Bliss Clearing Niagara, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 2005

344 N.L.R.B. 296 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 26
296
Bliss Clearing Niagara, Inc. and International Asso-
ciation of Machinists and Aerospace Workers,
AFL–CIO and William L. Moran. Cases 7–
CA–46528, 7–CA–47566, and 7–CA–47070
February 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On November 5, 2004, Administrative Law Judge Paul
Buxbaum issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, 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, find-
ings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bliss Clearing Niagara, Inc.,
Hastings, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
A. Bradley Howell, Esq., for the General Counsel.
Robert W. Sikkel, Esq., of Holland, Michigan, for Bliss Clear-
ing Niagara, Inc.
David Porter, of Cincinnati, Ohio, for the International Asso-
ciation of Machinists and Aerospace Workers, AFL–CIO.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 the findings.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by verbally harassing employee William Moran, we rely on
Supervisor Daniel Gilbert’s statement to Moran that he did not want
Moran “to get mixed up” in the “stuff going on with the union and the
NLRB.” This statement had a reasonable tendency to interfere with,
restrain, or coerce Moran in the exercise of protected activity.
Member Schaumber agrees with his colleagues that this statement
was coercive and constituted a violation of Sec. 8(a)(1). He would not,
however, characterize it as “verbal harassment.”
Member Schaumber also agrees with his colleagues that Supervisor
Gilbert’s conduct on June 30, 2003, constituted unlawful creation of the
impression of surveillance. He therefore finds it unnecessary to pass on
whether Gilbert’s statement to employee Moran on May 28, 2003,
standing alone, would also constitute an unlawful creation of the im-
pression of surveillance. The finding of an additional violation would
be cumulative and would not affect the remedy.
DECISION
STATEMENT OF THE CASE
PAUL BUXBAUM, Administrative Law Judge. This case was
tried in Grand Rapids, Michigan, on June 2, 3, and 4, and July
26, 27, and 28, 2004. The initial charge was filed by the Union
on August 18, 2003, and a complaint was issued October 21,
2003. William L. Moran filed a charge on January 21, 2004.
On March 26, 2004, the Regional Director issued an order con-
solidating cases, amended consolidated complaint, and notice
of hearing. During the interregnum in the trial proceedings, the
Union filed an additional charge on June 8, 2004. On July 2,
the Regional Director issued a complaint arising from this
charge.1
The General Counsel alleges that the Company violated Sec-
tion 8(a)(1) of the Act by informing employees that their union
activities were under surveillance, coercively interrogating
employees about their union sympathies and activities, and
threatening closure of the plant if the employees chose union
representation. It is also alleged that the Company violated
Section 8(a)(1) and (3) of the Act by discharging two employ-
ees, Brian Shapley and Duane Schantz, because they provided
assistance to the Union and engaged in concerted activities.
Finally, the General Counsel contends that the Company vio-
lated Section 8(a)(1) and (4) of the Act by verbally harassing
William L. Moran, issuing two written warnings and a 3-day
suspension to Moran, and refusing to allow him to work a
scheduled shift because he gave testimony and filed charges
under the Act. The Company filed answers to the complaints,
denying all of the material allegations.
As described in detail in the decision that follows, I conclude
that a supervisor and agent of the Company did create an im-
pression that the employees’ union activities were under sur-
veillance and threatened an employee with closure of the facil-
ity in the event the workforce chose union representation. Ad-
ditionally, that supervisor and agent coercively interrogated
employees about their union sympathies and activities. I also
find that the General Counsel has met his burden of showing
that Shapely and Schantz engaged in union activities, that the
Company was aware of their participation, and that their par-
ticipation in such activities formed a substantial motivating
factor in the Company’s decision to terminate their employ-
ment. I further conclude that the Company failed to demon-
strate that Shapely and Schantz would have been discharged
regardless of their participation in union activities. As to the
allegations involving Moran, I find that a company supervisor
and agent verbally harassed him due to his participation in pro-
ceedings before the Board. I also find that the General Counsel
met his burden of establishing that Moran was denied the op-
portunity to work a previously scheduled shift due to his par-
ticipation in these proceedings. The Company failed to estab-
lish that Moran would have been denied the opportunity to
work this shift regardless of such participation. In addition, the

1 In conjunction with the filing of the new complaint, counsel for the
General Counsel filed a motion to consolidate cases. (GC Exh. 1(w).)
The Company did not oppose this motion (Tr. 562–663) and I granted
it, applying the analysis described in Folsom Ready Mix, 338 NLRB
1172 fn. 1 (2003).
BLISS CLEARING NIAGARA, INC. 297
General Counsel has met his burden of establishing that the
Company was aware of Moran’s involvement in the proceed-
ings before the Board and that the issuance of two written
warnings and a 3-day suspension to Moran were substantially
motivated by this involvement. Lastly, I determine that the
Company met its burden of demonstrating that it would have
issued the two written warnings and the 3-day suspension to
Moran regardless of his involvement in these proceedings.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, is engaged in the remanufac-
ture and replacement of parts for industrial presses at its facility
in Hastings, Michigan, where it annually receives gross revenue
in excess of $50,000 and purchases and receives products,
goods, and materials valued in excess of $50,000 directly from
firms located outside the State of Michigan. The Company
admits3 and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Factual Background
Bliss Clearing Niagara, Inc., is a Delaware corporation that
commenced operation on May 11, 2001. The Company was
created in the aftermath of the bankruptcy of a predecessor
corporation. It is a wholly owned subsidiary of CIT Group,
Inc., a commercial finance company that was one of the prede-
cessor’s creditors. Two of CIT’s risk management executives
are in charge of the Company’s operations. Karen Adams, vice
president of risk management for CIT, serves as vice president
of the Company and liaison with the parent organization. She
spends the majority of her time at the Company’s sole facility
in Hastings, Michigan. In turn, Adams reports to Ben Lan-
driscina, who serves both as an executive vice president of CIT
and as CEO of the Company. Landriscina provides oversight
from his offices at CIT in New York.
The Company’s rather unusual name stems from its forma-
tion out of the remnants of three venerable and now extinct
producers of industrial presses. In other words, the current
Company provides after market parts, service, and rebuilding
for large metal forming equipment that was manufactured by
the former Bliss, Clearing, and Niagara companies. It employs
approximately 40 production workers, many of them engaged
in the operation of the machines required to accomplish the
Company’s business.
There was general agreement that a significant focus of at-
tention by management was on the issue of production errors.
These manufacturing errors could result from a variety of

2 In an addendum to this decision, I have corrected certain material
errors in the transcription.
3 See the Company’s answer to the consolidated complaint. (GC
Exh. 1(p), pars. 3, 4, and 6.)
causes, including operator mistakes, problems with the ma-
chines, errors in methodology, or defects in materials. The
Company maintained a quality control department charged with
documenting, analyzing, and minimizing such errors. Errors
were documented through the use of computer generated dis-
crepancy reports.
One of the efforts to reduce errors was directed at the issue
of operator mistakes. At first, management created an incentive
program to provide small financial awards to those machine
operators with the best records. Early in 2003, a different ap-
proach to the problem was initiated. Frederic Stowell, the CEO
at that time, testified that,
[w]e had a program for rewarding employees for having few
errors or no errors and it was successful with some employ-
ees, but, unfortunately, not successful with several employees
and we decided about that time we needed to take a different
approach to getting the quality to an acceptable level and be-
gan some disciplinary actions with the employees who were
not able to meet the quality requirements.
(Tr. 447–448.) Implementation of the new policy began with a
comparative examination of each machinist’s discrepancy re-
ports covering the period from September 2002 through March
31, 2003.
After review of the history of operator errors reflected in
these reports, management selected the four employees deemed
to have the poorest records and decided to issue each of them a
3-day suspension. In order to avoid penalizing customers who
were waiting for orders by causing delay resulting from the loss
of the services of four employees at the same time, it was de-
cided to stagger the suspensions over the following weeks.
On April 1, the first suspension was issued to Mike Shapley,
a machinist who had been employed by the Company and its
predecessors since 1995. Stephen Wales, the Company’s
manufacturing manager, imposed Shapley’s discipline. It was
documented in an employee warning notice prepared by Wales
indicating that Shapley had the highest error rate during the
period under examination.4 In the notice, Wales opined that
Shapley was “capable of eliminating his operator errors but he
is not applying himself.” (GC Exh. 2, p. 1.) Wales also noted
that Shapley’s performance would be evaluated again on
“5/1/03 or before.” (GC Exh. 2, p. 1.) Shapley served his 3-
day suspension without pay from April 2 through 4.
Ten days after the issuance of Shapley’s suspension, identi-
cal discipline was imposed on another machinist, Mark Jensen.
Wales also documented this action through use of an employee
warning notice similar to that prepared for Shapley. (GC Exh.
13.) On May 6, Wales met with the remaining two employees
selected for suspension due to excessive operator errors, Duane
Schantz, a machinist who had been employed by the Company
and its predecessors since 1997, and Vern Hayes. Each man
was issued an employee warning notice. (GC Exhs. 3 and 17.)
On Schantz’ notice, Wales observed that, “Duane is capable of

4 Discrepancy reports attached to the disciplinary notice showed that
Shapley had made errors costing $4,679.47 during the period examined.
His last error occurred on March 18.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD298
quality work. He needs to pay attention and apply himself.”5
(GC Exh. 3, p. 1.) Wales wrote that a further evaluation of
Schantz’ performance would be conducted on “6/6/03 (or be-
fore).” (GC Exh. 3, p. 1.) Schantz and Jensen served their
suspensions from May 7 through 9.
It is evident that Shapley was unhappy with his suspension.
Shortly thereafter, he filed an application with another em-
ployer. More pertinent to this case, during this period Shapley
began discussing his interest in union representation with other
employees.6 One of them, Wayne McClelland, testified that
during such a discussion, they decided that Shapley should
“check on a couple of different unions.” (Tr. 245.) A week
later, Shapley told McClelland that he had contacted the UAW
and was referred by their staff to the International Association
of Machinists and Aerospace Workers.
On May 3, Shapley telephoned Stacey Arnold, business rep-
resentative for District 97 of the Union. Although Arnold was
not available, Shapley left a message indicating that he was
“interested in having a union at Bliss.” (Tr. 279.) Due to the
press of other business and activities, Shapley and Arnold
traded telephone messages until they finally spoke on May 27.
After discussing the issue of union representation, Arnold out-
lined the organizing process for Shapley. She instructed him to
obtain the names, addresses, and telephone numbers of em-
ployees “to see who’s all interested.” (Tr. 24.)
On the next day, May 28, Shapley began to solicit the infor-
mation sought by Arnold. He collected names and contact
information from employees in the parking lot before his shift,
during the shift, and while on break.7 Among those who pro-
vided the desired information was Schantz. Around noon,
Shapley asked Schantz to obtain the address of another em-
ployee. Schantz spoke with that employee who reluctantly
gave him the contact information. Schantz passed it along to
Shapley at approximately 2:30 p.m.
The testimony reflects that during the noon hour manage-
ment made its first response to the employees’ organizing activ-
ity. A maintenance worker, William Lawrence Moran,8 testi-
fied that at approximately 12:30 p.m., a supervisor, Daniel Gil-
bert, approached him and said, “Larry, I’ve heard some people
are trying to form a union and they’re asking for names and
addresses.” (Tr. 111.) Moran responded by indicating that he
was unaware of any organizing activity. Gilbert asserted that,
“I hear one of them is Dewey.” (Tr. 111.) This was a reference
to Duane Schantz, who is universally known as Dewey. As
Gilbert concluded the conversation, he asserted to Moran that,

5 Discrepancy reports attached to Schantz’ notice showed errors
costing $4,244.22 during the period examined. The last error occurred
on March 18.
6 Three employees, Wayne McClelland, Duane Schantz, and John
Heatherington testified to having such conversations with Shapley
during this time.
7 A fellow employee, Greg Cole, corroborated Shapley’s testimony
regarding his organizing activities on this crucial date. Cole testified
that Shapley approached him prior to the beginning of the shift. He
asked Cole if he was “interested in forming a union . . . [a]nd . . . if I
was to give him my name, address and phone number.” (Tr. 225.)
Cole provided this information to Shapley later in the workday.
8 Moran goes by the name of “Larry.”
“well there’s going to be some changes around here today.”
(Tr. 111.)
In his own testimony, Gilbert denied having this conversa-
tion or any other conversation with Moran on May 28 regarding
union activity. I do not credit this denial. In the first instance,
Gilbert’s own testimony concerning his activities and opinions
on May 28 lends credence to Moran’s report. In both testimony
and written accounts (GC Exhs. 52 and 54), Gilbert indicated
that he had focused his attention on the activities of Shapley
and Schantz on this key date. In itself, this is unusual since
Gilbert did not ordinarily supervise these two employees. Gil-
bert went on to state that after noticing that these men were
away from their work areas, he reported this fact to CEO Stow-
ell. Indeed, he testified that he told Stowell, “[T]hese two indi-
viduals would not be missed if they were terminated.” (Tr.
883.) Thus, Gilbert’s description of his behavior on this date
lends considerable support to Moran’s assertion that he ex-
pressed interest in organizing activity, particularly that of
Schantz, and that he threatened unspecified consequences.
Moran’s account of a lunchtime conversation with Gilbert
about union activity is further supported by Wales’ testimony.9
Wales reported that shortly before lunch, Gilbert told him that,
“he had been made privy to information that Dewey [Schantz]
and Mike [Shapley] had been kind of trying to talk to people
out in the shop about getting support to have a vote for a un-
ion.” (Tr. 299.) Beyond this, as will be recounted throughout
this decision, I have determined that Gilbert was a key man-
agement actor in a variety of unlawful acts directed at employ-
ees’ organizing activities and involvement in Board proceed-
ings. The statements reported by Moran are consistent with
Gilbert’s demonstrated attitude and pattern of conduct.
Wales testified that upon learning about organizing activity
from Gilbert, he made immediate reports to his superiors. Spe-
cifically, he testified that he reported this information to Stow-
ell and, separately, to Adams. Stowell told Wales that he
would telephone Landriscina in New York and advise him.
Thereafter, at approximately 2 p.m., Stowell phoned Wales and
asked him to come to his office. Wales testified that upon ar-
riving there, Stowell informed him that he had spoken to Lan-
driscina about the organizing activity, and “that Ben [Lan-
driscina] had told him that he wanted those individuals fired
immediately.” (Tr. 301.) While giving Wales the task of per-
forming the discharges, Stowell counseled Wales to confine his
explanations to the fact that, “we’re an at will employer and
they’re being terminated.” (Tr. 301.) Stowell also observed to
Wales that, “Ben [Landriscina] was really adamant and he said
he will not have a union in the shop at Bliss.” (Tr. 302.)
Stowell and Adams disputed Wales’ testimony that he was
instructed to discharge Shapley and Schantz in retaliation for
their organizing activity on May 28. It is obvious that assess-
ment of Wales’ credibility is central to the analysis of these and
other allegations against the Company. In making this evalua-
tion, I have been mindful that the Company terminated Wales’

9 The issue of the credibility of Wales’ testimony as to many issues
is a central feature of this trial. For reasons I will outline in detail later
in this decision, I have determined that Wales’ accounts, including his
report of Gilbert’s comments on May 28, are credible.
BLISS CLEARING NIAGARA, INC. 299
employment on September 10, 2003. Wales’ status as a dis-
charged former employee of the Company mandates careful
scrutiny of his motives.
Three factors persuade me that Wales was a credible infor-
mant: his demeanor and presentation on the witness stand, the
Company’s failure to demonstrate any unusual circumstances
involving his termination that would color and shape his testi-
mony, and the existence of a significant body of circumstantial
evidence that supports his account of the events under consid-
eration. I will address each of these factors.
In his appearance and testimony at trial, under both direct
and cross-examination, Wales did not display any hostility or
vituperativeness. Nothing about his manner suggested a reck-
less desire to harm his former employer through fabricated
testimony. Instead, his demeanor was consistent with that of an
individual who recognized that he had engaged in wrongful and
unlawful conduct that caused harm to others and who sought to
atone for this behavior through participation in these proceed-
ings. This was illustrated under cross-examination when he
told counsel for the Company that, “I was instructed on the
28th to terminate two employees for an illegal reason and I felt
terrible about that and I still carry that burden with me today.”
(Tr. 409.) Virtually everything about his manner and tone on
the witness stand supported this description of his motivation.
The Company asserts that Wales was motivated to give false
testimony because he desired revenge for his termination. As
counsel for the Company puts it, “he is clearly a disgruntled
former employee with an ax to grind against BCN.” (R. Br. at
p. 23.) It is reasonable to consider such an argument in the case
of an employee who has been fired for cause and who feels
aggrieved about the employer’s poor opinion of his perform-
ance and the resulting impact on his future career prospects. It
is far less reasonable to lend credence to such an argument if
the employee in question was merely a victim of economic
downsizing. While obviously within the realm of possibility, it
strikes me as unlikely that Wales would commit perjury as a
means of punishing his former employer for laying him off due
to a need to reduce operating expenses. Given these realities, it
is necessary to examine the circumstances related to the termi-
nation of Wales’ employment.
Various corporate managers testified to dissatisfaction with
Wales’ performance as manufacturing manager. The primary
reported deficiency in Wales’ performance concerned his as-
serted inability to complete projects in a timely manner.10
While this was alleged to be a habitual problem, the Company
provided documentary proof as to only one example. The evi-
dence clearly shows that as early as the evening of May 28
Stowell ordered Wales to “[d]ocument the file with the reasons
of poor quality and harassment of a fellow employee” that pur-
portedly led to the terminations of Shapley and Schantz. (R.
Exh. 8.) When Wales failed to comply by June 10, Stowell sent
him an e-mail directing that he “get it done today. I do not

10 Other alleged reasons for unhappiness with Wales’ performance
involved assertions that he spent too much time in his office, wrote too
many e-mails, and had poor relations with some of the production staff.
Corporate management failed to provide any contemporaneous docu-
mentation whatsoever regarding these alleged deficiencies.
want to have any issue arise and find we have not done the
documentation.” (R. Exh. 9, p. 1.) Wales again failed to com-
ply. On August 21, Adams wrote to another manager warning
that if Wales failed to complete this task by the end of the day,
“Steve will be written up!” (R. Exh. 10.) It was not until the
beginning of September that Wales actually completed this
assignment.
The Company strongly asserts that Wales’ foot dragging in
preparing this important material was proof of its contention
that Wales was chronically late in meeting deadlines. I reject
this view. Instead, I conclude that his explanation for his
lengthy delay in completing this assignment is both logical and
consistent with his overall position. He testified that he failed
to comply with the order to document the file with evidence
that Shapley and Schantz were fired for poor quality work and
harassment of another employee, “because those two reasons
didn’t have anything to do with why they were fired and so I
felt just real uncomfortable and avoided it and didn’t do it.”
(Tr. 331.) In other words, having participated in the unlawful
termination of the two employees, Wales attempted to avoid
compounding his wrongful behavior by also participating in the
concealment of those same unlawful acts.
The Company presented no documentary evidence in support
of its position that Wales was fired for poor performance as a
manager. The Company’s handbook provides that its personnel
files are designed to “maintain an accurate record of each em-
ployee’s history and current employment status with the com-
pany.” (R. Exh. 7, p. 8.) Despite this, Wales’ personnel file
was not offered into evidence, nor were any evaluations or
disciplinary reports.11 In fact, the evidence shows that the pri-
mary reason for Wales’ termination was corporate downsizing.
For example, in an affidavit prepared in February 2004, Adams
noted dissatisfaction with Wales’ job performance, but also
clearly stated,
I was involved in the decision to eliminate the manufacturing
manager position and to terminate Steve Wales’ employment.
It was primarily due to the need to reduce expenses due to the
company’s decreased sales and order backlog.
(GC Exh. 59.) Similarly, while citing performance as a consid-
eration, Chief Financial Officer Jeffrey Gillesse testified that
Wales was “involved in a group that was laid off or positions
eliminated as of September 10.” (Tr. 927.)
In sum, the evidence shows that, apart from whatever un-
documented concerns the managers felt about Wales’ perform-
ance, he was terminated due to corporate downsizing arising
from a need to reduce expenses in a bad business situation.
Tellingly, he was never replaced and the position of manufac-
turing manager appears to have been permanently eliminated.
As a result, there is little or nothing in the circumstances of
Wales’ termination that would suggest a strong motive to
falsely accuse his former employer of unlawful conduct or to

11 Wales’ immediate supervisor, Jeffrey Gillesse, testified that sev-
eral months before Wales was terminated he warned Wales that he
would be placed on a “performance improvement type plan.” (Tr. 925.)
No such plan was placed into evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD300
impel him to offer perjured testimony in support of such an
accusation.
Finally, this is not a case where a disgruntled former em-
ployee’s uncorroborated testimony forms the heart of a charg-
ing party’s accusation of unfair labor practices. To the con-
trary, Wales’ account is simply one piece of a mosaic of evi-
dence establishing that Shapley and Schantz were unlawfully
discharged. I will examine this additional evidence in detail in
the legal analysis portion of this decision. Suffice it to say at
this point that such evidence includes the highly suspicious
timing of the discharges, the inconsistent treatment of the fired
employees when compared to others similarly situated, the
striking deficiencies in the Company’s investigation of the
employees’ alleged misconduct, and the assertion of a purely
pretextual reason in support of the discharge decision. All of
these circumstances lend powerful support and corroboration to
Wales’ account.
Returning to the events of May 28, it will be recalled that
Stowell ordered Wales to immediately terminate the employ-
ment of Shapley and Schantz. Wales proceeded to contact
Carol Rogers, a human resources official, to direct her to pre-
pare the necessary paperwork for the terminations. He did not
inform her of the reasons for the termination decisions. At
approximately 3:15 p.m., Wales approached Shapley on the
shop floor. He instructed him to turn off his machine. The two
men went to Rogers’ office where Wales informed Shapley that
he was being discharged. When Shapley asked for the reason,
Wales told him that he “didn’t meet the criteria anymore.” (Tr.
29.) Wales added that, “there’s quality issues involved and
everything else.” (Tr. 29–30.) Becoming angry, Shapley re-
sponded, “I’m going to find out the real reason why I was
fired.” (Tr. 303.) He then threatened Wales, but calmed down
before engaging in any inappropriate behavior. He was es-
corted by Gilbert while he gathered his belongings and left the
plant.
Wales then approached Schantz and took him into Rogers’
office. He told him that he was being terminated because he
“did not fit in.” (Tr. 69.) Wales added that he had the feeling
that Schantz was not “happy” at the plant. (Tr. 70.) Schantz
then asked if his termination had anything to do with his prior
suspension for quality issues, noting that he had not had any
quality problems since the suspension. Wales testified that,
I don’t think I said anything because I knew what he was say-
ing was the truth and I just couldn’t really look him in the eye
or make any comment because what he was saying was true.
(Tr. 306.) Schantz reacted calmly to his termination and was
escorted while he gathered his things and left the facility.
As soon as Shapley arrived at his home, he telephoned Ar-
nold. He reported that he had been discharged. He also ad-
vised her that he had obtained names and addresses of employ-
ees as he had been instructed to do. Arnold directed him to
attempt to obtain statements from employees regarding the
events of that day. Arnold also testified that the startling events
of this day caused her to suspend organizing efforts for a period
of time.
At 5:10 p.m. on May 28, Wales e-mailed Stowell, Gillesse,
and Adams, informing them of the discharges and reporting
that Shapley had told Gilbert that, “he intends to find out ex-
actly why he was terminated. He told Dan [Gilbert] that he will
be back.” (GC Exh. 12.) As previously indicated, Stowell
replied by instructing Wales to “[d]ocument the file with the
reasons of poor quality and harassment of a fellow employee.”
(R. Exh. 8.)
After resuming its organizing campaign,12 the Union sched-
uled a meeting for employees of the Company on Sunday, June
29, 2003. Notices were printed, explaining that the purpose of
the meeting was to “discuss and answer questions concerning
the recent organizing efforts at Bliss.” (GC Exh. 5.) Various
employees attended this meeting.
Several witnesses testified regarding the behavior of Super-
visor Gilbert on the Monday morning following the union
meeting. Jason Sayles reported that Gilbert approached him
“pretty close to first thing in the morning.” (Tr. 237.) Sayles
testified that Gilbert asked him “what went on in the meeting
on Sunday, the day before, and I told him I didn’t want to tell
him.” (Tr. 238.) Gilbert asserted that he had heard that Sayles
was “one of the big-wigs of the meeting.” (Tr. 238.) Sayles
denied this. Shortly thereafter, Gilbert approached Moran.
Moran testified that Gilbert asked him if he had attended the
meeting, noting that he had heard that “a lot of employees went
to this meeting.” (Tr. 113.) Moran denied attending.13
Another employee, Douglas Edinger, testified that, by 9
a.m., he had already heard that Gilbert “was talking to some of
the employees about a union meeting that had been on Sunday.
So I decided I’d walk in [to Gilbert’s office] and tell him I was
there.” (Tr. 271.) After being so informed, Gilbert asked Ed-
inger, “who else might be there.” (Tr. 271.) Edinger declined
to provide this information. The two men then engaged in a
general discussion about the “pros and cons of unions.” (Tr.
272.) Edinger testified that Gilbert’s final comment on the
subject was that “Ben [Landriscina] will close the place . . . [i]f
the union came in.” (Tr. 272.)
In his testimony, Gilbert was examined regarding his conver-
sations with employees on the day after the union meeting. His
responses, while providing substantial corroboration to the
testimony of Sayles, Moran, and Edinger, also cast a powerful
negative illumination on the issue of his own credibility as a
witness in these proceedings. On direct exam, Gilbert con-
firmed that, “I asked a few people that Monday after they had
that meeting Saturday or Sunday or whenever it was. I had
asked a few people how their weekend was.”14 (Tr. 808.)
Disingenuously, Gilbert went on to observe that, “I asked a
few employees how their weekend was, which is not out of the
ordinary. It just happened to be the Monday after a union meet-
ing.” (Tr. 808.) He then narrowed this down significantly,

12 The Union’s organizing campaign ultimately met with success.
Following an election, on September 10, 2004, the Board issued a
decision certifying the Union as the collective-bargaining representa-
tive of the unit. Bliss Clearing Niagara, Inc., 7–RC–22659 (2004).
13 Moran testified that he actually did attend the meeting.
14 Gilbert’s claim that he did not know if the meeting was on Satur-
day or Sunday is a blatant evasion. As his subsequent testimony dem-
onstrates, he was well aware that the meeting was held on Sunday.
BLISS CLEARING NIAGARA, INC. 301
reporting that “I asked most of them how their weekend was. I
asked a couple of them how their Sunday was.”15 (Tr. 808).
He noted that a few of the employees responded by making
negative comments about the Union.
Gilbert confirmed that Edinger came into his office and told
him that he had attended the union meeting, claiming that the
reason for his participation was “to be an asshole.” (Tr. 809.)
Gilbert denied that he told Edinger that Landriscina would
close the plant in the event the employees decided to obtain
union representation.
On cross-examination, Gilbert retreated from his contention
that his questions to employees were merely general expres-
sions of interest in the quality of their preceding weekend. The
examination as to this point proceeded as follows:
COUNSEL:you asked people how their weekend was.
Isn’t what you asked them how their Sunday was?
GILBERT: I asked a couple people how their Sunday
was.
COUNSEL:And you were referring to the union meet-
ing, weren’t you?
GILBERT: Yeah, I guess you can interpret that, yeah.
COUNSEL:That’s what you were, correct?
GILBERT: Correct.
COUNSEL: And that’s how they took it?
GILBERT: Yep.
(Tr. 871.) From all of this, it is apparent that Gilbert ultimately
conceded that he intended to interrogate employees regarding
their participation in the union meeting. This clearly corrobo-
rates the testimony of the employees who were on the receiving
end of this conduct. Furthermore, Gilbert’s evasive dance
around this damaging issue served to generally undermine his
credibility, including the reliability of his claim that he did not
threaten Edinger with plant closure in the event of unionization.
I reject this assertion, concluding that Edinger’s description is
entirely consistent with Gilbert’s pattern of conduct in response
to the union meeting held on the preceding day. In addition, I
conclude that Gilbert’s evasive and disingenuous testimony
regarding his interaction with employees after the union meet-
ing demonstrates his consciousness of improper conduct.
On August 18, 2003, the Union filed the initial unfair labor
practice charge in this case, alleging that the terminations of
Shapley and Schantz were motivated by a desire to retaliate for
union organizing activities. (GC Exh. 1(a).) Shortly thereafter,
Wales reported that he began to feel “like the world was kind of
crashing down” on him. (Tr. 347.) While riding back from
lunch a few days later, CFO Gillesse informed Wales that the
unfair labor practice charge had been filed. Wales testified that
he responded by observing that, “I just kind of said yes to they
were fired for trying to start a union.” (Tr. 342.) Gillesse re-
minded Wales that Landriscina wanted written documentation
regarding the discharges sent to him immediately. He in-

15 Although Gilbert testified that he asked only a couple of employ-
ees about Sunday, in a prior affidavit he reported that he asked six
employees, “[h]ow was your Sunday?” He identified each of those
employees by providing their initials. (GC Exh. 51, p. 3.)
structed Wales to finish this task that evening and Wales stayed
late to do so. He e-mailed his draft to Gillesse.
Because upper management was not satisfied with Wales’
report regarding the discharges, Gillesse ordered him to con-
duct an interview with the employee alleged to have been the
victim of harassment by Shapely and Schantz. The interview
was scheduled for September 4, and Gilbert was to be a partici-
pant. While Wales and Gilbert waited for the employee to
arrive, they engaged in conversation. Wales testified that he
told Gilbert that he felt very uncomfortable conducting the
interview so long after the fact, noting that,
this whole thing is—is happening because Mike Shapley and-
Dewey Schantz have filed suit against the NLRB and I said I
can just see this going to trial and I’ll get subpoenaed and it’s
going to really put me in a bad position because I’m going to
tell the truth on the stand, which then is going to hurt the com-
pany and I said I’m almost—I said I’m damned if I do and
damned if I don’t.
(Tr. 367.) Gilbert responded by telling Wales that if he were to
be asked about the Union, he planned to respond by saying,
“what union?” (Tr. 368.) Wales noted that, while making this
statement, Gilbert gave a “mischievous smile.” (Tr. 431.) The
Company terminated Wales’ employment several days later.
On October 31, 2003, the Regional Director filed the original
complaint in this matter, alleging a number of violations, in-
cluding those arising from the terminations of Shapley and
Schantz. (GC Exh. 1(c).) Trial was scheduled for January 13,
2004. At this point in the chain of events, the focus of the nar-
rative must shift to the second major area of controversy in this
case, the Company’s treatment of Employee Moran once it
became aware of his role as a witness in the upcoming Board
proceedings.
Moran testified that Gilbert approached him on January 5.
He described their ensuing conversation, recounting that Gil-
bert told him that,
the Company wanted to know if anyone in the shop had in-
formation about the NLRB proceeding[s] that were happening
on the 13th. And he asked me a couple of questions about the
union . . . . He then asked me if I thought that the Company
fired Mike and Dewey for their participation in the union.
And I told him, yes, I did think so.
(Tr. 115.) Gilbert asked Moran what led him to this conclu-
sion. Moran reminded Gilbert that they had conversed on the
day of the terminations and that Gilbert had mentioned
Schantz’ organizing activity. Whereupon, Gilbert responded
that, “the union participation was not the only reason they got
fired.” (Tr. 116.)
On the following day, counsel for the General Counsel is-
sued a subpoena to Moran requiring his testimony at the up-
coming trial. (GC Exh. 6.) Also on this date, he was asked to
attend an interview with the Company’s attorney.16 Moran
testified that during this interview, he related “the story about
Dan Gilbert approaching me on May 28th, the year before, and

16 At this time, a different law firm represented the Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD302
asking about union participation the day that Mike and Dewey
got fired.” (Tr. 117.)
On January 9, the Regional Director issued an order postpon-
ing the trial from January 13 to April 19, “[i]n order to permit
time to complete the investigation of a newly filed unfair labor
practice charge.” (GC Exh. 1(h).) As a result, Moran reported
to work on January 13. Early in his shift, he was examining a
troublesome machine that was operated by Eric Hutchings.
Gilbert called Moran on the radio and instructed him to stop
speaking to Hutchings, telling him “this behavior will not be
tolerated.” (Tr. 119.) Moran testified that he later went to see
Gilbert and Gilbert told him not to talk to employees in the
aisle, “with all of the stuff going on with the union and the
NLRB. I don’t want you to get mixed up in it.” (Tr. 120.)
John Heatherington provided substantial corroboration of
Moran’s description of Gilbert’s behavior on this date.17 He
testified that he overheard the radio conversation between the
two men. He reported that Gilbert told Moran that he thought
he was going to be on vacation that day. Moran responded that
he had turned in a vacation slip but wanted it to be cancelled.
Gilbert retorted, “What happened? You can’t make up your
mind whether you want to come to work or you want to be on
vacation?” (Tr. 197.) Heatherington was so struck by Gilbert’s
behavior that he approached him later and criticized him for
being “sarcastic” and “inappropriate.” (Tr. 197.) Hutchings
also corroborated Gilbert’s radio call to Moran, testifying that
Gilbert complained about Moran’s excessive standing around
and talking.
Shortly after his chastisement by Gilbert, Moran filed an un-
fair labor practice charge alleging that he had been “harassed”
due to his having been subpoenaed as a witness in the trial in-
volving the discharges of Shapley and Schantz. (GC Exh. 1(j).)
Approximately a week later, Moran was assigned to an impor-
tant project, the rebuilding of two Accuride presses for a cus-
tomer in Canada. On February 13, 2004, Gilbert and Gillesse
issued Moran a corrective action report for “[o]verall low pro-
ductivity issues,” most of which arose from Moran’s perform-
ance on the Accuride project. (GC Exh. 7, p. 2.) Management
contended that Moran had taken excessive time in completing a
wiring task, left his work area prematurely, and failed to follow
Gilbert’s instructions in connecting an electrical box. It was
also alleged that Moran had spent time in an unnecessary re-
view of the functioning of another machine. Based on this list
of infractions, Moran was suspended for 3 days without pay.
Moran returned from his suspension on February 18. On the
following day, he placed a vacation request slip on Gilbert’s
desk, seeking authorization to take a half-day off on February

17 I found Heatherington, a veteran employee at the facility, to be a
highly credible witness. He struck me as a man who was not only
mature in years, but also in judgment. As the maintenance team leader,
his participation in this trial placed him in an awkward position be-
tween management and employees. He noted that he felt too old to get
involved in the organizing issues, but also felt “obligated” to be truthful
regardless of whether his statements would “have a bad reflection upon
me.” (Tr. 213–214.) Following this course, he provided testimony
regarding Gilbert’s misconduct while also commenting unfavorably
about Moran’s work performance. I conclude that Heatherington called
it as he saw it without thoughts of fear or favor.
20. He reported that he placed the slip on Gilbert’s desk be-
cause Gilbert was not at work that day. On February 20, Moran
worked until 11 a.m., and then departed. He testified that he
did not see Gilbert that morning and conceded that, “I made no
attempt to.” (Tr. 139.) Gilbert reported that, although he ob-
served Moran at work that morning, he could not find him in
the afternoon. When he inquired further, Heatherington told
Gilbert that Moran had filled out a vacation slip. Gilbert lo-
cated this slip on his desk, “tucked into the paperwork on the
daily logs.” (Tr. 826.)
The next workday was Monday, February 23. Moran testi-
fied that he decided not to report for work on that day due to an
injured foot. Shortly before the start time of his shift, he tele-
phoned Heatherington and informed him that he needed a vaca-
tion day and asked him “to convey that to the supervisors.”18
(Tr. 203.) Heatherington told Gilbert and a second supervisor,
Archie Howard.
On February 24, management issued Moran a second correc-
tive action report regarding his manner of notifying the em-
ployer of his plans to take vacation time. (GC Exh. 8.) He was
cited for violating the Company’s attendance policy on both
February 20 and 23. The sanction consisted of a written warn-
ing. On March 23, Moran responded by filing unfair labor
practice charges arising from the two corrective action reports
issued to him in February. (GC Exh. 1(l).) Shortly thereafter,
the Regional Director filed an amended consolidated complaint
incorporating these allegations. (GC Exh. 1(n).)
Soon after Moran filed these charges arising from his disci-
pline, Gilbert had a discussion with Heatherington. Heather-
ington testified that Gilbert informed him that Moran had filed
the charges and asserted that, “it’s not a good thing.” He went
on to explain that,
he knows of an electrician, his neighbor, works over in Hol-
land [Michigan]. And we really need to make some changes.
And Larry really needs to be gone.
(Tr. 207.) This conversation took place at about the time that
Heatherington was appointed team leader for the maintenance
employees.
In the following month, the Company began active steps to
address a major electrical project involving the removal of a
defective transformer and the resulting need to rewire a signifi-
cant portion of the plant so that various machines would receive
power from the remaining transformers. Maintenance time logs
show that Moran worked on preliminary aspects of this project
on April 14, 15, 16, 20, and 21, 2004. (GC Exhs. 36, 37, 38,
40, and 41.) Moran testified that during this period he was
involved in discussions with Gillesse, Gilbert, and Heathering-
ton concerning this task. A decision was reached to use the in-
house workforce to perform the needed work. Moran proposed
that a consultation with an outside expert be obtained “to make
sure I was doing the job properly with the proper hook-ups and
the tear down.” (Tr. 579.) This proposal was approved and an
electrician, Dan Van Sweden, was retained. On April 21,

18 Heatherington was appointed as the team leader of the mainte-
nance department in April or May 2004. Therefore, at the time that
Moran called him, he was simply an ordinary employee.
BLISS CLEARING NIAGARA, INC. 303
Moran and Van Sweden met at the plant to review the project.
Thereafter, the logs show that Moran worked on the project on
April 27, 28, 30, and May 3. (GC Exhs. 42, 44, 45, and 46.)
Heatherington testified that, in mid-May, he met with Gilbert
to schedule the core work on the project. It was necessary to
choose a day on which the plant was not operating since the
project required the shutdown of electrical power inside the
facility. The two men selected Saturday, June 5, 2004. This
date was chosen because the workers would not have worked
on the preceding Memorial Day holiday. As a result, they
would not be entitled to time and a-half pay for work performed
in excess of 40 hours per week.19 Heatherington also testified
that he and Gilbert selected five men in addition to themselves
to perform the Saturday work: Bruce Shade, Alex Dicks, Dave
Boomer, Scott Binkowski, and Larry Moran. Of these, Shade
and Moran were maintenance department employees while the
others were production workers. Heatherington, in his role as
maintenance team leader, informed Shade and Moran “to block
off your calendar on June 5th because that’s the day we are
going to attack this transformer project.” (Tr. 633.)
During the last week of May, Gilbert completed one of the
Company’s overtime request forms in preparation for the trans-
former project. On the form, he sought approval of overtime
for a number of employees, listing the number of hours re-
quired and the purpose of the overtime for each employee. On
the copy of this form received in evidence (GC Exh. 49), every
employee selected for the project has these two entries except
Moran. Moran’s entry does not contain any number of hours to
be worked, but does list the reason for his overtime in order “to
connect clean power between C&B bay.” (GC Exh. 49.)
On June 1, Gilbert completed a second overtime request
form for the Saturday work. On this form, Moran’s name is
crossed out. On the section of the form listing the number of
hours to be worked, Gilbert blacked out Moran’s entry.20 De-
spite this, Moran is still listed as being needed in order to “con-
nect clean power between C&B bay.” (GC Exh. 50.)
Moran’s schedule for the week beginning on May 30 was
unusual. Monday, May 31, was the Memorial Day holiday.
Moran took a vacation day on Tuesday. The trial in this case
began on Wednesday, June 2. Trial continued on Thursday and
Friday. At the beginning of the trial, counsel requested an or-
der for sequestration of witnesses. I granted this request and
directed each lawyer to select a person from each side who

19 I recognize that Gilbert disputed Heatherington’s account. He
contended that the decision to do the work on June 5 was reached
“[j]ust a few days prior to that Saturday.” (Tr. 838.) I reject this claim.
Gilbert concedes that he and Heatherington had discussions about the
project long before June 5. I credit the logic of Heatherington’s testi-
mony regarding the cost saving reason that led the two men to select
June 5 for the Saturday work. This factor would have been apparent to
them well in advance of the actual date and it would have been prudent
to provide early notification to the workforce to assure that the work
could go forward on this advantageous day. Finally, throughout these
proceedings, I have concluded that Heatherington was a particularly
credible witness, while much of Gilbert’s testimony struck me as self-
serving and highly partisan.
20 While there are various interlineations on this form, the only cross
out of overtime hours appears in Moran’s listing.
would remain present in the hearing room throughout the trial.
Counsel for the Company selected Adams for this purpose and
she was present throughout the proceedings that week. Counsel
for the General Counsel selected Moran for the same purpose
and he was also present throughout. He sought and obtained
approval to use vacation time for this purpose.21
Heatherington testified that on June 3, Gilbert approached
him stating that, “he wanted to let me know that Larry [Moran]
would not be working on the project that Saturday per Karen
Adams.” (Tr. 634.) Heatherington indicated that until this
conversation he had assumed that Moran would be part of the
crew that handled the Saturday work.
On Saturday, June 5, Moran reported for work at approxi-
mately 6 a.m. Both Moran and Heatherington testified that
shortly after Moran’s arrival, Heatherington informed him that,
“Dan Gilbert told me that you would not be working on this
project today per Karen Adams.” (Tr. 635.) Heatherington
noted that the crew that performed the work was able to com-
plete the project, but that there would have been “plenty of
work” for Moran to perform that day.22 (Tr. 640.)
On June 8, the Union filed a new unfair labor practice charge
arising from the failure to utilize Moran’s services on June 5.
On the following day, Gillesse addressed a memo to Moran,
notifying him that he would receive pay for 2 hours of work on
June 5 pursuant to the Company’s policies. Gillesse cited the
provision of the handbook stating, “[i]f you are asked to report
to work on any day . . . you shall receive a minimum of (2) two
hours pay at your regular rate if no work is available.” (GC
Exh. 32.) Also on that date or the following day, Heatherington
attended a meeting at which Adams was present and the subject
of Moran’s participation on the Saturday project was discussed.
Heatherington testified that Adams asserted that Moran was
removed from the work schedule because management could
not “depend on whether he was going to be there or not because
he had not called in when he was absent Thursday or Friday.”23
(Tr. 642–643.) This was a reference to the days that Moran
spent seated at the counsel table a few feet from Adams herself.
On July 2, the Regional Director issued a complaint alleging
that Moran’s exclusion from the Saturday schedule violated the
Act. Shortly thereafter, counsel for the General Counsel filed a
motion to consolidate cases. At the resumption of proceedings
on July 26, I granted this motion.

21 Moran testified that on both June 3 and 4, he “stopped in the shop
and told [Supervisor] Archie Howard that I had to return to the court-
room.” (Tr. 571.) The Company did not produce testimony from
Howard.
22 In fact, one of the employees assigned to the Saturday work, Dave
Boomer, “didn’t particularly want to come in because he had a wedding
that day that he had to attend.” (Tr. 674–675.) On Saturday, Boomer
left the job early, before the work was completed.
23 Heatherington’s account of this meeting is a prime example of his
objectivity and forthrightness as a witness. While providing testimony
damaging to one of his supervisors, he also candidly observed that
during the meeting in question he was highly critical of Moran’s overall
work performance, noting that he failed to demonstrate “enthusiasm
and zeal” for his work. (Tr. 662.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD304
B. Analysis of the Discharges of Shapley and Schantz
The General Counsel contends that Shapley and Schantz
were unlawfully dischargedbecause of their union organizing
activities. In order to evaluate such a claim, I must employ the
analytical framework established by the Board in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982).24 In American Gardens
Management Co., 338 NLRB 644 (2002), the Board reiterated
the elements of this test, noting that the General Counsel must
show that an alleged discriminatee engaged in protected activ-
ity, that the employer was aware of such participation, that the
discriminatee experienced an adverse employment action, and
that there existed a motivational link between the protected
activity and the adverse action. The Board noted that if these
elements are established by a preponderance of the evidence,
such proof warrants at least an inference that the employee’s
protected conduct was a motivating factor in the adverse em-
ployment action and creates a rebuttable presumption that a
violation of the Act has occurred.
338 NLRB at 645. The burden then shifts to the employer “to
demonstrate that the same action would have taken place even
in the absence of the protected conduct.” Id. [Footnote omit-
ted.]
At the first step in this analysis, the General Counsel pre-
sented the testimony of the two alleged discriminatees.
Shapley reported that after his suspension in April 2003, he
began to discuss the possibility of union organizing with his
coworkers. He contacted one union and was referred to a sec-
ond union. He telephoned Arnold, an official of that union, and
left a message expressing interest in organizing at the Com-
pany. He further testified that, after some delays, he spoke with
Arnold and was instructed to gather preliminary information
from his coworkers. He engaged in this information gathering
activity on May 28, beginning in the parking lot before his shift
began and continuing throughout the day.
Schantz testified that he spoke to Shapley on that morning
and provided him with his contact information. Later on,
Shapley requested that Schantz obtain similar information from
another employee. Schantz reported that he did obtain this
information and provided it to Shapley that afternoon.
The Company contends that this testimony regarding pro-
tected activities is not credible or corroborated by reliable evi-
dence. The record belies this assertion. Three employees con-
firmed that Shapley had approached them in order to discuss
union organizing at the Company. One of those employees was
Heatherington. I have already noted that Heatherington was a
particularly credible witness who carefully avoided tailoring his
testimony to suit any party’s desires. Far from being a union
supporter, Heatherington indicated that he felt he was too old to
become involved in organizing activity and was concerned
about potential adverse consequences to himself. Nevertheless,
he corroborated Shapley’s testimony regarding his organizing
activities prior to the discharges.

24 The Supreme Court approved the Board’s choice of methodology
in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403
(1983).
Other factors apart from the testimony support a conclusion
that Shapley and Schantz engaged in protected activities prior
to their discharges. For example, I find the sequence of events
to be persuasive. Immediately prior to the organizing activities,
the Company “abandoned” a bonus program designed to en-
courage quality work and substituted a disciplinary policy. (R.
Br. at p. 3.) Shapley and Schantz were among those first tar-
geted under the new policy. It is logical that their organizing
activities would follow on the heels of this sequence of events.
Counsel for the Company contends that evidence of organiz-
ing activity is severely undercut by the failure of the General
Counsel to introduce supportive documentation, including the
“slips of paper” containing employees’ contact information
allegedly gathered by Shapley and Schantz on the day of their
terminations. (R. Br. at p. 16.) I disagree. Arnold, the union
official, was cross-examined on this point. She testified that
she was given “a bunch of little pieces of paper” containing
names and addresses. (Tr. 291.) Counsel then asked:
COUNSEL: And did you—did you retain those?
ARNOLD: Yes.
COUNSEL: Do you have those with you today?
ARNOLD: Yes.
COUNSEL: And approximately how many of those did
you have?
ARNOLD: I didn’t count all the pieces of paper before I
came in, but maybe about 15.
(Tr. 291.) Arnold was not asked to produce these items, and I
conclude from her unchallenged testimony that they were in her
possession.
Beyond the slips of paper that Arnold brought to the hearing,
there is an additional item of documentary evidence that sup-
ports Shapley’s testimony regarding his organizing activities.
On September 4, Wales prepared a memorandum documenting
his interview with Randy Rice, an employee who was alleged
to have been the victim of harassment by Shapley and Schantz
in the months preceding their discharges. In that memo, he
notes that Rice reported that Shapley had told him “that without
a union, you are getting nowhere.” (GC Exh. 25.) While the
Company vigorously assaults the credibility of Wales’ trial
testimony, it does so on the basis that he is disgruntled due to
his discharge from employment. Therefore, it is particularly
significant that Wales wrote his account of Rice’s description
of Shapley’s comments prior to his termination from employ-
ment. I conclude that Wales’ account lends considerable sup-
port to Shapley’s testimony.25
I find that Shapley and Schantz had engaged in protected un-
ion organizing activity prior to their discharges. I also conclude
that the Company was aware of their protected activities. In
reaching this conclusion, my analysis has begun with the large
quantum of direct evidence of such knowledge. First and fore-
most, I have already noted that I credit Wales’ account of the

25 I recognize that Rice testified that Shapley “never did talk to me
about the union.” (Tr. 720.) I do not credit this. It is simply one of
many examples of Rice’s tendency to tailor his testimony to support the
Company’s needs and to prevent the potential reinstatement of former
coworkers that he dislikes.
BLISS CLEARING NIAGARA, INC. 305
events at issue. He testified that shortly after lunch on May 28,
Gilbert reported to him that Shapley and Schantz “had been
kind of trying to talk to people out in the shop about getting
support to have a vote for a union.” (Tr. 299.) Wales then
conveyed this information up his own chain of command to
Stowell and Adams. He was later advised that it had reached
the highest level, Landriscina.
Moran’s testimony strongly supports Wales on this point.
Moran reported that on May 28, Gilbert approached him, as-
serting that, “I’ve heard some people are trying to form a union
and they’re asking for names and addresses.” (Tr. 111.) He
made specific mention of Schantz and ominously observed that,
“there’s going to be some changes around here today.” (Tr.
111.)
Counsel for the Company attacks the reliability of this testi-
mony, noting that Moran has “a financial interest in the out-
come of this case.” (R. Br. at p. 18.) While this is true, it must
be kept in proper perspective. Moran’s pecuniary stake in the
outcome is actually quite limited. If he prevailed in all of his
claims, he would be entitled to back pay for his 3-day suspen-
sion and for the uncompensated portion of his wrongfully
eliminated Saturday work shift on June 5. I do not find that the
extent of his financial interest is sufficient to substantially im-
pact his credibility. Instead, I am impressed by the fact that
Moran gave a similar account at a time when he had absolutely
no financial stake in this proceeding. It will be recalled that
prior counsel for the Company interviewed Moran on January
6, 2004. Moran testified that during this interview, he informed
counsel that Gilbert had approached him on May 28, “asking
about union participation the day that Mike and Dewey got
fired.”26 (Tr. 117.) When Moran gave this account, his only
role in this case was as a potential witness who had been sub-
poenaed by the counsel for the General Counsel.
Finally, I note that while Gilbert denied knowledge of union
activities by Shapley and Schantz on May 28, his testimony
regarding his own activities on that day is highly suspicious.
Although he was not their supervisor, he testified that he noted
that the two men were away from their work areas and carried
this information all the way to the chief executive officer. Pe-
culiarly, while making this report about employees that he did
not directly supervise, he opined, “these two individuals would
not be missed if they were terminated.” (Tr. 883.) Thus, his
own version is eerily similar to the General Counsel’s theory as
to what happened on May 28—that Gilbert focused on Shapley
and Schantz and reported their union activity to higher man-
agement resulting in their immediate discharges.
Beyond this impressive quantum of direct evidence of em-
ployer knowledge of union activities, I have also considered the
circumstantial evidence involved in this case. Very recently,
the Board has emphasized that,
the knowledge element of the General Counsel’s initial bur-
den may be satisfied by evidence of the surrounding circum-
stances, including contemporaneous 8(a)(1) violations, the
timing of the alleged discriminatory action, and the pretextual

26 Moran testified that in addition to the Company’s attorney, Ad-
ams, Gillesse, and Rogers attended this meeting. Nobody contradicted
Moran’s testimony regarding what transpired at the meeting.
nature of the reasons advanced by the respondent for the ac-
tion taken. [Citation omitted.]
Atlantic Veal & Lamb, Inc., 342 NLRB 418, 419 (2004). This
type of circumstantial evidence exists in this case and lends
support to a finding of employer knowledge. Detailed discus-
sion of this evidence is more appropriately made later in the
Wright Line analysis.
At the next step of the evaluation process, it is obvious that
Shapley and Schantz were subjected to an adverse employment
action. Indeed, they suffered the ultimate workplace sanction.
Having found that the two men engaged in union organizing
activities, that their employer was well aware of their participa-
tion in those protected activities, and that they were subjected
to adverse action, I must next determine whether there is a mo-
tivational link between the employer’s knowledge of protected
activity and the imposition of the employment sanction. The
Board requires that the totality of the evidence be considered.
In other words, a conclusion must be derived from the record as
a whole. See Sears, Roebuck Co., 337 NLRB 443 (2002), cit-
ing Fluor Daniel, Inc., 304 NLRB 970 (1991), enfd. 976 F.2d
744 (11th Cir. 1992). Both direct and circumstantial evidence
should be examined. Probative circumstantial evidence in-
cludes,
such factors as inconsistencies between the proffered reason
for the discipline and other actions of the employer, disparate
treatment of certain employees compared to other employees
with similar work records or offenses, deviation from past
practice, and proximity in time of the discipline to the union
activity.
Embassy Vacation Resorts, 340 NLRB 655, 657 (2003).
Often, the focus of analysis is on the circumstantial evidence.27
By contrast, in this case the assessment properly begins with
the persuasive direct evidence of animus toward Shapley and
Schantz’ involvement in protected activities. In particular, the
manager of manufacturing operations at the time under consid-
eration made explicit that which is often only inferred regarding
unlawful motivation. Wales credibly testified that he received
Gilbert’s information about the organizing activity and reported
it to his superiors. Later that day, he was summoned to the
CEO’s office and informed that the Company’s top official,
Landriscina, “wanted those individuals fired immediately.”
(Tr. 301.) In further explanation, Wales was told that Lan-
driscina “was really adamant and he said he will not have a
union in the shop at Bliss.”28 (Tr. 302.) Having received these
marching orders, Wales immediately made the necessary ar-
rangements with the human resources representative and pro-
ceeded to meet individually with Shapley and Schantz and in-
form them that they were discharged. In this manner Gilbert’s

27 Indeed, a finding of unlawful motivation may be based exclusively
on circumstantial evidence. See, for example, Tubular Corp. of Amer-
ica, 337 NLRB 99 (2001).
28 In this regard, Wales’ testimony regarding Landriscina’s attitude
was reinforced by Edinger’s report that Gilbert told him that “Ben
[Landriscina] will close the place . . . [i]f the union came in.” (Tr. 272.)
The Company did not elicit testimony from Landriscina.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD306
prediction, made in connection with his awareness of organiz-
ing activity, that “there’s going to be some changes around here
today” was dramatically fulfilled. (Tr. 111.)
As I have previously noted, I have carefully considered the
assault on Wales’ credibility mounted by the Company. In
addition to finding Wales’ demeanor and presentation to be
worthy of credit, I have rejected the argument that the particular
circumstances of his termination involving the permanent aboli-
tion of his position would lead him to seek revenge through
outrageous conduct involving the manufacture of false evi-
dence. Lastly, I am impressed and persuaded by the circum-
stantial evidence that sheds corroborative light on his account.
The first and perhaps least disputable item of circumstantial
evidence is the timing of the adverse employment action. The
Board has recently observed that,
[i]t is well settled that the timing of an employer’s action in
relation to known union activity can supply reliable and com-
petent evidence of unlawful motivation. [Citations omitted.]
Davey Roofing, Inc., 341 NLRB 222, 223 (2004). In Davey,
the adverse employment actions were taken on the next busi-
ness day following a union meeting attended by the affected
employees and on the same day that the company received a
union petition signed by those employees.
In this case, Shapley was discharged on the same day that he
escalated his organizing activities, moving from mere discus-
sions with coworkers to active collection of information for
transmission to the Union’s organizing official. Similarly,
Schantz’ termination was effected on the date that he first en-
gaged in protected activity, providing information for use by
the Union and soliciting another employee to do likewise. Fur-
thermore, both men were fired on the day that management first
learned of this concrete organizing activity. In a venerable and
often-cited case, the Second Circuit upheld the Board’s deter-
mination of unlawful motivation where an organizing campaign
was initiated in the first week of June, the union requested vol-
untary recognition on June 9, and the employer laid off numer-
ous employees on June 9 and 10. In endorsing the Board’s
analytical approach, the court took note of the “stunningly ob-
vious timing.” NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir.
1970). The evidence in this case mandates the same observa-
tion and conclusion. As the Board has phrased it, “where ad-
verse action occurs shortly after an employee has engaged in
protected activity, an inference of unlawful motive is raised.”
McClendon Electrical Services, 340 NLRB 613 fn. 6 (2003).
In addition to this striking evidence of temporal proximity,
the manner of scheduling of the terminations is also circum-
stantial evidence supporting the General Counsel’s arguments.
I note that the two men were fired on the second workday fol-
lowing the Memorial Day holiday. Had they been terminated a
few days earlier, the Company would have saved the expense
associated with holiday compensation.29 Adams testified that

29 The evidence shows that management was certainly interested in
this sort of cost saving analysis. For example, the Saturday work shift
required for the transformer project was scheduled for June 5, 2004,
because overtime pay could be avoided since the employees would not
be working in excess of 40 hours that week due to the preceding Me-
morial Day holiday.
she thought that she and Stowell had conferred on May 22 and
decided to terminate Shapley and Schantz on May 28.30 No
explanation was offered as to why supposedly carefully pre-
planned terminations were implemented after a holiday week-
end and during the middle of the following workweek.
Beyond the unusual choice of date for the terminations, it is
also noteworthy that the processing of the terminations was
carried out precipitously. Although the decision to terminate
the employees was allegedly made well in advance of May 28,
the evidence shows that the human resources manager who
would prepare the necessary documents, Carol Rogers, was
only informed at the last minute. Wales testified that on May
28, Stowell instructed him to fire the two men immediately. He
then met with Rogers and,
told her the decision had been made to terminate Mike and
Dewey. And she was going to, I guess, get whatever paper-
work she needed to get ready.
(Tr. 302.) Her surprise was conveyed to Schantz. After Wales
terminated Schantz, he departed, leaving Rogers alone in her
office with Schantz to complete the paperwork. He testified
that she interrupted this chore and asked him why he had been
terminated. She went so far as to speculate about the reason,
asking Schantz, “[I]f you think it has something to do with the
3-day scrap suspension.”31 (Tr. 70.) The very short notice
provided to Rogers and her evident surprise at the turn of
events provides support to the General Counsel’s contention
that the terminations were not carefully preplanned, but rather
were ordered as a hasty response to the organizing activity on
May 28.
The evidence regarding the timing and manner of Shapley
and Schantz’ terminations supports Wales’ testimony that the
two men “were terminated because they were trying to start a
union in the shop.”32 (Tr. 401.) As an appellate court once put
it in a similar context,

30 Stowell testified that, although he couldn’t “give you a date,” his
recollection was that the termination decisions were made “the week
before the holiday.” (Tr. 463.) Gillesse’s testimony conflicts with this
chronology provided by Adams and Stowell. He asserted that Stowell
informed him that Shapley and Schantz were going to be terminated “a
couple of weeks” prior to May 28. (Tr. 950.) This would suggest that
the decision was purportedly made in mid-May.
31 I credit the testimony of Wales and Schantz establishing that
Rogers was given only last minute notice of the terminations and was
taken by surprise. The testimony cited was uncontroverted. The Com-
pany did not call Rogers as a witness. I infer that the failure to elicit
her testimony was due to the fact that she would have been unable to
confirm other managers’ assertions that the termination decision had
been made well in advance of May 28. See Daikichi Sushi, 335 NLRB
622 (2001) (adverse inference appropriate where employer failed to
produce testimony of the only manager present at a crucial meeting).
32 Counsel for the Company notes that the first reference to organiz-
ing activity in Wales’ weekly update reports is not made until late in
the month of June. From this, he argues that Wales’ own documents
undercut his testimony. I do not agree. Wales testified that he knew it
was unlawful to fire employees for union activities. He would hardly
have been expected to include information in his weekly reports that
would tend to show that he had engaged in such illegal conduct.
BLISS CLEARING NIAGARA, INC. 307
[t]he abruptness of the discharges and their timing are “per-
suasive evidence” that the company had moved swiftly to
eradicate the . . . prime movers of the union drive.
Abbey’s Transportation Services v. NLRB, 837 F.2d 575, 580
(2d Cir. 1988).
I conclude that the General Counsel has met his burden of
demonstrating that Shapley and Schantz engaged in protected
union organizing activities and that the Company was aware of
their participation in those activities. I further find that the
decision to terminate the two men was substantially motivated
by animus against them arising from their participation in the
protected organizing activity. As a result, the General Counsel
has met his initial burden and the burden now shifts to the em-
ployer to demonstrate that the same adverse action would have
been imposed regardless of the employees’ participation in the
union organizing activities.
Before examining the Company’s defenses, it is appropriate
to consider the precise nature of the Company’s burden. The
Board has carefully explained that,
in rebutting the General Counsel’s prima facie case—that the
protected conduct was a “motivating factor” in the employer’s
decision—an employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place
even in the absence of the protected conduct.
Hyatt Regency Memphis, 296 NLRB 259, 260 (1989), affd. 939
F.2d 361 (6th Cir. 1991). This point was underscored very
recently in Yellow Enterprise Systems, 342 NLRB 804, 805
(2004), where the Board observed that,
[o]nce a discharge has been shown to be unlawfully moti-
vated, an employer must establish not merely that it could
have discharged the employee for legitimate reasons, but also
that it actually would have done so, even in the absence of the
employee’s protected activity. [Emphasis in the original.]
Keeping in mind this important distinction, I will now examine
the employer’s asserted justifications for the discharges of
Shapley and Schantz.
The Company advances two such justifications as the actual
motivating factors leading to the termination of these employ-
ees. First, it alleges that the men were fired for poor work per-
formance. For reasons that I am about to discuss, I conclude
that this is simply a pretext advanced to disguise an unlawful
act. It is a mere wisp of fog that vanishes when exposed to the
sunlight of objective scrutiny.
As its second reason, the Company contends that it dis-
charged these men because it refused to tolerate their harass-
ment of a fellow employee, Randy Rice. This defense presents
a far more interesting question. As counsel for the Company
correctly argues, there is a considerable trail of documentary
evidence demonstrating that management was giving active
consideration to the discharge of Shapley and Schantz before
the fateful day on which they began organizing support for the
Union. After close consideration of what this paper trail says
and comparison of its contents with the other evidence of re-
cord, I find that it fails to carry the Company’s burden of show-
ing that it would have fired the men on May 28 regardless of
their union activities on that date.
As to the issue of poor work performance, there is no ques-
tion that the Company displayed legitimate concern about the
problem, a concern untainted by any unlawful animus. Months
before the initiation of union organizing, management analyzed
employee work performance and concluded that Shapley and
Schantz, along with Jensen and Hayes, were deficient. Detailed
warning reports accompanied by extensive supporting docu-
mentation were prepared and the manufacturing manager con-
ferred with each employee regarding performance improve-
ment. The employees were offered both positive encourage-
ment and imposition of a 3-day suspension sanction in a multi-
faceted effort to obtain improved work performance.
Just as there is no doubt that management’s disciplinary ef-
forts designed to obtain improvement of the employees’ work
performance were sincere, it is equally clear that they were
effective. The evidence showed that this disciplinary process
immediately impressed the affected employees. For example,
Wales noted on Shapley’s warning notice that upon receiving
his discipline, Shapley was “in awe.”33 (GC Exh. 2.) More
importantly, the Company’s quality control records convinc-
ingly prove that both men took the warnings to heart. In the
weeks after their suspensions, their work performance under-
went dramatic improvement.
Turning first to Shapley, the documentation attached to his
warning notice showed that during the 7-month period under
scrutiny he had made operator errors costing the Company an
average of $668 per month. In the 2-month period after his
suspension and before his discharge, Shapley made only one
operator error costing $110, an average of $55 per month. In
other words, imposition of the suspension as part of a plan de-
signed to improve performance resulted in a greater than 90 per
cent improvement in Shapley’s work quality using the form of
measurement chosen by the Company.
If Shapley’s performance improvement was impressive, that
of Schantz was absolutely dramatic. At the time of his suspen-
sion, Schantz had made operator errors costing the Company an
average of $606 per month. From the initiation of his perform-
ance improvement plan through the date of his discharge,
Schantz did not make a single operator error. As Stowell con-
ceded in his testimony, at the time that the Company discharged
the two men, their error rate “was certainly far better than their
history showed in the past.” (Tr. 479.) There was nothing in
the recent work history of Shapley and Schantz that would have
served to justify their discharge on the basis of deficient per-
formance.
In analyzing this question, it is also instructive to compare
the results of the performance improvement process for
Shapley and Schantz with those obtained regarding the other
two employees who were the focus of concern, Jensen and
Hayes. In the period between the suspensions and the dis-
charges of Shapley and Schantz, Jensen had an operator error

33 I speculate that Wales selected this descriptive term because the
disciplinary meeting was taking place against the background of the
war in Iraq, a campaign that was widely described as having been de-
signed to inflict “shock and awe” on the enemy’s forces.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD308
that cost the Company $251. This was more than double the
cost of Shapley’s similar lone error. In addition, it is notewor-
thy that Jensen, unlike either Shapley or Schantz, had a prior
disciplinary report in May 2001 for “Poor Workmanship—
Quality.” (GC Exh. 14.) Despite this, Jensen was not dis-
charged or otherwise disciplined.34
The remaining subject of the Company’s performance im-
provement program was Hayes. During the period between the
suspensions and the discharges at issue, Hayes had an operator
error costing $151. Once again, this was larger than Shapley’s
similar error. Despite this, Hayes remains employed by the
Company. During cross-examination of former CEO Stowell,
counsel for the General Counsel crystallized the statistical find-
ings regarding the four employees who were being watched for
quality issues,
COUNSEL: Of these four people, Schantz, Jensen,
Shapley, and Hayes, looking at the period of the two
months of April 2003 and May 2003, the two employees
that had the errors that cost the company the most money
were Hayes and Jensen?
STOWELL: That is what the report shows. [Tr. 493.]
This evidence regarding the course of the Company’s per-
formance improvement effort may be viewed in two ways. If
the Company’s intention had been to impose the preliminary
sanction and then follow up with termination of those employ-
ees who continued to have significant operator errors, logic
would have required the discharge of Hayes and Jensen. If the
standard had been a total absence of errors, then Shapley would
have been swept into the net as well. However, under no logi-
cal frame of reference would it have been reasonable to dis-
charge Schantz, an employee who responded to the perform-
ance improvement program by totally eliminating his operator
errors.
In fact, it is more appropriate to examine the evidence from
the second viewpoint, that the performance improvement plan
was not designed to lead to discharges of deficient employees,
but was instead intended to alter their performance so that their
services would be retained in improved form. The evidence
shows that this was management’s practice and policy. Adams
summarized it as follows,
We don’t necessarily consider everything grounds for termi-
nation. . . if somebody’s performance is horrific, they would
get terminated. If their performance is, okay, we can work
with the person, it’s up to our managers to work with people,
it’s up to our managers to deal with some of these issues and
manage the people, we allow that to happen.
We don’t terminate everybody unless we think it’s worthy of
termination.
(Tr. 1062.) This statement of philosophy is entirely consistent
with the management approach taken at the time the four men
were suspended. The intention was to improve their perform-
ance. The plan worked remarkably well. Given this outcome,

34 It is true that Jensen was laid off in September 2003 due to declin-
ing sales. Lest it be thought that performance issues were responsible
for his layoff, it is noted that Jensen was subsequently recalled.
it defies common sense, logic, and elementary fairness to be-
lieve that management would select the two employees who
made the best response to the disciplinary action and terminate
them from employment while retaining the services of the two
poorer performers. The message such action would send to the
remainder of the workforce would be completely counterpro-
ductive. I refuse to conclude that management would engage in
such perverse behavior.35
Something else must account for the terminations of Shapley
and Schantz. This apparent mystery is solved by reference to
the testimony of former manufacturing manager Wales, the
very supervisory employee who conducted the original per-
formance improvement process under discussion.36 By assert-
ing this highly dubious rationale for the discharges, the Com-
pany has cast legitimate doubt upon its actions. As was ob-
served in Amber Foods, Inc., 338 NLRB 712–715 (2002),
The Board has long held that “when the asserted reasons for a
[disciplinary action] fail to withstand examination, the Board
may infer that there is another reason—an unlawful one
which the employer seeks to conceal—for the [disciplinary
action].” Emergency One, Inc. 306 NLRB 800, 807–808
(1992), citing Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966).
In contending that it discharged two employees for poor per-
formance after they had successfully responded to a carefully
devised performance improvement plan, the Company has
raised this negative inference against itself.
It is now necessary to consider in detail the Company’s final
defense, that it terminated Shapley and Schantz because they
engaged in harassment of a fellow employee, Rice. As previ-
ously noted, there is documentary evidence that supports a
conclusion that the termination of these employees was indeed
under active consideration for this reason. A complete under-
standing of the situation requires a digression in order to set
forth the history of the interactions among those three employ-
ees and the Company’s responses to it.
All three of the men agree that their original relationship was
a good one. Unfortunately, this changed in October 2002. At
that time, the Company discharged an employee, Kevin
Schantz, who was Duane Schantz’ nephew. Contemporaneous
documentation shows that Kevin Schantz was discharged for
three reasons: the need to reduce the workforce due to eco-

35 As further evidence supporting my refusal to give any credence to
this possibility, it is noteworthy that Stowell testified that he did not
recall “talking about [Shapley and Schantz’] performance over that
period of time, April and May” prior to discharging them. (Tr. 509.)
He had “no recollection of discussing or reviewing” their performance
between their 3-day suspensions and the discharges. (Tr. 513.) Under
cross-examination, Adams testified that absent something additional,
the performance issue would “probably” not have been enough to jus-
tify the discharge of the men. (Tr. 1075.)
36 My conclusion that the assertion of poor quality work performance
as a reason for the discharges was pure pretext also serves as probative
circumstantial evidence supporting my findings that Wales was a credi-
ble witness and that the actual motivation for the discharges was unlaw-
ful animus. See Key Food, 336 NLRB 111, 114 (2001) (“well settled”
that when an employer’s stated motive is false, it is proper to infer that
the true motive is an unlawful one that the employer seeks to conceal).
BLISS CLEARING NIAGARA, INC. 309
nomic factors, his threatening conduct toward his supervisor
(Dan Gilbert), and his harassment of Rice. In this connection,
Rice had informed Gilbert that Kevin Schantz had verbally
“ripped me up and down,” reducing him to tears. (Tr. 697.)
Everyone agreed that after Kevin Schantz’ discharge, the re-
lationship among the three men soured. Duane Schantz ceased
talking to Rice on a social basis. When Rice asked him about
the change in attitude, Schantz responded to the effect that he
did not wish to talk to Rice because he was concerned that what
he said could cost him his job.37 Similarly, Shapley stopped
speaking with Rice except to counsel him to “stay out of Dan
Gilbert’s office.” (Tr. 703.) Other employees also avoided
social interaction with Rice. Rice estimated that 10 to 15 em-
ployees followed this course. One of those employees, Eric
Hutchings, testified that,
people [were] afraid to speak to Randy Rice due to possible
disciplinary action, because Randy has a tendency to—well,
he causes problems for people and he’s allowed to by Dan
Gilbert.
(Tr. 265–266.)
The next significant event allegedly occurred on May 7,
2003.38 On that day, Rice contends that he was approached by
Shapley while in the men’s room. The two men were alone
inside the room. He testified that Shapley confronted him,
asserting that,
you’re a suck ass. You can’t be trusted. You’ve got your
head so far up this company’s ass, no one trusts you.
(Tr. 706.) In a rather peculiar and worrisome coincidence,
Rice’s testimony regarding Shapley’s choice of phraseology is
virtually identical to his report as to Kevin Schantz’ accusations
against him over 6 months earlier.39 This strikes me as unlikely
and raises concern regarding the possibility of manufactured
testimony.
In support of his account of the incident with Shapley, Rice
contended that Moran had approached the restroom entrance
during the confrontation and, after observing the nature of the
interaction, abruptly departed without entering the room. In
sharp contrast, Shapley denies having any such interaction with
Rice and Moran testified that he did not observe the two men
together in the restroom on that day.
It is undisputed that Rice immediately reported his version of
these events to Gilbert.

37 In her testimony, Adams conceded that, standing alone, this re-
mark was not “an incident that would have been worthy of termina-
tion.” (Tr. 1069.)
38 Gilbert testified that in April 2003 he warned Schantz against
falsely accusing Rice of work errors. Gilbert testified that Schantz
admitted that he had done this “to stir up trouble between the . . . ma-
chinists and Randy Rice.” (Tr. 789.) I find this account of Schantz’
purported full confession to spreading slanderous statements against
Rice to be highly unlikely. It fits a pattern of incredible statements
peppered throughout Gilbert’s testimony regarding Shapley and
Schantz.
39 Rice claimed that, in October 2002, Kevin Schantz called him a
“suck ass” and told him that “you’ve got your head so far up the com-
pany’s ass you can’t breathe.” (Tr. 696.)
In another oddity regarding Rice, Gilbert testified that when
Rice reported this event he claimed that “people” had harassed
him in the restroom. (Tr. 792.) Gilbert asked for the names of
these individuals. According to Gilbert, at that point Rice
changed his account, indicating that there was just one person
involved. He refused to provide the name of this employee.
Gilbert reported Rice’s remarks to higher management. Adams
testified that she learned that, “Randy had been corner[ed] in
the bathroom, that he had been harassed and threatened by co-
workers.” (Tr. 1029.) She conveyed this to Landriscina who
ordered an investigation and the termination of those involved.
Wales was placed in charge of this investigation.
At this point in the chronicle of events, Rice and Gilbert
claim that Wales participated in a meeting with them to discuss
the issue of harassment. Wales denies that this took place,
contending that his only interview of Rice about the issue hap-
pened much later. Wales testified that this meeting occurred on
September 4, and was occasioned by the need to belatedly
document the harassment issue as a justification for the dis-
charges. I find that the documentary evidence convincingly
supports Wales.
In a lengthy e-mail written in May, Wales provided Stowell
with a detailed account of his investigation thus far. The pri-
mary focus of the investigation had been to obtain from Rice
the names of the individuals alleged to have harassed him.
Interestingly, the email reflects that Rice was continuing to
contend that there were multiple harassers. As Wales described
it,
Randy Rice said he was confronted in the restroom by 3–4 in-
dividuals that called him foul names and basically harassed
him.
(GC Exh. 19, p. 1.) Wales went on to note that Gilbert “has
been working since last week to get the names from Randy.
Dan put together a list of individuals that he thought might be
involved and asked Randy to confirm the names, which he
did.” (GC Exh. 19, p. 1.) Wales’ written account was sup-
ported by testimony from Stowell, who reported that,
sometime in that period [after the May 7 incident] Steve
[Wales] reported that Dan [Gilbert] had talked to Rice and . . .
that Randy had indicated through some agreement of some
sort who was involved.
(Tr. 461.) Beyond this, Wales’ version is even corroborated by
Gilbert himself, in an affidavit that he provided on October 6,
2003. In that account, he states that “after I wrote down several
names [Rice] indicated whom the individuals were by nodding
(for yes) and shaking his head (for no),” (GC Exh. 51, p 2.)
According to the same affidavit, It was only after eliciting this
information from Rice that Gilbert reported the incident to
Stowell and Wales. From all this, it is clear that Wales was not
a participant in the May interview of Rice by Gilbert.
In this e-mail to Stowell, Wales reported that Rice claimed
that four individuals harassed him in the bathroom, Shapley,
Shane Howard, Dave Main, and Greg Cole. In addition, Rice
asserted that Schantz was not in the bathroom but had “made
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD310
some calls to individuals to instigate the harassment.”40 (GC
Exh. 19, p. 1.) The letter does not indicate how Rice claimed to
have knowledge about Schantz’ supposed phone calls.
Interestingly, Wales used this e-mail to ponder the issues
presented. Despite noting that he had a “gut” feeling that Gil-
bert and Rice were sincere, he also raised the following ques-
tions,
is it possible that some things might have, or could have, oc-
curred prior to [the formation of the Company] that would
cause Randy and Dan to fabricate something like this so the
company can substantiate getting rid of them? Just a question
that I want you to think about . . . .
Do we believe what Randy is claiming and take action, or
should I gather more evidence or facts?
(GC Exh. 19, p. 1–2.)
In this correspondence, Wales also grappled with the effects
of any management action on the Company’s production proc-
ess and its commitments to customers. He warned that if they
decided to fire these employees, “we need a transition plan
[due] to the impact that getting rid of them all at once would
cause.” (GC Exh. 19, p. 2.) He suggested that the process of
obtaining requisitions for new hires be undertaken, noting that
if terminations were not made the requisitions would not have
to be used. He asked Stowell a final question, “Do you want
me to get with Carol [Rogers] to have her initiate these [hiring
requisitions]?” (GC Exh. 19, p. 2.)
At the end of the week during which Rice raised his allega-
tions of harassment, Wales prepared his customary weekly
update report. He noted that he had, “[i]nvestigated harassment
of a machinist in the factory. 3-4 employees involved. Still
gathering information.” (R. Exh. 4, p. 2.) In apparent follow-
up of his e-mail to Stowell, Wales also noted that in the follow-
ing week he would
[s]ubmit employment requisitions to replace 3–4 employees
that were involved in the harassment of another machinist.
Positions only to be filled with the understanding that termi-
nations will occur in the future. Need to discuss timing for
training, etc.
(R. Exh. 4, p. 2.)
At the end of the next week, Wales returned to this issue in
his weekly update report. He reported that his investigation
continued and that they had learned the names of those believed
to be at fault. Under the heading of “Next Weeks Actions,” he
stated that he would select persons to be interviewed as re-
placements for terminated employees, but cautioned that,
“[p]ositions only to be filled with the understanding that termi-
nations will occur in the future. Need to discuss timing for
training, etc.” (R. Exh. 5, p. 2.) In addition, he raised a new
aspect of this issue, indicating that he planned to assure that the
supervisor of the machinists, Archie Howard, would “take re-
sponsibility for terminating the 5 employees responsible for the
harassment.” (R. Exh. 5, p. 2.)

40 It is certain that Schantz was not in the restroom since he was not
at work on that day.
In the next weekly report prepared at the conclusion of the
week beginning on May 19, Wales again noted that “5 employ-
ees [were] involved” in the harassment and that a “[p]lan for
finding replacements will be proceeding next week including
interviews and selection.” (R. Exh. 6, p. 1.) In the section of
the report regarding actions for the following week, he again
noted that the positions would only be filled in the event “that
terminations will occur in the immediate future.” (R. 6, p. 2.)
He also returned to two other themes articulated in his prior
reports, that the timing of new employee training would need to
be discussed, and that Howard would have to take responsibil-
ity for the firing of the employees and the training of their re-
placements.
Just 1 or 2 workdays after Wales’ weekly report described
above, Shapley and Schantz were discharged. Within hours of
the discharges, Stowell e-mailed Wales, directing him to
“[d]ocument the file with the reasons of poor quality and har-
assment of a fellow employee.” (GC Exh. 12.) As previously
discussed, Wales dragged his feet, failing to complete this as-
signment throughout the summer months. In early September,
he was specifically ordered to interview Rice about the harass-
ment issue. A list of written questions was drafted. Gillesse
approved the list and Wales and Gilbert met with Rice on Sep-
tember 4 to obtain the answers to the questions.
Although the documentary evidence clearly shows that Rice
was interviewed by Gilbert and Wales on September 4, both
Gilbert and Rice testified in an incorrect and evasive manner
regarding this event. Under examination by counsel for the
General Counsel, Rice unhesitatingly confirmed the meeting.
Shortly thereafter, when examined by counsel for the Com-
pany, he just as unhesitatingly denied the existence of the same
meeting. On the other hand, Gilbert simply took the position
that he could not recall whether there had been such a meeting
on September 4.
I readily conclude that the meeting occurred and was fully
documented by Wales in a written report wherein each of the
questions and Rice’s answers were recorded in detail. One of
the first questions concerned the number of people who con-
fronted Rice in the bathroom on May 7. In a further indication
of Rice’s inability to recount a consistent version of those
events, Rice responded that he did not recall how many persons
were involved. Rice was then asked whether any among a list
of several employees had ever threatened him. He reported that
Shane Howard, Mike Shapley, and Greg Cole had made such
threats to him. He further reported that Dave Main and Duane
Schantz had not threatened him.
What is one to make of all this? On examination of the evi-
dence with particular emphasis on the documents, several
things become clear. First, there is no doubt that the Company
received an allegation from Rice that he had been harassed. It
was necessary and proper for management to respond to this
situation. An appropriate investigation was initiated. The evi-
dence acquired was very thin. Rice could not maintain a con-
sistent account of how many people harassed him. At various
times he alleged that his harassers included Shapley, Schantz,
Howard, Cole, and Main. Despite the fact that corroboration
was minimal to nonexistent, the Company did not interview
BLISS CLEARING NIAGARA, INC. 311
any of the alleged harassers.41 Although it was recognized that
the possibility existed that Rice and Gilbert were fabricating the
allegations in order to rid themselves of employees they did not
like, thought continued to be given to termination of the ac-
cused harassers.
As I have indicated, I find that the Company was giving
genuine consideration to discharging the persons named by
Rice as harassers, including Shapley and Schantz. However,
this is only part of the story as revealed in the contemporaneous
documentation. It is very clear from that documentary evi-
dence that this consideration was extended to the employees as
a group. The documents always refer to four-to-five employees
subject to discharge. In addition, the documents demonstrate a
consistent concern that the discharges be made as part of an
orderly transition process so as to protect productivity and meet
commitments to customers. This attitude was consistent with
the Company’s past performance as illustrated by the stagger-
ing of the 3-day suspensions imposed as part of the perform-
ance improvement process in the preceding month. The docu-
ments reflect that the completion of the hiring requisition proc-
ess, the selection of new hires, the training of those selected,
and the preparations for the termination process by Supervisor
Howard were all vital preconditions to the discharges.
All of this stands in stark contrast to what actually occurred
on May 28. First of all, only two alleged harassers were dis-
charged. The Company did not present any rationale to explain
why these particular men would have been selected for dis-
charge. While Rice did consistently maintain that Shapley had
harassed him on May 7, it was obvious that the same could not
have been true for Schantz. It will be recalled that on that date,
Schantz was not at work. Furthermore, when Rice was inter-
viewed about the harassers in September, his responses expose
the lack of rationale for the selection of Shapley and Schantz.
As befits the evidence, Rice expressly denied that Schantz had
threatened him. On the other hand, he asserted that both Cole
and Howard had threatened him. There is simply no evidence
to explain why the Company altered its clearly articulated plan
to fire all the accused harassers. Nor is there any evidence,
apart from participation in protected activities, to explain why
Shapley and Schantz were the chosen subjects of termination.
Perhaps even more significantly, the evidence shows that the
Company’s careful planning process was abandoned on May
28. In a key exchange, counsel for the General Counsel ex-
plored this with Adams,
COUNSEL: Shapley and Schantz. You didn’t replace
them right away, did you?

41 In itself, this is evidence of animus. As the Board has noted, “[a]n
employer’s failure to permit an employee to defend himself before
imposing discipline supports an inference that the employer’s motive
was unlawful.” [Citations omitted.] Embassy Vacation Resorts, 340
NLRB 846, 849 (2003). See also Hospital Espanol Auxilio Mutuo de
Puerto Rico, Inc., 342 NLRB No. 40, slip op. at 3 (2004) (animus
shown when employer accepted complaints as true without affording
employee an opportunity to rebut them), and Rood Trucking Co., 342
NLRB No. 88 (2004), slip op. at p. 6, (failure to confront employee
with surveillance report prior to discharging him was action “indicative
of a discriminatory intent”).
ADAMS: I don’t recall we had candidates ready neces-
sarily to replace them, no.
(Tr. 1083.) Yet, this was a key precondition discussed in every
document relating to the harassment problem.
Based on the evidence, I readily conclude that if the men had
been discharged for harassing Rice, they would have been fired
by Howard and accompanied out the door by their fellow al-
leged harassers. Beyond that, entering the door while they
departed would have been their replacements, replacements that
had been preauthorized, preselected, and perhaps even pre-
trained. The absence of these things sheds a harsh and reveal-
ing light upon the Company’s actual motive.
In sum, I find that the Company has failed to meet its burden
of demonstrating that it would have discharged Shapley and
Schantz regardless of their protected activities. The contention
that they were discharged in whole or part for poor work per-
formance is simply a pretext so illogical as to be readily dis-
carded. The contention that they were discharged, either in
whole or part, for harassing Randy Rice has the outer trappings
of substance. It is indeed possible that the two men would have
been discharged for this at some future date. However, such a
scenario would have involved discharge of other employees as
well and would have been accompanied by the prudent steps
repeatedly outlined in the documents as being vital to the pro-
tection of the Company’s business interests. Therefore, while
the Company may conceivably have had grounds to discharge
Shapley and Schantz for harassment, the fact remains that it did
not actually discharge them for this reason.42 Based on all of
the credible evidence, I find that that actual motive was the
unlawful reason alleged by the General Counsel and described
with precision in the testimony of Wales.
C. The Incidents Involving Moran
The Company and its predecessors have employed Moran
since 1995. Hehas served as a maintenance electrician since
2000. Heatherington is his team leader and Gilbert is the su-
pervisor of the maintenance staff. The General Counsel alleges
that the Company took action against Moran on four separate
occasions. He further contends that on each occasion, the mo-
tive for such action was retaliation against Moran for participa-
tion in these proceedings. If established, such conduct would
violate Section 8(a)(1) and (4) of the Act.
Section 8(a)(4) prohibits discrimination against an employee
“because he has filed charges or given testimony under this
Act.” The Board interprets this Section liberally in recognition
of the congressional intent to encourage workers to feel free to

42 The importance of this point of law is amusingly illustrated in the
case of Edward G. Budd Mfg. Co. v. NLRB, 138 F.2d 86 (3d Cir. 1943),
cert. denied 321 U.S. 778 (1944). In upholding the Board’s conclusion
that an employee, one Weigand, had been fired for union activity, the
Circuit Court noted that, “[i]f ever a workman deserved summary dis-
charge it was he.” 138 F.2d at 90. Weigand had attended work while
intoxicated, came and went as he pleased, readily admitted that he did
not know anything about his job, and brought a woman into the plant
for unspecified dubious purposes. Despite all this, his behavior had
been tolerated for a long time, until he began organizing activity.
Shortly thereafter, he was fired. The Court affirmed the Board’s order
requiring his reinstatement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD312
report perceived violations of the Act to the Board. Metro
Networks, Inc., 336 NLRB 63, 66 (2001), and the cases cited
therein. Alleged violations are assessed using the Wright Line
methodology. McKesson Drug Co., 337 NLRB 935, 936
(2002). Using this form of analysis, I will now examine each
of the four employer actions against Moran alleged to be
unlawful.
The General Counsel’s first allegation is that on January 13,
2004, Gilbert “verbally harassed . . . Moran because he gave
testimony under the Act” in violation of Section 8(a)(1) of the
Act.43 (GC Exh. 1(n), p. 3.) At the first step, the evidence is
clear that Moran’s situation at that time involved protected
conduct. On December 30, 2003, counsel for the General
Counsel had issued a subpoena commanding Moran’s atten-
dance on January 13, 2004, in order to take his testimony re-
garding the unfair labor practice charges arising from the dis-
charges of Shapley and Schantz. (GC Exh. 6.) Moran testified
that he received this subpoena on January 6. Having been sub-
poenaed in this manner, Moran was entitled to protection under
the Act. NLRB v. Scrivener, 405 U.S. 117, 124 (1972) (“Once
an employee has been subpoenaed he should be protected from
retaliatory action regardless of whether he has filed a charge or
has actually testified.”).
The evidence also reveals that the Company was fully aware
of Moran’s involvement in the upcoming trial. I credit Moran’s
testimony that Gilbert raised the trial in a conversation with
him on January 5. During that conversation, Moran stated his
belief that Shapley and Schantz had been discharged for union
activities. On the following day, Moran was asked to attend a
meeting with management officials and the Company’s former
attorney. The purpose of the meeting was to discuss the Board
proceedings. During the meeting, Moran informed the partici-
pants that Gilbert had approached him on May 28 in order to
interrogate him regarding union activities. Finally, in prepara-
tion for his attendance at trial on January 13, Moran submitted
a vacation request form for that date.44 Gilbert testified that he
was aware that Moran had been subpoenaed. From all this, I
have no difficulty in finding that the Company was aware of
Moran’s status as a prospective witness under subpoena by the
General Counsel.
At the next steps of the analysis, I must determine whether
Moran was subject to adverse employment action (i.e., harass-
ment by his supervisor), and whether such adverse action was
substantially motivated by animus against him due to his an-
ticipated participation in Board proceedings. Moran testified
that he did not attend any Board proceedings on January 13

43 Although the complaint links the harassment to Moran’s status as
a witness, a violation of Sec. 8(a)(4) is not alleged as to this episode.
The Board has held that harassment in retaliation for participation in
Board proceedings violates Sec. 8(a)(4). See FiveCAP, Inc., 332
NLRB 943 (2000), enf. 294 F.3d 768 (6th Cir. 2002), and NLRB v. S.E.
Nichols, Inc., 862 F.2d 952, 960–961 (2d Cir. 1988), cert. denied 490
U.S. 1108 (1989). Since any remedy would be cumulative, I will not
further address this question.
44 Gilbert made reference to this leave request form during his con-
versation with Moran on January 13, the conversation that is the subject
of this analysis.
since the trial date had been postponed.45 As a result, he re-
ported for work at his normal time. Early in his shift, he was
examining a machine operated by Hutchings. He testified that
Gilbert called him on the radio and instructed him to stop
speaking with Hutchings, noting that, “this behavior will not be
tolerated.” (Tr. 119.) Afterward, Moran went to see Gilbert to
discuss the incident. He testified that Gilbert told him that he
did not want Moran “get mixed up in” the Board’s proceedings.
(Tr. 120.)
Moran’s account is strongly corroborated by Heatherington’s
testimony.46 Indeed, his testimony sheds additional light on the
nexus between Gilbert’s chastisement of Moran and Moran’s
participation in the Board’s proceedings. Heathington ex-
plained that he overheard Gilbert speaking to Moran by radio.
Gilbert taunted Moran, noting that he thought Moran was going
to be on vacation that day. Moran explained that he had sub-
mitted a vacation slip, but now wanted it to be cancelled.
Heatherington testified that Gilbert responded,
What happened? You can’t make up your mind whether you
want to come to work or want to be on vacation?
(Tr. 197.) Heatherington was so appalled by what he had over-
heard that he confronted Gilbert later that day, telling him that
his treatment of Moran had been sarcastic and inappropriate.
I find that Moran was subjected to verbal harassment by his
supervisor on January 13, conduct that was so far beyond the
ordinary that it provoked a rebuke from Heatherington. I fur-
ther conclude that the motivation for the verbal abuse was
Moran’s anticipated participation in the upcoming trial. It is
particularly logical to draw this connection with respect to Gil-
bert since Gilbert was aware that Moran intended to provide
testimony that would directly undermine his own account of the
key events leading to the discharges of Shapley and Schantz.
At the final step of the assessment, counsel for the Company
notes that the evidence shows that Gilbert was often “sarcastic
and abrasive” to employees. (R. Br. at p. 31.) He suggests that
there was no evidence to suggest that his similar treatment of
Moran on that day was “because of his expected NLRB testi-
mony.” (R. Br. at p. 31.) I disagree. There is a clear connec-
tion established by Gilbert’s pointed reference to Moran’s can-
cellation of his leave request, a situation that was necessitated
by the postponement of the trial. That connection was then
underscored by Gilbert’s direction to Moran to avoid becoming
“mixed up” in the Board proceedings. (Tr. 120.) The Com-
pany has failed to establish that there was any legitimate reason
for Gilbert to make these sarcastic remarks to Moran. All of
the evidence indicates that the sole rationale for Gilbert’s com-
mentary was animus against Moran arising from his expected
testimony, testimony that Gilbert knew would undermine his
own position in the case. I conclude that the General Counsel
has met his burden of demonstrating that Gilbert’s conduct on
this occasion violated the Act.

45 On January 9, the Regional Director issued an order postponing
the trial until April 19. (GC Exh. 1(h).)
46 Hutchings also provided support for Moran’s account, noting that
he heard Gilbert come on the radio and complain about Moran’s exces-
sive standing around and talking.
BLISS CLEARING NIAGARA, INC. 313
It is next alleged that the Company acted unlawfully when it
issued Moran a 3-day suspension on February 13, 2004. Once
again, analysis begins by noting Moran’s status as a witness
expected to testimony at the rescheduled Board proceedings.
Beyond this, Moran was no longer merely a witness. On Janu-
ary 21, he had filed an unfair labor practice charge against his
employer, alleging that he had been harassed by Gilbert as just
described. (GC Exh. 1(j).) Moran’s status as both a witness
and a charging party brought him within the Act’s protection.
On January 21, the Regional Director served a copy of
Moran’s charge on the Company. (GC Exh. 1(k).) This, cou-
pled with the previously recounted evidence of knowledge of
Moran’s status as a witness, establishes that the General Coun-
sel has satisfied the second of his evidentiary burdens. In addi-
tion, there can be no doubt that the issuance of a 3-day suspen-
sion to Moran constituted an adverse employment action.
Turning to the issue of employer motivation, it is important
to note that Gilbert was the management official who issued the
corrective action report. The record is replete with evidence of
Gilbert’s generalized animus against union organizing activity,
particularized animus against Moran arising from Moran’s
involvement in Board proceedings, and willingness to engage
in unlawful activity arising from his animus, including recom-
mending the discharge of employees due to their organizing
activity.47 Therefore, I conclude that the General Counsel has
established that unlawful animus formed a motivating factor for
Gilbert’s conduct in issuing the suspension to Moran.
I must now examine the Company’s defense to this charge.
In order to do so, it is necessary to recall the background. In
late January 2004, Moran was assigned to the Accuride project.
The workforce was under acute pressure to complete this job
expeditiously in order to meet commitments made to the cus-
tomer. Despite this, considerable evidence demonstrates that
Moran’s conduct on this job was characterized by instances of
misconduct and poor productivity. Gilbert testified that, based
on his experience with this sort of work, Moran took exces-
sively long to complete his assigned tasks. He reported that
other employees assigned to the project, “were giving me slack
about how long I was gonna tolerate the inappropriate time-
frame it took for Larry [Moran] to do his part of the work.”
(Tr. 816.)
Throughout this decision, I have expressed grave reserva-
tions about the credibility of Gilbert’s account of events related
to union organizing and the Board’s proceedings. However, I
conclude that the situation is different here.48 When describing
his normal supervisory functions and his relationship with
Moran as regards the work processes, Gilbert struck me as far
more persuasive. He demonstrated a clear and confident mas-
tery of his supervisory role in overseeing the flow of the com-

47 As will be discussed later, Gilbert was also willing to unlawfully
interrogate and threaten employees in order to thwart their organizing
efforts.
48 The Board has often noted that it is routine for fact finders in these
proceedings to credit some, but not all, of a witness’ testimony. See
Daikichi Sushi, 335 NLRB 622 (2001), and Amber Foods, Inc., 338
NLRB 712–715 fn. 13 (2002), both citing Judge Learned Hand’s ob-
servations in NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950), revd. on other grounds 340 U.S. 474 (1951).
pany’s production process. Having said this, I nevertheless
have approached his testimony with a healthy degree of skepti-
cism. Ultimately, I am impressed and convinced by the cor-
roborating evidence presented by the Company on the issue of
Moran’s work performance.
To begin with, I place weight on the overall assessment of
Heatherington, a witness whose opinions were characterized by
fearless objectivity. As Moran’s coworker and team leader, he
was in a position to fully evaluate Moran’s work ethic and hab-
its. It was clear that he found Moran to be less than satisfac-
tory, noting that he lacked the requisite “enthusiasm and zeal”
for his work.49 (Tr. 662.) More important than Heatherington’s
overall opinion, Moran’s fellow employees testified in support
of Gilbert’s assertions regarding Moran’s poor performance on
the Accuride project. Scott Binkowski was also assigned to the
Accuride work. He testified that he became frustrated with
Moran’s practice of being unavailable when problems arose.
His unhappiness with his coworker culminated in a decision to
tell Gilbert that, “it would be nice if Larry could stick around
every once in a while.” (Tr. 542.)
By the same token, Dave Boomer testified as to his dissatis-
faction with Moran’s work on the Accuride presses. Interest-
ingly, Boomer and Moran were assigned to perform an identi-
cal chore, wiring of two so-called pigtails. Boomer testified
that he completed his assignment by 1 p.m. Moran did not
finish the job until the following day. As a result, Boomer
asked Gilbert, “[I]f Larry could be transferred back to mainte-
nance and I would just do the job.” (Tr. 757.)
With this context, I have examined the Company’s asserted
rationales for imposition of the 3-day suspension as set out in
the corrective action report. The general reason for the suspen-
sion is described as “[o]verall low productivity.” (GC Exh. 7,
p. 1.) Four examples are listed. The first example concerns the
pigtail job already discussed. It is asserted that Moran spent 1.5
days on the job versus an expected period of 4 hours. This
mirrors Boomer’s testimony.
The second specific allegation was that Moran left his work-
station prior to the end of his shift on January 30. Moran testi-
fied that, “according to the Rule Book” employees are not per-
mitted to leave their workstations until 3:25 p.m. if the shift
ends at 3:30 p.m. (Tr. 162.) He also testified that on January
30, he left his workstation at 3:20 p.m. Gilbert testified that he
observed that Moran was not present at his workstation as of
3:15 p.m. and that his toolbox was locked up. He noted that he
asked Moran’s coworkers about his whereabouts and they “all
just kind of laughed and looked at his [tool]box, it was kind of
obvious that . . . he was closed up and done for the day.” (Tr.
817–818.)
The third reported example of Moran’s deficient productivity
referred to an incident on February 6 during which it was con-
tended that Moran ignored Gilbert’s instructions and made
errors in the wiring of one of the Accuride presses. Without

49 By contrast, I note that Heatherington testified that Shapley and
Schantz were “very competent, skillful workers.” (Tr. 192.) Again,
this illustrates Heatherington’s willingness to give forthright assess-
ments regardless of who may be pleased or angered by them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD314
delving into all the technical details, suffice it to say that Gil-
bert testified that he told Moran to wait for necessary parts. By
contrast, Moran testified that Gilbert authorized him to com-
plete the job in a manner that would not require those parts.
While the conflicting testimony as to this situation was some-
what of a standoff, on balance, I credit Gilbert since his overall
appraisal of Moran’s job performance was corroborated by the
testimony of Heatherington, Binkowski, and Boomer.
The final example involved an issue unrelated to the Ac-
curide project. Moran was criticized for spending unnecessary
time reviewing the operation of a machine customarily operated
by Vern Hayes. In defense against this allegation, Moran ex-
plained that he was not wasting time, but was rather investing
the effort needed to “learn about the machine.” (Tr. 134.) Gil-
bert testified that he had previously warned Moran “on numer-
ous occasions” for simply “staring” at this machine. (Tr. 822.)
He contended that Moran should have formulated a plan de-
signed to improve the machine’s performance. As he put it, “its
just the unnecessary standing there looking in the panel without
ever having a plan.” (Tr. 823.) Once again, I credit Gilbert
regarding this episode. I note that the situation differs from the
earlier incident involving Hutching’s machine. In that instance,
I found Gilbert’s remarks to be unlawful harassment because
Gilbert linked his comments directly to the Board’s proceed-
ings. Thus, I found the primary thrust of his criticism to be
directed at discouragement of Moran’s protected activities. By
contrast, there is nothing here to indicate a similar improper
motive. Instead, Gilbert’s dissatisfaction with Moran’s work
performance is part of a pattern of similar problems noted by
Gilbert, Heatherington, Binkowski, and Boomer. Furthermore,
the citation of this situation as one of a group of productivity
problems was primarily designed to form part of a written per-
formance improvement plan, a legitimate supervisory effort.
In addition to finding that the Company’s rationale for disci-
plining Moran had substance, I note that the discipline was
imposed in a manner entirely consistent with past practice. The
evidence regarding that past practice shows that four employees
had previously been subject to discipline for poor productivity.
Those suspensions were imposed in April and May 2003.
There is no contention that they were in any way influenced by
unlawful animus. Because they concerned Shapley, Schantz,
Jensen, and Hayes, the details have already been thoroughly
discussed. Those suspensions involved the use of the same
type of disciplinary form with its references to an overall com-
plaint and specific examples. Even more significantly, each of
those instances of discipline involved the imposition of the
identical sanction to that assessed against Moran. The consis-
tent nature of the Company’s efforts to respond to productivity
issues is probative evidence in support of the regularity of its
treatment of Moran.
The Board’s Wright Line formulation embodies a mature
recognition of the complexities of human thought and behavior.
Important supervisory decisions can often involve a poorly
differentiated set of factors, including entirely logical and ap-
propriate thoughts combined with base and unworthy emotions.
Moran’s suspension involved just such an aggregate of factors.
I find that in untangling the strands of Gilbert’s decision mak-
ing, the rational predominated. In other words, the determina-
tive motivator for the issuance of the suspension was legitimate
and appropriate concern about Moran’s poor work ethic and
productivity, particularly as it related to an important Company
work project. I am persuaded that Moran would have been
suspended regardless of his involvement in protected activities.
As a consequence, the Company has shown that its decision to
suspend Moran was not unlawful.50
Less than 2 weeks after he was suspended, Moran was again
subject to disciplinary action. On February 24, he was issued a
second corrective action report, citing him for two violations of
the Company’s leave and attendance policies. Unlike the prior
corrective action report, this one did not impose any sanction
beyond the written warning.
Turning to the analysis of this alleged violation of the Act, I
have already noted that Moran’s status as a charging party and
subpoenaed witness for the upcoming trial placed him under the
Act’s protection. In addition, the evidence demonstrates that
the Company was aware of his status. Furthermore, there can
be no doubt that the written warning was an adverse action,
particularly as it noted that further violations of leave and at-
tendance policies “will result in disciplinary action up to and
including termination.” (GC Exh. 8.)
Regarding the Company’s motivation in imposing this writ-
ten warning, I conclude that animus against Moran’s upcoming
participation in Board proceedings was involved. I reach this
conclusion for the same reasons as discussed with reference to
the prior alleged acts of retaliation against him.
Having made these findings, the focus returns to the issue of
whether the Company has met its burden of showing that it
would have issued the written warning to Moran regardless of
his involvement in the Board proceedings. Once again, I con-
clude that it has met this burden.
The events under discussion began on February 19. Moran
testified that Gilbert was not present at the plant on this date.51
Having decided to take a half-day of vacation time on the fol-
lowing day, Moran placed a request for vacation time on Gil-
bert’s desk. In Heatherington’s presence, he made an ostenta-
tious show of placing the document on the desk. I conclude
that he did this because he knew that he was playing fast and
loose with the Company’s vacation policy.
On the following day, Moran was present at work during the
morning. Gilbert saw him at that time. Moran reported that he
did not see Gilbert and noted that, “I made no attempt to.” (Tr.
139.) After working a half-day, Moran departed. That after-
noon, Gilbert searched for Moran. Upon being unable to locate
him, he questioned Heatherington who told him about the vaca-
tion request slip. Gilbert testified that he located the slip
“tucked into paperwork on the daily logs” on his desk. (Tr.
826.) He signed and dated the slip, indicating his approval. He

50 As the Board noted in a similar case involving an employee named
Doll, “even if Doll’s union activity were a reason for her discharge, the
Respondent met its burden under Wright Line, 251 NLRB 1083 (1980),
and demonstrated it would have discharged Doll in the absence of such
protected activity.” Arlington Hotel Co., 278 NLRB 26 (1986).
51 The fact that Gilbert was not available does not excuse Moran’s
subsequent conduct. In his testimony, he admitted that he knew that in
Gilbert’s absence, his supervisor would be Howard. He made no effort
to seek approval of his vacation request from his acting supervisor.
BLISS CLEARING NIAGARA, INC. 315
did so because he recognized that, “it was done and over with,
you know. I just figured I’d talk to Larry come Monday.” (Tr.
829.) In particular, Gilbert was concerned that Moran had
submitted the request for leave but had not bothered to learn if
it had been approved before departing the plant.
Gilbert’s plan to speak to Moran on the next workday, Mon-
day, February 23, was thwarted by Moran’s decision to take
that day off. Moran testified that he had injured his foot over
the weekend and decided not to report for work that Monday.
He telephoned Heatherington and told him that he would not be
coming in. He asked Heatherington “to relay the message to
Dan.” (Tr. 136.) Heatherington did so.
On the following day, February 24, Moran was issued the
written warning arising from the incidents on the two preceding
workdays. That notice asserts that Moran’s conduct was in
violation of the Company’s employee handbook. Examination
of the handbook supports the Company’s position. It author-
izes employees to take vacation time in half-day increments as
Moran desired. However, it provides that “[v]acation time
must be scheduled with the employee’s supervisor.” (R. Exh.
7, p. 18.) By the same token, the handbook acknowledges that
there will be times that an employee is unable to report for a
scheduled shift. In such a case, it directs that employees “must
notify their immediate supervisor before the beginning of their
scheduled reporting time.” (R. Exh. 7, p. 13.)
I conclude that Moran did, in fact, violate the cited provi-
sions of the handbook. He failed to make reasonable efforts to
obtain his supervisor’s approval before taking a half-day of
vacation on February 19. He could have easily raised the issue
with Howard, his acting supervisor. Failing in this, he still had
ample opportunity to speak to Gilbert on the morning of the
19th. His decision to leave without determining whether his
vacation request had been approved was a violation of company
policy.
Regarding Moran’s manner of calling in sick, I reach a simi-
lar conclusion. Moran did not testify that he made any effort to
speak with Gilbert on the morning of February 23. His deci-
sion to speak with Heatherington was not an acceptable substi-
tute. At that time, Heatherington had not yet been appointed as
team leader and had no supervisory authority. There is simply
no explanation as to why Moran failed to contact Gilbert di-
rectly. Boomer testified that when an employee calls in sick, he
dials the Company’s main telephone number. This connects
the caller to a voice mail system that enables the caller to select
the extension and message box for the intended recipient.
Moran never explained why he failed to use this system to
speak with Gilbert or at least leave a message for him. I am
persuaded that Moran’s actions on this date were designed to
avoid the possibility that he would have to discuss his leave
status with Gilbert. He selected Heatherington’s extension
instead, thereby ensuring that he would present Gilbert with a
fait accompli. This violated the Company’s policy.52 The fact
that Moran’s warning was based on his violations of preexisting
written policies lends credence to the Company’s disciplinary
action.

52 In an exchange that is too lengthy to quote here, Moran admitted
as much. (Tr. 171–172.)
Counsel for the General Counsel asserts that the issuance of
the warning to Moran constituted disparate treatment since
other violations of the attendance policies had been tolerated.
The evidence does show that some violations, including prior
violations by Moran, had been excused. As Gilbert put it in a
slightly different context, “you have to let things, some things,
go.” (Tr. 912.) Nevertheless, the decision not to let these in-
stances of Moran’s behavior go was not evidence of disparate
treatment and animus. Gilbert testified that he did intend to let
Moran’s first violation on February 19 pass with a simple ver-
bal discussion on the next workday. Unfortunately, on that day,
Moran chose to again violate the leave and attendance rules.
And, all of this followed on the heels of Moran’s suspension, a
sanction that was imposed in part due to Moran’s unauthorized
early termination of his shift, a similar type of infraction. I
conclude that Moran’s conduct was repeated and flagrant. It
was of a different degree altogether from the occasional infrac-
tions of the leave and attendance policies that were previously
tolerated by management. As Gillesse put it,
it seemed like there was more of this starting to happen. It was
these types of things were becoming more frequently . . . . We
wanted to make sure that, again, we got his attention and let
him know that what was happening was not satisfactory.
(Tr. 964–965.)
I find that the Company has met its burden of establishing
that it imposed this sanction on Moran for legitimate reasons.
Moran’s repeated misconduct justified the Company’s concern.
The discipline was imposed for violation of preexisting written
policies. Additionally, it consisted of a carefully calibrated
sanction, the written warning. I note that had the Company
been primarily motivated by animus, it could have chosen a far
more severe punishment and justified its choice by asserting
that it was a progressive disciplinary step following the prior 3-
day suspension. The fact that it did not adopt this course is
additional evidence that its predominant motives were genuine
and proper. As a result of these considerations, I conclude that
the Company would have issued Moran a written warning for
leave and attendance violations regardless of his participation
in protected activities.
The General Counsel alleges an additional instance of re-
taliation against Moran, the decision to deprive him of the op-
portunity to work on Saturday, June 5. Following the analytical
steps, I first note that by this time Moran’s involvement in pro-
tected activities was far larger. He was no longer merely a
prospective witness in the upcoming trial. On June 2, Moran
actually appeared as a witness, giving testimony that was sig-
nificantly adverse to the Company’s interests. In addition, he
played an active role as a charging party, sitting at counsel table
throughout the proceedings and assisting counsel for the Gen-
eral Counsel. Adams, who was present throughout in a similar
role assisting counsel for the Company, witnessed his testimony
and activities. On the day following the conclusion of the first
week of this trial, Moran was denied the opportunity to work an
extra shift. For reasons shortly to be discussed, I find that he
had been previously assigned to work this shift. His abrupt
removal from it was an adverse action that deprived him of the
opportunity to earn additional income. The Board has held that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD316
reduction in an employee’s work hours or overtime made in
retaliation for participation in Board proceedings violates the
Act. USA Polymer Corp., 328 NLRB 1242, 1243 (1999), enf.
272 F.3d (5th Cir. 2001), cert. denied 536 U.S. 939 (2002).
Before addressing the evidence regarding motivation, it is
appropriate to summarize the events involved in the considera-
tion of this charge. It is undisputed that the Company was ex-
periencing a problem with one of its transformers. It was de-
cided to remove the faulty equipment and reroute the power
supply using the remaining transformers. Both testimony and
documentary evidence clearly establish that Moran was a key
participant in this endeavor. Throughout April, he worked on
the early stages of the project and company time records fully
document his involvement. In addition, Moran sought and
obtained management’s approval for the hiring of a consultant
to brief him on the technical requirements for the job. That
consultant, Van Sweden, met with Moran and addressed corre-
spondence related to the project directly to Moran. (GC Exhs.
33 and 34.)
Heatherington testified that management selected Moran as
one of the employees who would remove the transformer on
Saturday, June 5. His selection is entirely logical given the
evidence showing that he had been playing a leading role on the
project. It would defy logic to believe that the Company would
fail to arrange for the employee who had obtained the technical
consultation to be present during the work itself. Once again,
documentary evidence lends further support to a finding that
Moran was assigned to this extra shift. Gilbert prepared over-
time request forms. (GC Exhs. 49 and 50.) Those forms show
that Moran was to be involved in the Saturday work. They also
contain crude alterations that demonstrate that a hasty decision
was made to remove him from the rolls of those who would
work the extra shift.
Moran was never informed that he had been removed from
the Saturday project. Based on the testimony, I conclude that
Gilbert assumed Heatherington would tell Moran. Similarly,
Heatherington assumed that Gilbert would do so. In the event,
neither assumption was correct. Moran reported for work that
Saturday morning. He was advised that his services were not
required and he departed. Interestingly, on the following
Wednesday, Moran received a memorandum from Gillesse. In
it, Gillesse advised Moran that he was being issued a check for
2 hours’ pay because, “you reported to work on Saturday[,]
June 5, 2004 but were excused shortly thereafter.” (GC Exh.
32.) Gillesse went on to quote the handbook’s provision:
If you are asked to report to work on any day including Satur-
day, Sunday or a holiday and you do so at the specified time,
you shall receive a minimum of (2) two hours pay at your
regular rate if no work is available.
(R. Exh. 7, p. 17 as quoted in GC Exh. 32.) Gillesse’s memo-
randum to Moran contains a clear concession that Moran had
been scheduled to work on June 5, had reported as scheduled,
and had not been permitted to work.
I find that the evidence compels a conclusion that the deci-
sion to deprive Moran of this work opportunity was purely
motivated by unlawful animus. I have already noted the con-
siderable evidence of such animus directed against Moran,
including an act of verbal harassment that violated the Act. It
will also be recalled that several months before this event, Gil-
bert engaged in a discussion with Heatherington during which
he made reference to Moran’s filing of a charge against the
Company. At that time, he told Heatherington that, “Larry
really needs to be gone.” (Tr. 207.)
Beyond this background of generalized animus against
Moran, the timing of the Company’s action on June 5 is strong
evidence of unlawful motivation. Moran spent the 3 days im-
mediately preceding that date engaged in testifying against the
Company and assisting counsel for the General Counsel in
presenting the case against the Company. The close temporal
relationship between Moran’s highly visible role at trial and the
deprivation of his assigned work opportunity is compelling
evidence of unlawful motivation. Lastly, I conclude that the
employer’s asserted justification for Moran’s removal from the
Saturday schedule is purely pretextual. As such, it constitutes
evidence of unlawful animus. Palace Sports & Entertainment,
Inc., 342 NLRB 578, 579 at fn. 9 (2004).
Under objective scrutiny, management’s explanation of its
rationale for the decision to deprive Moran of his chance to
earn extra income on Saturday appears to border on the absurd.
Gilbert expressed that rationale, explaining that Moran
was pulled off this [Saturday shift] for—one main reason be-
causehe was gone the two days for court and he never even
called in to even, to find out if he was gonna work or not. He
was never scheduled to work. Why would he come in on a
Saturday if he was not asked to come in and work.
(Tr. 858.) Of course, this makes no sense. If he had never been
scheduled to work, there would have been no need to have him
“pulled off” the assignment list. He most certainly was sched-
uled to work as demonstrated by Heatherington’s testimony, the
documentary evidence, and the logic involved in consideration
of Moran’s central role in the preparatory work for the project.
I also do not credit Gilbert’s assertion that Moran failed to
inform the Company of his whereabouts during the 3 days im-
mediately preceding that Saturday. In the first place, Moran
testified that he prepared and submitted a vacation request slip
for the first day of trial, June 2. He further stated that on the
mornings of June 3 and 4, he reported to the plant prior to the
start of the trial proceedings and “told Archie Howard that I had
to return to the courtroom.” (Tr. 571.) This testimony was
uncontroverted. The Company failed to call Howard as a wit-
ness and I infer that his testimony would not have supported
Gilbert’s account. In any event, in his testimony, Gilbert con-
ceded that he “assumed” that Moran was attending the hearing
on the dates in question. (Tr. 845.)
The ultimate reason for concluding that the Company’s de-
fense to this charge is pure pretext is the logic of the situation.
I can appreciate an employer’s concern that the workforce as-
signed to a critical Saturday project actually appear as sched-
uled so that the work can be completed. If Moran had been on
a fishing trip in the Yukon and had failed to confirm his inten-
tion to be present on Saturday, it may well have been prudent to
pull him off the roster. Far from being in a remote and exotic
locale, Moran spend the 3 days immediately prior to the Satur-
day shift in the continuous presence of Adams, the Company’s
BLISS CLEARING NIAGARA, INC. 317
vice president. Had any genuine concern existed regarding his
intentions for Saturday, it would have been virtually effortless
for Adams to ask him to contact Gilbert or simply to verify his
plans directly.
Based on the evidence, with particular emphasis on the fac-
tors of timing and pretext, I conclude that the General Counsel
has met its burden of showing that Moran’s removal from the
Saturday schedule was motivated by unlawful animus. While it
has been appropriate to carefully analyze the Company’s as-
serted rationale for other actions taken against Moran, this is
not necessary with respect to this charge. The Board has made
it clear that in cases where the proffered reason for the em-
ployer’s actions is found to be purely pretextual and that no
legitimate reason exists, “there is no dual motive, only pretext.”
La Gloria Oil & Gas Co., 337 NLRB 1120, 1126 (2002), affd.
71 Fed. Appx. 441 (5th Cir. 2003). In such circumstances, the
analysis is not carried through the final step. Golden State
Foods, 340 NLRB 382 (2003). Because the Company has of-
fered nothing beyond pretext, such is the case here.
To summarize, the General Counsel has charged the Com-
pany with taking four adverse actions against Moran that are
alleged to violate the Act. I have concluded that the General
Counsel has met his initial burden with respect to each charge.
The evidence shows that Moran’s conduct and situation were
entitled to the Act’s protection and that his employer was aware
of his protected status and activities. I have also found that it
subjected Moran to four adverse employment actions and that
each action was, to one degree or another, motivated by unlaw-
ful animus. Upon careful individualized analysis of each ac-
tion, I have ultimately concluded that Gilbert’s harassment of
Moran and removal of Moran from the Saturday schedule were
primarily motivated by animus and would not have occurred
but for such unlawful motivation. By contrast, the issuance of
the 3-day suspension and subsequent written warning to Moran
were both principally motivated by legitimate concern about
Moran’s deficient work ethic and performance. As a result,
those disciplinary actions would have been undertaken regard-
less of Moran’s involvement in these proceedings.
D. Other Allegations of Misconduct by Gilbert
The General Counsel alleges that Supervisor Gilbert engaged
in additional forms of unlawful conduct: interrogating employ-
ees concerning their protected activities, informing employees
that those activities were under surveillance by their employer,
and issuing a threat of plant closure in the event the workforce
chose union representation. This behavior is alleged to violate
Section 8(a)(1) of the Act.
In evaluating the alleged interrogations, I am mindful that
the Board has held that,
it is well-established that interrogations of employees are not
per se unlawful, but must be evaluated under the standard of
“whether under all the circumstances the interrogation rea-
sonably tended to restrain, coerce, or interfere with rights
guaranteed by the Act.” [Citing Rossmore House, 269
NLRB 1176, 1177 (1984).] In making that determination, the
Board considers such factors as the background, the nature of
the information sought, the identity of the questioner, the
place and method of interrogation, and whether or not the
employee being questioned is an open and active union sup-
porter. [Footnotes omitted.]
Norton Audubon Hospital, 338 NLRB 320–321 (2002). I will
assess each of the alleged conversations by application of this
standard.
As made clear in counsel for the General Counsel’s brief, it
is first contended that on the same day that Shapley began col-
lecting the names and addresses of employees in furtherance of
his union organizing plan, Gilbert improperly interrogated
Moran. Moran testified that, shortly after noon, Gilbert asked
to speak with him. He told Moran that he had heard that indi-
viduals were “trying to form a union” and were collecting
names and addresses. (Tr. 111.) Moran indicated that he did
not know anything about this. Gilbert persisted, adding, “I hear
one of them is Dewey [Schantz].” (Tr. 111.) Moran again
pleaded ignorance. As the conversation ended, Gilbert ob-
served that “there’s going to be some changes around here to-
day.” (Tr. 111.)
Gilbert denies any such conversation with Moran on May 28.
For reasons I have already discussed in detail earlier in this
decision, I reject Gilbert’s denial. Moran’s account is corrobo-
rated by Gilbert’s own admission that he had focused his atten-
tion on Shapley and Schantz that morning, by Wales’ testimony
regarding Gilbert’s later activities on that day, by Gilbert’s
pattern of unlawful behavior in violation of the Act, and by
Moran’s consistent account of this incident given to former
counsel for the Company at a time when he had no apparent
pecuniary or other interest in the litigation.
Having found Moran’s account to be credible, it is evident
that Gilbert’s questioning crossed the Board’s line of demarca-
tion. Gilbert was Moran’s direct supervisor. In addition, Gil-
bert had established a rather fearsome presence among the em-
ployees due to his tendency to resort to sarcasm and other
forms of abrasive commentary in carrying out his supervisory
responsibilities. His manner of presenting himself to his subor-
dinates forms part of the context under review. In addition,
Moran was not an open union supporter. It was clear that Gil-
bert’s objective during the conversation was to obtain informa-
tion about the organizing activities, and particularly to obtain
confirmation that Schantz was involved. Thus, the purpose of
the questioning was to seek “information upon which to take
action against individual employees,” a prohibited purpose.
John W. Hancock, Jr., Inc., 337 NLRB 1223, 1224 (2002).
Finally, Gilbert terminated the conversation with an ominous
threatening remark that, taken in context, greatly heightened the
coerciveness of his questioning. I conclude that Gilbert’s inter-
rogation of Moran on May 28 violated Section 8(a)(1) of the
Act.
On Sunday, June 29, 2003, the Union held an organizing
meeting. The General Counsel alleges that on the following
Monday Gilbert unlawfully interrogated Jason Sayles, Doug
Edinger, Larry Moran, and other unnamed employees. Sayles
testified that Gilbert approached him early in the shift and
asked him “what went on in the meeting on Sunday.” (Tr.
238.) After Sayles declined to provide this information, Gilbert
asserted that, “he heard that I was one of the big-wigs of the
meeting.” (Tr. 238.) Sayles denied this. Similarly, Moran
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD318
reported that Gilbert stopped him that morning and asked if he
went to the meeting. Gilbert asserted that he had heard that “a
lot of employees went to this meeting.” (Tr. 113.) Moran de-
nied attending.
Edinger testified that, on the same morning, he became
aware that Gilbert had been asking other employees about the
union meeting. In an apparent effort to forestall similar ques-
tioning, Edinger went into Gilbert’s office and told him that he
had attended the meeting. Gilbert asked him who else had
attended. The two men then proceeded to discuss the pros and
cons of union representation. Gilbert’s final comment to Ed-
inger was that “Ben [Landriscina] will close the place . . . [i]f
the union came in.” (Tr. 272.)
As I have previously noted, Gilbert’s testimony regarding his
conduct on this date was disingenuous. After first claiming that
he simply asked innocuous questions about how his employees’
weekends had been, he was later forced to concede that he had
actually asked about their Sundays. He further admitted that he
intended this question to be directed toward the union meeting
and that his employees took it to mean just that. Gilbert’s con-
cessions on the witness stand, coupled with the impressively
consistent testimony from the three employees persuades me
that the conversations took place as recounted by Sayles,
Moran, and Edinger. In addition, I find that similar interroga-
tions were directed at Tom Clemens, Dave Boomer, Greg Mat-
thews, Scott Binkowski, and Gary Sherry. I base this conclu-
sion on Gilbert’s testimony that he spoke to those employees on
that day, asking them about their “weekend.” (Tr. 808.) From
the evidence, I infer that the questions about the weekend were
actually pointedly directed at the union meeting.
Once again, I conclude that Gilbert’s questioning of numer-
ous employees about the union meeting violated Section 8(a)(1)
of the Act. He was the supervisor of these employees, a super-
visor known to be sarcastic and abrasive in his approach. None
of the men were open union supporters. Gilbert’s questions
were clearly designed to elicit specific information in order to
identify the participants in the meeting and assess their level of
involvement. As to Edinger, I recognize that he chose to initi-
ate the discussion. He made this unusual choice due to the
coercive impact on him caused by Gilbert’s interrogations of
his coworkers. Once Edinger gave Gilbert the opening, Gilbert
improperly sought the names of other persons who had at-
tended. Even more significantly, Gilbert coupled his question-
ing with a specific threat of dire consequences arising from
organizing activity. As with the other interrogations, I find that
Edinger was subjected to unlawful and coercive questioning.
Finally, the General Counsel alleges another unlawful inter-
rogation of Moran by Gilbert. Approximately a week before
the scheduled trial on the charges arising from the discharges of
Shapley and Schantz, Gilbert approached Moran. Moran testi-
fied that Gilbert told him that,
the Company wanted to know if anyone in the shop had in-
formation about the NLRB proceedings that were happening
on the 13th. And he asked me a couple of questions about the
union. He asked me if I had ever been threatened by him [“]if
I joined a union, I would befired.[”] And I told him no. He
then asked me if I thought that the Company fired Mike and
Dewey for their participation in the union. And I told him,
yes, I did think so. And he asked me why.
(Tr. 115.) In response to Gilbert’s last question, Moran re-
minded him of their conversation on May 28. Gilbert then
asserted that Shapley and Schantz’ union activities were not the
only reason they were discharged. He began to initiate further
questioning of Moran, but Moran declined to participate, re-
minding Gilbert that he was under subpoena.
In a position statement dated March 22, 2004, the Company
largely admitted that such a conversation had taken place.53 It
conceded that Gilbert had approached Moran “to see if he felt
threatened by him.” (GC Exh. 56, p. 2.) It denied any ques-
tioning about union activities, asserting that “the conversation
did not go beyond that initial inquiry.” (GC Exh. 56, p. 2.) It is
obvious that the source for this version of events was Gilbert. I
reject his claim that the conversation was so confined. Given
the history between the two men and the extent and nature of
Gilbert’s other misconduct, I credit Moran’s version of this
conversation.
Once again, considering all the circumstances, I find that the
interrogation violated Section 8(a)(1). Gilbert’s questions
about the Board’s proceedings and the status of the Union were
coupled with his pointed admission that Shapley and Schantz
had been fired, at least in part, for union activity. The perni-
cious impact of this manner of questioning is clear.
The General Counsel alleges that Gilbert made a specific
threat to Edinger during their conversation on June 30. I credit
Edinger’s account of this discussion, including his testimony
that Gilbert stated that Landriscina would close the plant if the
employees chose to organize.
Gilbert’s threat of plant closure is a statement of the type that
the Board characterizes as a hallmark violation of Section
8(a)(1) of the Act. High Point Construction Group, 342 NLRB
406, 408 (2004).
The General Counsel’s last set of allegations against Gilbert
also arise from statements that he made to employees on May
28 and June 30. It is alleged that these statements created an
impression that the Company had placed the employees’ pro-
tected activities under surveillance. The Board considers em-
ployer conduct that creates such an impression to be a violation
of Section 8(a)(1) of the Act. The rationale for this rule is con-
cern that employees should be shielded from fear that “mem-
bers of management are peering over their shoulders, taking
note of who is involved in union activities, and in what particu-
lar ways.” Fred’k Wallace & Son, 331 NLRB 914 (2000).
The Board has recently described the standard employed in
assessing this type of violation:
In order to establish an impression of surveillance violation,
the General Counsel bears the burden of proving that the em-
ployees would reasonably assume from the statement in ques-
tion that their union activities had been placed under surveil-
lance.

53 The position statement puts the date as being in November or De-
cember, but it is clear that the reference is to the same conversation
between the two men.
BLISS CLEARING NIAGARA, INC. 319
Heartshare Human Services of New York, Inc., 339 NLRB
842–843 (2003).
As to Gilbert’s statements on May 28, the credible evidence
shows that Gilbert told Moran that he had “heard” that some
employees were trying to organize. He added that, “I hear that
one of them is Dewey.” (Tr. 111.) I agree with counsel for the
General Counsel’s contention that these statements mirror those
found to violate the Act in Sam’s Club, 342 NLRB 620 (2004).
In that case, a supervisor was found to have created an impres-
sion of surveillance when he told an employee that he had
heard he was circulating a petition about wages. The Board
held that such a statement “leads reasonably to the conclusion
that the Respondent has been monitoring [the employee’s] ac-
tivities.” 342 NLRB 620, 621. In drawing this conclusion, the
Board noted that the employee had not circulated the petition
openly and the supervisor did not reveal the manner in which
he had learned the information about the employee’s activities.
By the same token, Schantz had not openly engaged in organiz-
ing activities and Gilbert did not tell Moran how he had come
to learn about Schantz’ conduct. The fact that Gilbert chose to
tell Moran about another employee’s activities does not alter
the result. The reference to Gilbert’s awareness of Schantz’
protected activities conveyed a clear impression of improper
employer surveillance. I conclude that Gilbert’s statements
violated Section 8(a)(1) of the Act.
On June 30, Gilbert accosted Sayles and interrogated him
about the union meeting held on the previous day. Based on
the credible testimony, I conclude that Gilbert told Sayles that,
“he heard that I was one of the big-wigs of the meeting.” (Tr.
238.) Once again, this created an unlawful impression of sur-
veillance. As another administrative law judge put it in a case
affirmed by the Board,
[A supervisor’s] comment that he thought [an employee] was
one of the leaders of the Union activity was the type of com-
ment, the effect of which is to create the impression, in the
mind of an employee, that his employer had been engaged in
surveillance of its employee’s union organizing activities and,
therefore, said comment was violative of Section 8(a)(1) of
the Act.
Athens Disposal Co., 315 NLRB 87, 98 (1994). In this in-
stance, Gilbert’s interrogation of Sayles coupled with his de-
scription of what he had heard regarding the extent of Sayles’
involvement in the meeting created an identical impression of
surveillance in violation of the Act.
CONCLUSIONS OF LAW
1. By discharging its employees, Mike Shapley and Duane
Schantz, because they participated in protected union activities,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
2. By threatening, verbally harassing, and interrogating its
employees, and by creating an impression of surveillance of its
employees, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act.
3. By depriving its employee, Larry Moran, of the opportu-
nity to work an additional shiftdue to his participation in pro-
ceedings before the Board, the Respondent has engaged in an
unfair labor practice affecting commerce within the meaning of
Section 8(a)(1) and (4) of the Act.
4. The Respondent did not violate the Act in any other man-
ner alleged in the amended consolidated complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged its em-
ployees, Mike Shapley and Duane Schantz, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
The Respondent having discriminatorily denied its em-
ployee, Larry Moran, the opportunity to work an additional
shift on June 5, 2004, it must make him whole of any loss of
earnings and other benefits, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).54
I shall also recommend that the Respondent be ordered to
post an appropriate notice in the usual manner.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended55
ORDER
The Respondent, Bliss Clearing Niagara, Inc., of Hastings,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against Mike
Shapley, DuaneSchantz, or any other of its employees for sup-
porting, engaging in activities on behalf of, or seeking assis-
tance from the International Association of Machinists and
Aerospace Workers, AFL–CIO, or any other union.
(b) Depriving Larry Moran or any other of its employees of
work opportunitiesor otherwise discriminating against them for
engaging in protected activities, including the filing of unfair
labor practice charges or participation in proceedings before the
Board.
(c) Threatening, verbally harassing, interrogating, or creating
an impression of surveillance of its employees because those
employees participated in protected union activities or in pro-
ceedings before the Board.

54 I note that the Company already reimbursed Moran for 2 hours
pay for that shift by memorandum dated June 9, 2004. (GC Exh. 32.)
55 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD320
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Within 14 days from the date of this Order, offer Mike
Shapley and Duane Schantz 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 Mike Shapley, Duane Schantz, and Larry Moran
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges of Mike
Shapley and Duane Schantz and the unlawful deprivation of
work opportunity for Larry Moran, and within 3 days thereafter
notify the employees in writing that this has been done and that
the discharges and deprivation of work opportunity will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of back pay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Hastings, Michigan, copies of the attached notice
marked “Appendix.”56 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous 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 employ-
ees employed by the Respondent at any time since May 28,
2003.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

56 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.”
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
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge or otherwise discriminate against
Mike Shapley, Duane Schantz, or any of our employees for
supporting, engaging in activities on behalf of, or seeking assis-
tance from the International Association of Machinists and
Aerospace Workers, AFL–CIO, or any other union.
WE WILL NOT deprive Larry Moran or any of our employees
of work opportunities because of their participation in protected
activities, filing of unfair labor practice charges, or involvement
in proceedings before the Board.
WE WILL NOT threaten, verbally harass, or interrogate any of
our employees, or create an impression of surveillance among
our employees, because of their participation in protected union
activities or in proceedings before the Board.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed by Federal labor law.
WE WILL, within 14 days from the date of this Order, offer
Mike Shapley and Duane Schantz 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.
WE WILL make Mike Shapley and Duane Schantz whole of
any loss of earnings and other benefits resulting from their
discharges, less any net interim earnings, plus interest.
WE WILL make Larry Moran whole for any loss of earnings
and other benefits resulting from our decision to deprive him of
a work opportunity, less any net interim earnings, plus interest.
BLISS CLEARING NIAGARA, INC. 321
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharges of Mike
Shapley and Duane Schantz and the unlawful deprivation of
work opportunity for Larry Moran, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done and
that the discharges and deprivation of work opportunity will not
be used against them in any way.
BLISS CLEARING NIAGARA, INC.