during that period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll peri-
od, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by the Sheet Metal Workers International
Association, Local Union No. 33, AFL–CIO.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. NLRB v. Wyman-
Gordon Co., 394 U.S. 759 (1969); Excelsior Underwear,
156 NLRB 1236 (1966). Accordingly, it is directed that
an eligibility list containing the full names and addresses
of all the eligible voters must be filed by the Respondent
with the Regional Director within 7 days from the date of
the Notice of Second Election. North Macon Health
Care Facility, 315 NLRB 359 (1994). The Regional
Director shall make the list available to all parties to the
election. No extension of time shall be granted by the
Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections
are filed.
Dated, Washington, D.C. June 15, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
I agree with my colleagues’ disposition of the issues in
all respects except one. Unlike my colleagues, I would
affirm the judge’s dismissal of all the allegations, includ-
ing the judge’s dismissal of the claim that the Respond-
ent violated Section 8(a)(1) of the National Labor Rela-
tions Act (NLRA or the Act) by threatening employees
that it would close the business if the Union won the
election. Thus, I would uphold the judge’s dismissal of
the complaint in its entirety and his resulting determina-
tion that the results of the election should stand.
This case involves a representation election in a unit of
eight employees employed by a small Cleveland-area
heating and air conditioning contractor. Nine employees
cast ballots in the election, but it was determined that
employee Ed Dudek’s ballot should be excluded on the
basis that Dudek is a statutory supervisor under Section
2(11). The election resulted in a 4-4 tie, which means
the Union lacked the majority support needed to result in
representative status.1 However, my colleagues set aside
the first election and direct a second election based solely
on an alleged statement Dudek conveyed to four unit
employees approximately a week before the election.
Dudek told these four employees that, at the direction of
the Respondent’s owner and President, Mitchell Stephen,
he (Dudek) was informing them the Respondent would
close its doors if employees voted for the Union. There

1 Sec. 9(a) of the Act states, in relevant part: “Representatives des-
ignated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes, shall
be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment . . .” (empha-
sis added).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are two important facts regarding this alleged statement
that are uncontroverted. First, Dudek (the supervisor)
was openly and notoriously prounion, and he made the
statement only to employees who appeared to support the
Union. Second, there is no evidence that Stephen (the
Employer’s president and owner) campaigned against the
Union. Indeed, there is no evidence that Stephen said
anything to employees about the Union. Stephen denied
telling Dudek to threaten employees with business clo-
sure, and the judge declined to find that Stephen did so.
Typically, any statement made by an employer’s statu-
tory supervisor is treated as a statement made by the em-
ployer itself. However, as the judge observed, when the
supervisor in question is openly prounion, further inquiry
is warranted to determine whether employees would rea-
sonably view the supervisor as speaking for manage-
ment. See Indianapolis Newspapers, Inc., 103 NLRB
1750, 1751 (1953), enf. denied 210 F.2d 501 (7th Cir.
1954); Montgomery Ward & Co., 115 NLRB 645, 646–
648 (1956), enfd. 242 F.2d 497 (2d Cir. 1957), cert. de-
nied 355 U.S. 829 (1957).2 My colleagues acknowledge
that Dudek “had some involvement, or even alignment,
with the Union’s representation effort.” That is an un-
derstatement. Dudek was the leading supporter of and
advocate for the Union. He arranged the union organiz-

2 My colleagues distinguish Indianapolis Newspapers and Mont-
gomery Ward on the basis that in those cases, the union and employer
entered into an agreement to include statutory supervisors in the unit. It
does not follow, however, that this is the only circumstance in which
employees would reasonably reject the notion that the supervisor was
speaking for management. Indeed, in Indianapolis Newspapers, the
Board also relied on the fact that the supervisors in question “were
active on [the union’s] behalf.” 103 NLRB at 1751. Here, Dudek was
more than just “active” on the Union’s behalf. He spearheaded the
entire organizing drive. Moreover, he voted in the election, and it was
not until after the election that Dudek was found to be ineligible to
vote. In these circumstances, I would find Indianapolis Newspapers
and Montgomery Ward applicable here.
My colleagues cite two cases for the proposition that an employer is
bound by the statements of its supervisors even when their sympathies
are aligned with the union: Daniel Construction Co., 241 NLRB 336
(1979), and Maidsville Coal Co., 257 NLRB 1106 (1981), enfd. en
banc 718 F.2d 658 (4th Cir. 1983), cert. denied 465 U.S. 1079 (1984).
Neither case warrants reversing the judge’s decision. In Maidsville
Coal, the judge distinguished Montgomery Ward based on the “limited
extent” of the supervisor’s “earlier” contacts with the union, 257 NLRB
at 1122–1123, whereas Dudek’s contacts with the Union and his other
prounion activities were extensive and ongoing. As for Daniel Con-
struction, the judge in that case altogether neglected to cite or discuss
either Indianapolis Newspapers or Montgomery Ward, and it is impos-
sible to determine whether the Respondent’s exceptions drew the
Board’s attention to either of those cases. Moreover, in Daniel Con-
struction, the employer interrogated and discharged supervisors known
to sympathize with the union, sending a clear message that any union-
related threats uttered by those supervisors reliably reflected the views
of management regardless of the supervisors’ own union sympathies.
241 NLRB at 340.
ers’ first on-site meeting with employees and introduced
the union organizers to the employees. He signed an
authorization card at that meeting in full view of other
employees and watched approvingly as other employees
signed cards. He was in frequent phone and text contact
with a union organizer, he urged the employees to vote
for the Union, and he himself voted in the election. Un-
der these circumstances, absent actual ratification of
Dudek’s statement by owner Stephen himself, I do not
believe the Board can reasonably find that employees
would view Dudek as speaking for management when he
claimed to be relaying a closure threat from Stephen.
The judge found the circumstances here “quite curi-
ous” and “extremely suspicious.” I agree with the judge.
The Respondent did not campaign against the Union.
There is no evidence that its owner said anything at all to
employees about the Union’s organizing campaign.
Then, a week before the election, the unquestioned driv-
ing force behind the organizing effort—Dudek—claims
that the owner directed him to threaten employees with
plant closure if they voted for the Union. I agree with
the judge that it is not “far-fetched” to suspect that the
threat was part of a back-up plan to secure a second elec-
tion if the Union lost the first one. If so, based on my
colleagues’ decision in this case, the plan worked. Re-
gardless whether there was such a plan, however, I be-
lieve that, under the circumstances presented here, em-
ployees would not have reasonably thought that Dudek
was speaking for the Respondent when he claimed to be
relaying a plant closure threat from the owner. I would
dismiss the complaint in its entirety and uphold the elec-
tion.
Accordingly, I respectfully dissent in relevant part.
Dated, Washington, D.C. June 15, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
ACE HEATING AND AIR CONDITIONING CO. 9
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten to close the business if you se-
lect the Sheet Metal Workers International Association,
Local Union No. 33, AFL–CIO, or any other union, to
represent you.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
ACE HEATING AND AIR CONDITIONING
COMPANY, INC.
The Board’s decision can be found at
http://www.nlrb.gov/case/08–CA–133965 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National La-
bor Relations Board, 1015 Half Street SE, Washington,
DC 20570, or by calling (202) 273–1940.
Rudra Choudhury, Esq., for the General Counsel.
Seth P. Briskin, Esq., (Meyers Roman, Friedberg & Lewis), of
Cleveland, Ohio, for the Respondent.
Eli Baccus, Esq., (Widman & Franklin, LLC), of Toledo, Ohio,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Cleveland, Ohio on December 8 and 9, 2014. Sheet
Metal Workers International Association Local Union No. 33
(the Union) filed the charges in this matter on August 4, 2014.
The Regional Director issued the complaint on September 30,
2014, and consolidated the unfair labor practice cases with the
Union’s objections to conduct affecting the results of the May
21, 2014 representation election.
The results of that election were that 4 votes were cast in fa-
vor of the Charging Party Union and 4 were cast against. The
vote of foreman Ed Dudek was challenged by the Board Agent,
since Respondent did not include him on the list of employees
eligible to vote, G.C. Exh. 2(f), page 3 of the hearing officer’s
report. A hearing was conducted on the challenge. The hearing
officer found that Dudek was a statutory supervisor pursuant to
Section 2(11) of the Act. No exceptions were filed to the hear-
ing officer’s report. Therefore, the Union did not win a majori-
ty of the votes cast and was not certified as the bargaining rep-
resentative of Respondent’s employees.
The essence of the complaint and the Union’s objections are
as follows:
1) Respondent, by Ed Dudek, at the direction of Respond-
ent’s Owner, Mitchell Stephen, threatened employees that Re-
spondent would close if they voted for union representation.
2) Dudek, at Stephen’s direction, told employees that Re-
spondent would pay them in exchange for their voting against
union representation.
3) Dudek interrogated employees about their union sympa-
thies and how they would vote.
In addition to the unfair labor practices that mirror the Un-
ion’s objections, the General Counsel also alleges that Re-
spondent violated the Act in denying employees a scheduled
pay increase about a week after the representation election.
Respondent’s defense is essentially that Dudek was acting as
an agent of the Charging Party Union, not as an agent of Re-
spondent, during the relevant time period, April 18–May 21,
2014.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the brief filed by
the General Counsel and the oral closing argument of the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, installs and services heating, ven-
tilation and air conditioning systems in the Cleveland, Ohio
area. It annually purchases and receives at its Cleveland, Ohio
facility goods valued in excess of $50,000 directly from points
outside of Ohio. 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 organ-
ization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
David Coleman, a union organizer, met with several em-
ployees of Respondent on Friday, April 18, 2014. The follow-
ing Monday, April 21, he met a group of these employees at the
beginning of their workday at the Shoreway Lofts project in
Cleveland and distributed union authorization cards.2 Six of
the eight bargaining unit employees signed an authorization
card. Another, Steve Sarosy, signed a card later that morning.
Foreman/Supervisor Ed Dudek also signed an authorization
card, Tr. 48, 293. The only unit member who did not sign an

1 The transcript contains a number of errors. Two that I note are the
following:
Tr. 465, line 5 should read, “saucy goose, saucy gander.”
Tr. 472, line 2, should read, “April 21.”
2 The Shoreway Lofts project involved the conversion of a ware-
house into apartments or condominiums.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
authorization card was Charles Ashton, who normally did ser-
vice work with owner Mitchell Stephen. The employees who
signed authorization cards did almost exclusively installation
work. The installation crew was supervised by Dudek.
Organizer Coleman went to Respondent’s office on the af-
ternoon of April 21 and presented a letter to Respondent’s
owner, Mitchell Stephen. Coleman asked for voluntary recog-
nition of the Union as the representative of Respondent’s full
time installers and service technicians. Stephen told Coleman
that he needed to consult with an attorney. On the evening of
April 21, Dudek called Coleman. He reported that Mitchell
Stephen had asked Dudek which employees had signed author-
ization cards. Dudek told Coleman that he reported to Stephen
that all the employees (or all the installers) had signed a card.
On April 24, 2014, the Union filed a petition to represent Re-
spondent’s installers and service technicians. On that date,
Organizer Coleman met with employees at the Shoreway
jobsite. Stephen arrived and he and Coleman had a brief dis-
cussion. Stephen accused Coleman of trying to steal his em-
ployees. Coleman told him that was incorrect; that the Union
wanted recognition and wanted Respondent to negotiate a col-
lective-bargaining agreement with it. Stephen responded that
his employees could choose to be union, but Ace Heating was
not going to be a union company.
Stephen did not talk to employees directly about the union
organization campaign. He did not, so far as this record shows,
conduct a campaign to oppose the Union—except arguably
through Dudek.
The election was scheduled for May 21. One week prior, on
Wednesday, May 14, Dudek, at the Shoreway Lofts project,
was handing out paychecks to installers Joe Huckoby, Noble
Hall, Brian Orocz and Chris Sikora at the end of their workday.
While doing so, Dudek said that at the direction of Mitch Ste-
phen, he was informing these employees that Respondent
would close its doors if they voted for union representation.
There was no discussion about this alleged threat amongst the
employees and none of them asked Stephen about it.3
Installers James Mazzeo and Steve Sirosy were apparently
no longer working at Shoreway Lofts on this date. Stephen
denies giving any such instructions to Dudek. Since I do not
find Dudek any more credible than Stephen, I do not find that
Stephen authorized Dudek to threaten employees with job loss
if they voted for union representation.4
Dudek testified that Stephen told him to pass this message
along to employees on at least 5 occasions, and that he did so.
However, the record is quite clear that Dudek transmitted this
message only once.5

3 Three years earlier, Brian Orocz went to Mitchell Stephen when he
heard similar rumors.
4 Dudek’s motivation is quite curious. He made the statement in
question only to those employees who appear to have supported the
Union. Since he favored union representation, it is difficult to under-
stand why he would pass such a statement along, even if Stephen did
tell him to threaten employees. Respondent’s suggestion in its closing
argument that this was part of a back-up plan for filing objections if the
Union lost the election, is not farfetched.
5 Service Technician Charles Ashton did tell employees that they
would lose their jobs if they voted for union representation. However,
Forman Dudek also testified that on May 21, he interrogated
installer Fred Corbin as to how he was going to vote. There is
no corroboration for this testimony and I do not credit it.6
Moreover, if Dudek did interrogate Corbin, he did not neces-
sarily do so as an agent of Respondent. Dudek may also have
asked Jimmy Mazzeo how he intended to vote.
Dudek kept in contact with organizer Coleman throughout
the critical period between the filing for representation on April
24 and the election on May 21. The record contains text mes-
sages between Dudek and Coleman on April 30 and May 7,
2014.
Foreman Dudek also testified that Stephen told him he would
pay employees to vote No in the representation election. Ste-
phen denies this. I do not find Dudek sufficiently more credi-
ble than Stephen to credit his testimony.
Dudek told installer Jimmy Mazzeo that Stephen would pay
employees to vote against union representation. Dudek did not
say this to any other employees.7 Respondent gave raises to
installers Fred Corbin and Steve Sirosy after the election.
Sirosy at one time expressed support for the Union but publi-
cally changed his mind before the election. There is no evi-
dence that Corbin and Sirosy were promised raises prior to May
21.
About a week after the May 21 election, apparently after the
Union filed objections to conduct affecting the results of the
election, Mitchell Stephen told Jimmy Mazzeo that he had
planned to give employees raises but was going to hold off until
the representation issues were completely resolved.
Analysis
Was Ed Dudek an agent of Respondent in making statements
that violate Section 8(a)(1) of the
National Labor Relations Act?
The Board applies common law agency principles in deter-
mining who is an agent under the Act. When applied to labor
relations, agency principles must also be broadly construed in
light of the legislative policies embedded in the Act. A party
may be bound by the conduct of those it holds out to speak and
act for it, even though there is no proof that specific acts were
actually authorized or subsequently ratified. Atelier Condomin-
ium & Cooper Square Realty, 361 NLRB No. 111 (November
26, 2014), slip op. p. 36. Braun Electric Co., 324 NLRB 1, 2
(1997), Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299

there is no allegation that Ashton was an agent of the Respondent. As
of the December 8–9 hearing, only Chris Sikora, of the openly
prounion employees, appears to have been still working for Respond-
ent. Huckoby and Orocz were terminated and Hall was laid-off.
6 I also decline to credit Dudek’s testimony at Tr. 90 that in April he
told employees that Mitch Stephen told him to tell them that if they
wanted union jobs, to take union jobs, but leave Stephen “out of it.”
This testimony is not corroborated by any employee.
7 Curiously, Dudek testified that he did not talk to any employees
about Stephen’s statement about bribing employees. However, I credit
Mazzeo, a witness unsympathetic to the Union and the General Coun-
sel, that Dudek did tell him this.
ACE HEATING AND AIR CONDITIONING CO. 11
(1986).8 Statements of a supervisor or agent may be imputed to
an employer even if that employer was not aware that the
statements were made, Jays Foods, Inc. v. NLRB, 573 F.2d 438
(7th Cir. 1978).
Common law principles incorporate the principles of implied
and apparent authority. Apparent authority is created through a
manifestation by the principal to a third party that supplies a
reasonable basis for the latter to believe that the principal has
authorized the agent to do the act in question, Shen Automotive
Dealership Group, 321 NLRB 586, 593 (1996). Another way
the Board has stated this principle is “whether under all the
circumstances the employees would reasonably believe that [a
person] was reflecting company policy and speaking and acting
for management,” Community Cash Stores, 238 NLRB 265
(1978).
The hearing officer’s report, to which exceptions were not
taken, establishes that Ed Dudek was a supervisor within the
meaning of Section 2(11) of the Act. As set forth in the Gen-
eral Counsel’s brief, this normally forecloses further inquiry as
to his agency status, specifically whether the statements he
made can be imputed to the Respondent. However, when a
supervisor, such as Dudek, is actively involved on behalf of the
Union, further inquiry is warranted as to whether he was acting
for and on behalf of management when making statements that
would otherwise violate Section 8(a)(1), Indianapolis Newspa-
pers, Inc., 103 NLRB 1750, 1751 (1953). Montgomery Ward &
Co., Incorporated, 115 NLRB 645, 647–648 (1956).9
There is no question that generally Ed Dudek was an “agent”
of Respondent. When he told employees to do work on the
jobsite, they would reasonably believe that he was speaking for
management. Mitchell Stephen even referred to Dudek as his
business partner, although there is no evidence that Dudek had
an ownership interest in Ace Heating.
An individual may be an agent of the employer for one pur-
pose and not another, Pan-Osten Co., 336 NLRB 305, 306
(2001). Normally, it is the burden of the party who asserts that
an individual has acted with apparent authority to establish the
agency relationship, Id. However, this principle does not apply
to an individual who is a statutory supervisor. Nevertheless,
viewing the record as a whole, I conclude that in matters relat-
ing to the Union organizing drive, Ed Dudek was not acting as
Respondent’s agent.
Dudek signed a union authorization card in front of 6 of the
unit employees who signed cards. Sarosy, the 7th unit member,
was also aware of Dudek’s support for the Union. Dudek facil-
itated the Union’s contact with employees and exchanged text
messages with Organizer Coleman as late as May 7.
None of the four employees, to whom the alleged threat was
made on about May 14, made any comment to Dudek or Ste-

8 The language of Section 2(13) defining “agent” states that actual
authorization or subsequent ratification of specific acts is not control-
ling in determining whether a person is an “agent.”
9 Also see National Apartment Leasing, 272 NLRB 196, 197 (1984)
in which the Board accepted as the law of the case the decision of the
United States Court of Appeals for the Third Circuit in NLRB v.
Schroeder, 726 F.2d 967 (3d Cir. 1984). The Court held that whether a
statutory supervisor’s violative statements could be imputed to the
employer was a rebuttable presumption.
phen about it. This is another consideration that leads me to
conclude that they did not believe that Dudek was speaking on
behalf of Stephen, or that Stephen had told Dudek to threaten
them with job loss. Furthermore, assuming Dudek made such a
statement, his motives are extremely suspicious. There is no
reason why someone who wanted the Union to prevail would
make such a statement to prounion employees 1 week before
the election.
The Union considered Dudek to be operating on its behalf
and not on Respondent’s. In filing objections, it argued that
Dudek was an “employee” whose vote should be counted.
However, it also contended that if he was determined to be a
statutory supervisor that his conduct should be considered ob-
jectionable. I conclude that the Union expected Dudek to vote
for union representation by Local 33 and its desire to impute his
statements to Respondent was a fall-back position in the event
its effort to overturn the challenge was unsuccessful.
Dudek was not acting as Respondent’s agent when making
all the statements alleged to have violated Section 8(a)(1).
Therefore I dismiss all the complaint items predicated on
statements he made to unit employees.
The General Counsel failed to establish that Respondent violat-
ed the Act in not granting employees a scheduled pay increase
because of their support for the Union.
The only evidence supporting the General Counsel’s allega-
tions in complaint paragraph 12 is the testimony of Jimmy
Mazzeo. Mazzeo testified that a week after the election, Mitch
Stephen told him that he was not changing employee’s com-
pensation or giving raises until the issue of union representation
was resolved. Thus, there is no evidence that Stephen was
retaliating against any employee because of their union support.
In this regard, I infer that Stephen was aware that Mazzeo no
longer supported the Union prior to the election on May 21.10
Respondent’s decision to delay raises does not violate the
Act unless these raises were of the nature that Respondent was
required to give out raises despite the pending objections. That
would be the case only if these raises were given with such
regularity that employees were expecting raises, or if the em-
ployer had informed the employees that they were getting raises
prior to the filing of the representation petition, DMI Distribu-
tion of Delaware, 334 NLRB 409, 411 (2001); B & D Plastics,
302 NLRB 245 fn. 2 (1991); Philadelphia Coca-Cola Bottling
Co., 340 NLRB 349, 353–354 (2003).
On the contrary, this record indicates the Respondent gave
out wage increases in a “haphazard fashion.” Thus, had it giv-
en raises during the critical period between the filing of the
representation petition and the election, it would most likely
have violated the Act and engaged in objectionable conduct
warranting either a rerun of the election or a Gissel bargaining
order. Once the election was over, with objections and chal-
lenges pending, Respondent granted raises at its peril. That is
to say had the election been overturned and the Union certified,

10 Mazzeo called fellow employee Chris Sikora 4 days before the
election and told Sikora to vote against union representation. Mazzeo
also told Sikora that he would speak to Mitch Stephen about giving
Sikora a raise, Tr. 289–290.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it would have been in violation of Sections 8(a)(5) and (1).11
Board law regarding an employer’s unilateral changes during
the period in which objections or ballot challenges are pending
was summarized as follows in Palm Beach Metro Transporta-
tion, LLC, 357 NLRB No. 26 (July 26, 2011):
Absent “compelling economic considerations,” an employer
“acts at its peril” by unilaterally changing working conditions
during the pendency of election issues and where the final de-
termination has not yet been made. And where the final de-
termination on the objections results in the certification of rep-
resentative the Board will find the employer to have violated
Section 8(a)(5) and (1) of the Act for having made such uni-
lateral changes, Mike O’Connor Chevrolet, 209 NLRB 701
(1974), enf. denied on other grounds, NLRB v. Mike
O’Connor, 512 F.2d 684 (8th Cir. 1975).
Since the Union was not certified and will not be certified as
a result of my decision, the Mike O’Conner principle has no
relevance to this case. Thus, I find that Respondent did not

11 An employer does not violate the Act it if tells employees that
benefits previously provided in an indefinite manner will be deferred
during the pendency of organizational efforts where they make clear
that the purpose in doing so is to avoid the appearance of interference,
Village Thrift Store, 272 NLRB 572 (1983).
violate the Act in delaying raises for unit employees or telling
Jimmy Mazzeo that it was doing so.
The General Counsel’s motion to amend alleging that
Respondent violated the Act in giving two employees raises
while objections were pending
The General Counsel also alleges, pursuant to a motion to
amend the complaint, that Respondent violated the Act in
granting raises to Sarosy and Corbin. Since I find that the Gen-
eral Counsel and the Union have not prevailed on proving ob-
jectionable conduct, such raises do not violate the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The complaint is dismissed.
I also recommend that the Board certify the results of the
May 21, 2014 election.
Dated, Washington, D.C., January 15, 2015.

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.