Burndy, LLC

National Labor Relations Board - Board Decisions

Aug 17, 2016

364 NLRB No. 77 (N.L.R.B. 2016)

364 NLRB No. 77
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Burndy, LLC and Glass Molders, Pottery, Plastics &
Allied Workers Local 39B.
Burndy, LLC and IUE-CWA, Local 485. Cases 34–
CA–065746, 34–CA–078077 and 34–CA–079296
August 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On July 31, 2013, Administrative Law Judge Lauren
Esposito issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record1
in light of the exceptions and briefs2 and has decided to

1 On November 18, 2015, General Counsel Richard F. Griffin, Jr.,
issued a Notice of Ratification in this case. On that same date the Gen-
eral Counsel filed a copy of the Notice of Ratification with the Office
of the Executive Secretary along with a letter requesting that the Notice
of Ratification be placed in the case record. The Notice of Ratification
states, in relevant part:
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under section 3(d) of the Act.
* * * * *
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
On December 7, 2015, the Respondent filed an Opposition to Notice
of Ratification challenging the General Counsel’s request to have the
Notice of Ratification added to the case record. Procedurally, the Re-
spondent moves to strike the Notice of Ratification from the case rec-
ord, arguing that there is no authority in Administrative Procedures Act,
5 U.S.C. §556(e), or the Board’s Rules and Regulations for adding the
ratification to the record. In the alternative, the Respondent requests
that its opposition be made part of the case record.
Having duly considered the matter, pursuant to Section 102.48(b) of
the Board’s Rules and Regulations we grant the General Counsel’s
request that the November 18, 2015 Notice of Ratification be made part
of the case record, and we grant the Respondent’s alternative request
that its opposition be made part of the case record as well.
2 The Respondent argues that the authority of the General Counsel
and Regional Director to investigate and prosecute this case lapsed
during the period when the Board lacked a valid quorum. We reject
that argument for the reasons stated in Bloomingdale’s, Inc., 363 NLRB
No. 172, slip op. at 2 fn. 4 (2016) (General Counsel’s authority derives
from the Act, not from power delegated by the Board), and Pallet Cos.,
a subsidiary of IFCO Systems, N.A., Inc., 361 NLRB No. 33 (2014)
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order as modified.4

(Agency staff engaged in prosecution of unfair labor practices are di-
rectly accountable to General Counsel).
The Respondent also argues that the investigation and prosecution of
these cases is invalid because former Acting General Counsel Lafe
Solomon was not properly appointed under Federal Vacancies Reform
Act (FVRA), 5 U.S.C. §§ 3345 et seq. For the reasons stated in The
Boeing Company, 364 NLRB No. 24, slip op. at 1 fn. 1 (2016), we find
that Solomon was validly directed by the President to serve as Acting
General Counsel. See also Hooks v. Kitsap Tenant Support Services,
Inc., 816 F.3d 550, 556–557 (9th Cir. 2016); SW General, Inc. v.
NLRB, 796 F.3d 67, 73 (D.C. Cir. 2015), cert. granted , 136 S.Ct. 2489
(2016) (mem.).
We acknowledge that the decisions in Kitsap and S.W. General also
held that Solomon lost his authority as Acting General Counsel on
January 5, 2011, when the President nominated him to be General
Counsel. Kitsap, 816 F.3d at 558; SW General, 796 F.3d at 78. Alt-
hough that question is still in litigation, we find that General Counsel
Griffin’s ratification of the issuance and continued prosecution of the
complaint in this matter has rendered moot any argument that Solo-
mon’s alleged loss of authority after his nomination precludes further
litigation in this matter.
The Respondent challenges the merits of the General Counsel’s rati-
fication on the basis that (1) the FVRA violation is a non-harmless
error; (2) the FVRA violation is a structural error that cannot be cured
by de novo review; (3) the General Counsel’s ratification was perfunc-
tory, and the “invalidly-issued complaint” prejudiced the Respondent;
(4) neither the APA or the Board’s Rules vests the General Counsel
with authority to cure an invalidly issued complaint; and (5) ratification
so long after the issuance of the complaint and the hearing effectively
makes the ratification “fruit of the poisonous tree.” We reject these
arguments for the reasons set forth in American Baptist Homes of the
West d/b/a Piedmont Gardens, 364 NLRB No. 13, slip op. at 9 fn. 19
(2016).
3 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.
In the absence of exceptions, we affirm the judge’s findings that the
Respondent unlawfully maintained an overbroad public statements
policy and no-solicitation rule and her dismissal of allegations that the
Respondent unlawfully: (1) prohibited employees from discussing
terms and conditions of employment; (2) through Plant Manager Ed
Marczyszak, threatened employees with unspecified reprisals; (3)
through Director of Human Resources William Lochman, threatened to
“come down hard” on Charging Party Glass Molders, Pottery, Plastics,
and Allied Workers Local 38B; (4) engaged in surveillance; (5) refused
to allow Charging Party IUE-CWA, Local 485 to use the office photo-
copier and refused to contribute to the cost of printing the IUE contract
booklet; and (6) maintained a group assets protection policy and dress
code.
4 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy and modify the
recommended Order and substitute a new notice to reflect this remedial
change. We shall also modify the recommended Order and notice to
conform to our decision in Durham School Services, L.P., 360 NLRB
No. 85 (2014).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Burndy,
LLC, Bethel, Connecticut, its officers, agents, succes-
sors, and assigns shall take the action set forth in the Or-
der as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
2(b) Compensate Robert Sears for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 34,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. August 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT apply a rule against talking during
worktime to prohibit conversations about the Internation-
al Union of Electronic, Electrical, Technical, Salaried
and Machine Workers, IUE/CWA (IUE) or the Glass
Molders, Pottery, Plastics & Allied Workers Internation-
al Union (GMP), when we permit employees to talk
about other nonwork-related matters.
WE WILL NOT threaten you with discipline in retalia-
tion for your support for or activities on behalf of the
GMP.
WE WILL NOT threaten you with unspecified reprisals
in retaliation for your support for or activities on behalf
of the GMP.
WE WILL NOT create the impression that your activities
on behalf of the GMP are under surveillance.
WE WILL NOT maintain a public statements policy
which prohibits employees from responding to media
inquiries without prior approval, and limits which em-
ployees can respond to media inquiries.
WE WILL NOT maintain a general rule violation which
prohibits solicitation for any unauthorized purpose on
company time.
WE WILL NOT harass you in retaliation for your activi-
ties on behalf of the IUE.
WE WILL NOT discipline you because you engage in ac-
tivities on behalf of the IUE or GMP.
WE WILL NOT suspend you because you engage in ac-
tivities on behalf of the IUE.
WE WILL NOT disparately apply our general rule 9 pro-
hibiting loafing or other abuse of time to you in retalia-
tion for your activities on behalf of the IUE or the GMP.
WE WILL NOT impose more onerous working condi-
tions on you or monitor you in retaliation for your activi-
ties on behalf of the IUE.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above
WE WILL make Robert Sears whole for any loss of
earnings and other benefits suffered as a result of his
suspension on May 29, 2012, less any net interim earn-
ings, plus interest.
WE WILL compensate Robert Sears for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 34, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate
calendar year.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the follow-
ing discipline issued to the named employees, and within
3 days thereafter, notify them in writing that this has
BURNDY, LLC 3
been done and that the discipline will not be used against
them in any way:
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
Robert Sears May 29, 2012 suspension
WE WILL rescind the public statements policy and gen-
eral rule violations 6 from the employee handbook.
WE WILL furnish all current employees with inserts or
amendments to the current employee handbook that (1)
advise employees that the public statements policy and
general rule violations 6 have been rescinded, or (2) pro-
vide the language of lawful rules; or publish and distrib-
ute revised employee handbooks that (1) do not contain
the public statements policy and general rule violations
6, or (2) provide the language of lawful rules.
BURNDY, LLC
The Board’s decision can be found at
www.nlrb.gov/case/34–CA–065746 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Thomas Quigley, Esq., for the Acting General Counsel.
Michael Soltis, Esq. and Joan C. Luu, Esq. (Jackson Lewis,
LLP), of Stamford, Connecticut, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based upon a
charge in Case 34–CA–065746, filed on September 29, 2011,
and amended on November 3, 2011, and December 16, 2011,
by Glass Molders, Pottery, Plastics & Allied Workers Local
39B (the GMP), upon a charge in Case 34–CA–079296, filed
on April 20, 2012, and amended on June 6, 2012, and July 30,
2012, by the GMP, and upon a charge in Case 34–CA–078077,
filed on April 3, 2012, and amended on May 30, 2012, June 8,
2012, and July 30, 2012, by IUE-CWA, Local 485 (the IUE),
an order consolidating cases, consolidated amended complaint,
and notice of hearing issued on July 31, 2012. The consolidat-
ed amended complaint (the complaint) alleges that Burndy,
LLC (Burndy or Respondent), violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act) by harassing
union stewards, disparately enforcing a rule prohibiting loafing,
imposing more onerous working conditions, and issuing written
counselings, verbal, and written warnings, and a suspension to
various employees in retaliation for their activities on behalf of
the GMP and the IUE. The complaint further alleges that
Burndy violated Section 8(a)(1) and (5) of the Act by prohibit-
ing the IUE from using a photocopier for copying grievances,
and refusing to pay the cost of printing its collective-bargaining
agreement with the IUE. Finally, the complaint alleges that
Respondent maintained unlawful work rules regarding disclo-
sure of information, dress code, public communications, and
soliciting, and alleges that a number of Respondent’s managers
made statements to employees or otherwise engaged in conduct
violating Section 8(a)(1) of the Act. Respondent filed an an-
swer denying the complaint’s material allegations.
This case was tried before me on November 6, 7, and 8,
2012, and on January 22, 23, and 24, 2013, in Hartford, Con-
necticut. During the hearing, counsel for the Acting General
Counsel (the General Counsel) amended the complaint to add
allegations regarding statements to employees which violated
Section 8(a)(1). The General Counsel also withdrew allega-
tions that Respondent violated Section 8(a)(1) and (5) by failing
to provide the GMP with requested information, or by an un-
reasonably delay in doing so, and by imposing financial charg-
es on the GMP for providing the information requested.
FINDINGS OF FACT
I. JURISDICTION
Respondent operates a sand foundry in Bethel, Connecticut,
where it manufactures cast electrical connectors comprised of
various metals, utilizing the sand molding process, for use in
the generation and transmission of electricity. Respondent
admits and I find that at all material times it has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Respondent admits and I find that
at all material times the GMP and the IUE have been labor
organizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent’s Bethel facility is approximately 75,000 square
feet, with roughly equal portions of that space appropriated to
the foundry, various machining areas, and the warehouse and
office. In order to manufacture its electrical connectors, Re-
spondent’s employees make patterns which are used to prepare
molds. Molten metal is then poured into the molds to make the
cast connectors. Respondent employs 75 to 80 employees at
the Bethel facility. Approximately 28 of those employees work
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in Respondent’s foundry, including the pattern shop, the found-
ry finishing area, the core room, and areas containing machines
such as the Wheelabrator, and are represented by the GMP.
About 35 employees work in the warehouse, assembly, machin-
ing, tooling, and maintenance areas, and are represented by the
IUE.
The standard work hours at Respondent’s facility are 7 a.m.
to 3:30 p.m. Overtime work on weekdays is scheduled prior to
7 a.m. The GMP-represented employees have a 32-minute
unpaid lunch break, a 12-minute morning break, and a 10-
minute afternoon break. The IUE-represented employees re-
ceive a 30-minute unpaid lunchbreak and two 10-minute
breaks, one in the morning and one in the afternoon. The break
and lunch times for the two bargaining units are staggered, such
that the GMP morning break takes place from 8:48 to 9 a.m.,
and the IUE morning break takes place from 9 to 9:10 a.m. The
IUE lunch break takes place from 12 to 12:30 p.m., while the
GMP lunchbreak is from 12:30 to 1:02 p.m. The IUE afternoon
break is from 2 to 2:10 p.m., and the GMP afternoon break is
from 2:10 to 2:20 p.m. Break and lunch periods are signaled by
bells or buzzers which sound when they begin and end.
Ed Marczyszak became the manager of the Bethel plant in
March 2008, and has overall responsibility for all aspects of the
plant’s operations. Marczyszak reports to Vice President of
Operations Jerry Heckman, whose office is located in Manches-
ter, New Hampshire. Joseph Arnson has been Respondent’s
foundry supervisor for 8 years. He supervises the GMP-
represented employees in the foundry department, and reports
to Production Manager Keith Swanhall (Swanhall reports to
Marczyszak). Brian Butler is the engineering supervisor, and is
responsible for the three pattern shop employees in the GMP—
Michael Cavaluzzi, Michael Vaast, and Dan Domeracki—as
well as several engineers. Butler reports to Arnson. Mary
Rovello is the human resources manager responsible for the
Bethel facility, and reports to William Lochman, Burndy’s
director of human resources. Lochman’s office is in New
Hampshire, but Lochman is in close contact with Rovello, and
serves as Respondent’s chief spokesperson during negotiations
with the Unions. Lochman reports to Andrea Frohning, the
vice president of human resources for Hubbell, which pur-
chased Respondent in 2009. Respondent admitted in its answer
and I find that at all material times Marczyszak, Arnson, Butler,
Rovello, and Lochman were supervisors within the meaning of
Section 2(11) of the Act, and agents acting on Respondent’s
behalf. Marczyszak, Arnson, Butler, Rovello, and Lochman
testified at the hearing.
The complaint’s allegations pertain primarily to employees
in Respondent’s pattern shop, a lead person, and the material
handler, who are represented by the GMP, and to a mainte-
nance technician or mechanic, who is represented by the IUE.
Respondent’s pattern shop is located near its management of-
fices at the front of the facility, near the cafeteria and a locker
room which contains a bathroom. The employees in the pattern
shop, supervised by Butler, make patterns for the sand molds
into which molten metal will ultimately be poured to make the
finished part ordered by the customer. The pattern makers also
repair broken patterns. There are literally thousands of patterns
stored throughout the facility. Each of the three pattern mak-
ers—Michael Vaast, Daniel Domeracki, and Michael
Cavaluzzi—has their own workbench with a stool in the pattern
shop, where they make and repair patterns for use in the pro-
duction process. Unlike other areas of the facility, the noise
level in the pattern shop is low and there is no need to wear ear
protection.
Thomas Norton is the pattern coordinator. Norton has over-
all responsibility for the condition of the patterns, and if a pat-
tern is broken he brings it to the pattern shop and explains to
the pattern makers what needs to be done. Norton fills out a
card, in effect a bill for the pattern makers’ performing the
necessary repairs, which accompanies the pattern. When the
pattern has been repaired, Norton retrieves it from the pattern
shop, and provides it to the machinists who will be making a
mold based on the pattern. Norton also prepares a schedule
regarding the metals which will need to be melted in order to
begin preparing the finished part. Norton’s work requires that
he move throughout the entire facility. Norton is supervised by
Arnson.
Robert Hing has been Respondent’s material handler for the
past 6 to 8 years, and is responsible for moving various materi-
als around the facility, sometimes using a forklift. Based upon
the schedule prepared by Norton, Hing moves metals and other
materials to the areas necessary in order to complete a particu-
lar stage in the production process. In addition, Hing removes a
bucket of scrap from the pattern area approximately once a
month, and performs other tasks as requested, such as moving
boxes. Hing’s work requires that he move throughout the entire
facility. Hing is also supervised by Arnson.
Robert Sears has been employed by Respondent as a mainte-
nance technician or mechanic for 24 years. He works from 4
a.m. to 3:30 p.m. from Monday to Friday, and also works on
Saturdays. Sears works out of a maintenance department,
where the mechanics’ tools and equipment are located, but
performs work all over the facility, depending upon the specific
machines that need repairs. Sears estimated that he spends only
2 hours out of each 11-hour day in the maintenance department,
because most of his work is performed at machines elsewhere
in the facility. He is supervised by Andy Foote. It was general-
ly undisputed that Sears is a talented mechanic.
B. Collective-Bargaining Agreements and
Union Leadership
Respondent has had collective-bargaining relationships with
both the GMP and the IUE for a number of years, and its last
negotiations with both Unions took place in 2011. Respond-
ent’s most recent collective-bargaining agreement with the
GMP is effective by its terms from February 28, 2011, to Feb-
ruary 27, 2015, and its most recent contract with the IUE is
effective by its terms from January 23, 2011, to January 24,
2014. Both collective-bargaining agreements have grievance
and arbitration provisions, and management-rights clauses. The
IUE contract also has a complete agreement provision, or a
“zipper clause.” Finally, the IUE contract also has a provision
at article 27(A) stating that “No member of the Union shall
carry on union activities during working hours on the premises
of the Employer.”
BURNDY, LLC 5
Both Unions have officials employed by Respondent, and are
also sometimes represented by business agents employed by the
GMP and the IUE. Hector Sanchez was the GMP’s Interna-
tional representative, employed by the Union, until March
2012, when Matt McCardy assumed that position. During the
period material to the complaint’s allegations, Thomas Norton,
Respondent’s pattern coordinator, was president of the GMP.
Norton began his employment with Respondent in December
2010, and became president of the GMP in May 2011. Prior to
Norton’s becoming president, Jose Valentin had been president
of the GMP for a number of years. Robert Hing has been the
GMP’s chief steward for 2 years and was a steward for 3 years
prior to that. Hing files grievances and attends step 2 and 3
grievance meetings on behalf of the Union. Michael Vaast, a
pattern maker, became recording secretary for the GMP in May
2011; while Vaast takes notes during meetings and prepares
grievance forms, he is not a member of the GMP’s negotiating
team and does not participate in grievance meetings. Daniel
Domeracki, a pattern maker, became the GMP’s treasurer in
May 2011, and also does not participate in negotiations or
grievance meetings. Radames Velez, a lead person, had previ-
ously been chief steward for the GMP. Michael Cavaluzzi was
a steward for the GMP until his resignation in September 2012.
Norton, Hing, Vaast, Domeracki, and Velez testified for the
General Counsel at the hearing.
Robert Sears has been a steward for the IUE for approxi-
mately 20 years. Herman Barnes is an IUE committee person,
whom Respondent also recognizes as a steward. Until Decem-
ber 2011, Henry Agramonte was the IUE’s chief steward.
Humberto Leone is a business agent employed by the IUE.
Sears testified for the General Counsel at the hearing.
C. Respondent’s Work Rules and Practices Regarding
Talking During Worktime
Norton, Vaast, Domeracki, Velez, and Sears all testified that
employees discuss nonwork topics such as sports, politics, and
the weather amongst themselves during worktime. The em-
ployees also testified that managers sometimes joined these
conversations, and that it was common for both employees and
managers to exchange pleasantries and chat for a few minutes
after entering a particular area of the facility with the employ-
ees working there. For example, Norton testified that he dis-
cusses hunting and fishing with Arnson four to five times per
week. Norton testified that he had also seen employees with
adjoining workstations arguing during worktime. Velez testi-
fied that employees stop to talk to one another and to supervi-
sors regarding sports and weekend activities during worktime,
pausing in their work while doing so. Vaast also testified that it
was not unusual for Butler, Arnson, and even Marczyszak to
spend a few minutes discussing sports or the weather when they
visited the pattern shop, and that he did not continue to work
during these conversations.1 Vaast testified that Cavaluzzi and
Domeracki also spoke about nonwork topics on worktime in a
similar manner. Arnson and Butler generally corroborated the

1 Velez testified that a conversation which lasted “a minute or two”
was allowed during worktime, and Vaast testified that in his experience
conversations of 5 minutes were acceptable.
pattern shop employees’ testimony that they participated in
brief discussions of nonwork-related topics on worktime. But-
ler testified that he enjoyed a good relationship with the pattern
shop employees, whom he considered to be hard workers, as a
result.2
Marczyszak testified that employees are generally permitted
to talk to one another during worktime regarding nonwork-
related matters, so long as they are working. As Marczyszak
put it, employees “can talk all day as long as they can perform
their task, and their mission adequately and they’re not stop-
ping.” However, Marczyszak also testified that he typically
exchanged brief pleasantries with employees on the shop floor,
and indicated that brief conversations involving nonwork-
related matters were generally acceptable, even if the employ-
ees did not physically work throughout (Tr. 797–798).
Since at least 2008, Respondent has maintained a list of gen-
eral rule violations which include the following violation as
rule 9: “Loafing or other abuse of time during assigned work
hours.” However, Norton, Vaast, Domeracki, and Velez all
testified that they had never heard of any such rule prohibiting
loafing. Marczyszak defined the difference between permissi-
bly exchanging pleasantries and loafing as “taking more than
just a few minutes” to talk without returning to work.3 Rovello
testified that “probably sometime in 2010” she began to cite
general rule 9 in disciplinary notices, and refer to various types
of conduct, such as smoking, as “loafing.” Rovello testified
that she began this practice because when Cavaluzzi was issued
numerous disciplines for smoking, Hing, as GMP chief stew-
ard, took the position that smoking inside the facility should be
treated as a different offense for progressive disciplinary pur-
poses than smoking outside.4 Under the progressive discipline
applicable to employees in both bargaining units, the first of-
fense results in counseling, the second in a verbal warning, the
third in a written warning, the fourth in a 3-day suspension, and
the fifth in discharge. Rovello contended that she began citing
general rule 9 so that all incidents involving an employee’s
failure to work during worktime would be considered the same
offense for progressive disciplinary purposes. Lochman testi-
fied that he directed Rovello to cite general rule 9 for all of-
fenses involving not working during worktime “once things got
a little bit more confrontational, where we saw the increase in
grievances” on the part of the Unions.
D. Changes in Plant Management and GMP Leadership,
Events of 2011
The evidence establishes that during the past 5 years, chang-
es in Respondent’s management personnel and in union leader-

2 Sears also testified that in his experience the employees had always
been permitted to speak to one another about nonwork-related matters
for a few minutes at work, and had never been disciplined as a result.
3 Respondent introduced into evidence what it described as disci-
pline issued to bargaining unit employees for loafing or otherwise
violating general rule 9 during the period January 1, 2008, to the pre-
sent.
4 Discipline for issues other than attendance expires a year after the
last discipline for the particular offense was issued; discipline for at-
tendance issues expires at the end of the calendar year in which the
discipline was issued.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ship have resulted in a substantially altered collective-
bargaining relationship. Marczyszak, who began as Respond-
ent’s plant manager in March 2008, proved to be more aggres-
sive and rigorous in his approach to the employees than the
previous plant manager. Marczyszak testified that when he
began as plant manager he was unhappy with what he consid-
ered to be a lack of work ethic among the employees in the IUE
bargaining unit, particularly Sears, the other maintenance em-
ployees, and an IUE machinist. Marczyszak testified that dur-
ing his first year or so as plant manager, he discovered Sears
engaged in nonwork activities during worktime on several oc-
casions, such as smoking (both inside and outside the facility),
fixing the tire on another employee’s car, and having a pastry
with the other maintenance employees. Marczyszak testified
that he also removed a refrigerator and microwave from the
maintenance area, as well as a printer being used for IUE busi-
ness. During Marczyszak’s first year as plant manager, the IUE
filed unfair labor practice charges alleging that Steward Ray
Dalton was discharged, and Sears was disciplined, in retaliation
for their union activities. The Regional Director, Region 34,
apparently issued a complaint against Respondent containing
such allegations, which was settled by the parties. In addition,
in November 2008, Dalton posted on the IUE bulletin board a
notice proclaiming the 10th of that month “Red Shirt Day,” and
asking employees to wear a red shirt if they were dissatisfied
with “the way that this Company is being run and the direction
that it is headed.” Marczyszak testified that a number of em-
ployees belonging to both Unions wore red shirts at the desig-
nated time. Lochman testified that in 2010 the bargaining unit
employees had forwarded a petition complaining about
Marczyszak to Andrea Frohning at Respondent’s headquarters
in New Hampshire. Finally, at some point after Marczyszak
became plant manager he discovered that “Fuck you Ed” was
written on each of the eight hoppers in the sand tunnel below
the foundry.
By all accounts, when Norton was elected president of the
GMP in June 2011, the relationship between the parties became
even more contentious.5 Marczyszak testified that Norton was
a more aggressive union representative than his predecessor
Valentin had been, and that the parties had been able to resolve
issues more amicably prior to Norton’s election. Marczyszak
also testified that once Norton became president, GMP officers
appeared to spend more time in grievance preparation, some-
times during worktime. Marczyszak testified that during a
conversation with Arnson regarding this issue, he told Arnson,
“[W]henever you see those union guys getting together and
they’re not working you write them up,” and “tell them that I
said so.” Arnson confirmed that sometime between Norton’s
election and May 2012, he had been specifically directed by

5 On February 25, 2011, prior to Norton’s becoming president, Re-
spondent and the GMP entered into an agreement for a successor col-
lective-bargaining agreement, which contained more specific employee
requirements for calling out sick and provided for penalties if an em-
ployee committed to overtime and then failed to work the scheduled
hours. Marczyszak testified that these provisions were intended to
ameliorate the problems involving absences and general “lack of work
ethic.”
Marczyszak to look out for employees gathered together and
engaged in conversation.
During the summer of 2011, cutoff operator Francisco
Taveras was disciplined for poor performance, in particular for
failing to make the applicable incentive rate for his position.
As a result, on July 6, 2011, Norton submitted an information
request asking that Respondent provide copies of all cutoff
operator timesheets in order to investigate a grievance based on
the discipline imposed.6 Norton testified that on July 5, 2011,
the day before he submitted the information request, in the
office he shared with Foundry Supervisor Arnson, Arnson told
him that if he was seen talking to Hing or any of the other
stewards, he would be written up because it would be assumed
that he was discussing union business on worktime. According
to Norton, Arnson told him that as GMP president he had “a big
target on [his] back,” and that Marczyszak would “come gun-
ning for [him].” Arnson corroborated Norton’s testimony,
stating that he informed Norton that if he was “stirring things
up” or intended to “start things,” “there’s going to be a target
on your back.”
Subsequently on July 18, 2011, Taveras was suspended for
failing to satisfy the incentive rates for the cutoff operator posi-
tion, and on July 25, 2011, Norton filed a grievance alleging
that the suspension violated the collective-bargaining agree-
ment. Later that day, when Norton returned from lunch to his
office, Arnson told him that he was late.7 Arnson said that
Marczyszak had directed him to tell Norton that Norton was
late returning from lunch, but that Marczyszak was giving him
a “bye” or a pass on the matter. Norton testified that about a
half hour later, during his afternoon breaktime, he went to
Marczyszak’s office to give him a copy of an unfair labor prac-
tice charge. After he did so, he disputed Marczyszak’s claim,
conveyed to him by Arnson, that he had returned from lunch
late, saying that he was back before the bell rang. Norton then
compared Marczyszak’s watch to his own phone, stating that
Marczyszak’s watch was the slower of the two.8 Marczyszak
then told Norton that if he was seen talking to Hing or any of
the other union officers in the shop, it would be assumed that
they were discussing union business, and they would be written
up. Norton stated that when he was on company time he was
there to work, and left. Marczyszak basically corroborated
Norton’s account of this conversation, but denied telling Norton
that he would assume that any discussions between union offic-
ers involved union business, and a writeup would ensue.

6 The parties continued to address this information request for
months afterwards. It was ultimately the subject of allegations with-
drawn by the General Counsel at the hearing. Although Norton testi-
fied that he did not believe that Valentin had ever submitted an infor-
mation request to Respondent, he testified that GMP Business Agent
Hector Sanchez had done so.
7 Norton testified that he observed Marczyszak watching him while
he ate lunch outside the facility. Marczyszak testified that he observed
Norton remaining outside to smoke a cigarette after the buzzer signal-
ing the end of lunch had rung.
8 Marczyszak testified that because the facility’s buzzers, and not in-
dividual watches or cell phones, determine the end of lunch and
breaktimes any difference between the time displayed by his watch and
Norton’s cell phone was irrelevant.
BURNDY, LLC 7
Norton and Hing both testified that during September and
October 2011, Arnson continued to tell them that if they were
seen talking to other union officers or coworkers on worktime
they would be written up based on the assumption that union
business was being discussed. Norton testified that in Septem-
ber and October 2011, Arnson repeatedly told him that if he or
Hing were discovered talking to any of the other pattern shop
employees9 they would be written up, “assuming that they were
talking union business.” Hing and Norton stated that on Octo-
ber 13, 2011, Arnson approached them as they were talking
right before the lunchbreak, and told them, “If you guys are
talking union business, I’m going to write you up.”10 Hing
testified that Arnson said that he had been told to write the
employees up if they were talking about union business.11 Nor-
ton stated that although he could not recall the exact date,
Arnson told him that if he saw Norton talking with Hing or any
of the other stewards, they would be written up on the assump-
tion that they were discussing union business. Hing also testi-
fied that after Norton became president, Arnson began inter-
rupting his conversations with Norton, asking them what was
going on and stating, “I hope you’re not talking about Union
business.” According to Hing, when he responded that he and
Norton were discussing work, Arnson said, “You know what
Ed would do if he seen you talking,” or discussing union busi-
ness.
Arnson testified that sometime during the year after Norton
was elected GMP president, Marczyszak had directed him to
give the employees a “heads up” that if they were not working,
management would “assume you’re doing union business.”
Arnson testified that he thereafter informed Norton, Hing, and
other employees, “Ed told me if I catch you that you’ll be writ-
ten up,” when he saw them talking to one another on the shop
floor. Arnson admitted that while he never wrote Norton up, he
“always went up and said” that according to Marczyszak’s
instructions he was to assume that they were involved in union
business if they were talking together on worktime, and to issue
discipline. Arnson testified that although he typically saw Nor-
ton or Hing with a union contract or papers approximately three
times each year, he never told them that they were not to con-
duct union business on worktime until the fall of 2011.
Arnson testified that after an initial 2-week period when he
admonished Norton and Hing repeatedly in this manner, “we
had a discussion in the office of—not to say that, not to use
those words anymore.” Instead, Arnson was apparently in-

9 At the time, all of the pattern shop employees—Domeracki,
Cavaluzzi, and Vaast—were GMP officers.
10 Norton testified that he and Hing needed to discuss a number of
work-related issues. Primarily, Hing needs to review Norton’s paper-
work to see how much metal to retrieve to fill the kettles once melted.
Norton testified that because the next day’s production schedule is
susceptible to change, Hing consults with him several times a day re-
garding this information. Norton informs Hing how many furnaces he
needs to light, and with what specific metals. Hing must also occasion-
ally retrieve scrap metal and bring materials to the pattern shop. It is
undisputed that Norton must visit the pattern shop and interact with the
pattern makers regularly as part of his pattern coordinator duties.
11 Norton testified that he and Hing were talking about going to
lunch at Burger King at the time, whereas Hing testified that they were
discussing work.
structed to ask the employees “What are you doing?” or “Why
are you bothering him while he’s working?”12 However, ac-
cording to Norton, Arnson continued to approach him when he
was talking to other employees, and ask him what they were
talking about, what they were working on, and what Norton
was doing in the area. In addition, Hing testified that beginning
in the fall of 2011, Arnson began directing him to take another
route to the bathroom, and stop going through the pattern shop.
Arnson testified that he did so on several occasions, so that
Hing would not be “tempted to stop” and talk to one of the
pattern shop employees, even though Arnson admitted that he
did not know whether, in the event that Hing did converse with
one of the pattern shop employees, they were “talking shop.”
Norton and Hing testified that Butler, the engineering super-
visor directly responsible for the pattern shop, also admonished
them and the other pattern shop employees against speaking to
one another in a manner similar to Arnson. Norton testified
that in September or October 2011, Butler told him “almost
daily” that if he caught Norton or Hing talking to any of the
pattern shop employees, he would assume that they were dis-
cussing union business, and write them up. Norton testified
that he told Butler that he had to speak to the pattern makers
every day in order to do his job. Hing also testified that some
time after Norton became president he was talking to Cavaluzzi
when Butler approached them. Butler asked Hing and
Cavaluzzi what was going on, and said, “I hope you’re not
talking about union business.” Hing testified that in the fall of
2011 and continuing into 2012, Butler interrupted his conversa-
tions with Norton and the pattern makers in the same manner as
Arnson, asking them what was going on.
Butler testified that he was informed at a meeting with
Marczyszak and Rovello that he needed to be on the lookout for
employees abusing time. Butler testified that as a result, when
he observed Hing and the pattern makers together, he told them
that they were supposed to be engaged in work-related activi-
ties. Butler testified that he used the term “union activity” in
the context of these conversations, but could not recall a specif-
ic example. Butler testified that in 2009 he had disciplined
Cavaluzzi for doing union business on worktime. Finally, But-
ler stated that he had last asked Norton what he was doing in
the pattern shop in early January 2013, even though he admitted
that Norton “has typically always given me good reasons to be
in the Pattern Shop.”
E. Events of January 2012
In December 2011, a GMP-represented molder named Evan
Cessa broke a pattern plate that he had been specially trained to
work on, so that the pattern had to be remade. Domeracki re-
ported the issue to Butler, who informed Marczyszak.
Marczyszak then called Cessa into the pattern shop and, in
Marczyszak’s words, “chewed him out,” telling him that he
could be fired for damaging equipment, and emphasizing the
cost to the Company for making the pattern. Marczyszak raised

12 It is not clear from his testimony whether Arnson was referring to
the presentation entitled “‘Work Time is for Work’ Guidelines,”given
by Rovello and Marczyszak in May 2012. Marczyszak did not testify
regarding any other attempt to clarify with other managers the treat-
ment of employee conversations and activities during worktime.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his voice at Cessa during this interaction, and Domeracki, who
was present in the pattern shop at the time, testified that he had
never seen Marczyszak angrier.
On January 3, 2012, Norton, on behalf of the GMP, and Hen-
ry Agramonte, then the IUE’s chief steward, sent a letter to
Rodd Ruland, Andrea Frohning, Lochman, Rovello, and
Swanhall protesting what they termed a “hostile work environ-
ment.” The letter stated that the employees at the Bethel facili-
ty believed that they were “being harassed, intimidated and
threatened” by Marczyszak “on a daily basis, for no good rea-
son,” and asked upper management to intervene. The letter
further asked that Cessa and all other employees receive an
apology for Marczyszak’s “harassment and intimidation” dur-
ing the previous month, and suggested that Marczyszak “be
sent for anger management and a psychiatrist for the way he
treats his employees and supervisors.” Finally, the letter stated
that the Unions were “documenting all retaliatory actions” on
Marczyszak’s part. The letter contained an attachment signed
by approximately 49 employees.13
Finally, on January 31, 2012, the Regional Director, Region
34, issued a complaint and notice of hearing against Respond-
ent in Case 34–CA–065746. This initial complaint alleged that
Respondent had unlawfully refused to provide information to
the GMP or unreasonably delayed in responding to its infor-
mation requests, unilaterally imposed financial charges for
satisfying information requests, threatened employees with
discipline and unspecified reprisals, conducted surveillance and
created the impression of surveillance, prohibited employees
from discussing the Union and their working conditions, and
harassed union stewards. This complaint was served on Re-
spondent the same day.
F. Discipline Issued to Sears and the GMP Officers in
February 201214
1. The February 3 incident involving Sears and
ensuing discipline
Sears testified that on the morning of February 3, he began
work at 4 a.m., disassembling a press and bringing the parts to
the machine shop and the storage area. After completing these
tasks, at about 8 a.m., Sears needed to use the bathroom. On
the way to the main bathroom, located in the locker room, he
saw Cavaluzzi in the pattern shop working at his bench, and
stopped to say hello. Cavaluzzi asked whether he would be
paid for his time at an upcoming GMP arbitration hearing, and
Sears said that Ray Dalton had been denied pay for his time
attending an IUE arbitration. Sears testified that he was leaning

13 In addition, on January 4, 2012, the GMP filed a grievance regard-
ing the manner in which Marczyszak confronted Cessa regarding the
broken pattern plate. Marczyszak testified that during a step 3 meeting
on February 29, 2012, the parties agreed to meet with everyone in-
volved and discuss the incident in order to explain their positions and,
as Marczyszak testified, “make amends.” Although the conciliatory
meeting never took place, Cessa was not disciplined regarding this
incident. In addition, Respondent agreed that in the future a GMP
representative would be present when a bargaining unit member was
reprimanded by management.
14 All subsequent dates are in 2012, unless otherwise indicated.
on a tall chair in the pattern shop during this exchange,15 which
lasted for about a minute or two. While Sears was talking to
Cavaluzzi, Marczyszak approached them, and asked what Sears
was working on in the pattern shop. Sears testified that he told
Marczyszak that he was working on going to the bathroom, and
walked away in that direction.
Marczyszak testified that at around 8:30 a.m. on the morning
of February 3, he and Swanhall were on their way to a scrap
review meeting in the quality control conference room. As they
entered the pattern shop area, Marczyszak stopped to put on
safety equipment, and saw Sears on the stool next to
Cavaluzzi’s workbench, talking to Cavaluzzi. Marczyszak
testified that as he walked along the corridor toward the quality
control conference room he observed Sears and Cavaluzzi talk-
ing. Therefore, instead of going to the conference room he
proceeded until he reached the end of the aisle along the pattern
shop, 3 to 4 minutes later. At that point, Sears and Cavaluzzi
were still talking, so Marczyszak approached them and asked
Sears what he was working on in the pattern shop. Sears re-
sponded that he was working, and when Marczyszak asked him
on what, Sears responded that he was working on going to the
bathroom. Cavaluzzi had a pattern on his bench and a tool in
his hand at the time.
Marczyszak then consulted with Rovello to determine what
level of discipline was appropriate for Sears given the progres-
sive disciplinary system, and directed Foote to prepare the ac-
tual writeup based upon his (Marczyszak’s) observations.
Sears testified that later on February 3, he was called into
Foote’s office, and given a counseling by Foote for violating
general rule 9, which prohibits “Loafing or other abuse of time
during assigned working hours.” Foote told Sears at the time
that he did not agree with the counseling, but had been directed
to issue it. Sears said that he had never heard of such a thing.
He told Foote that the employees talk to one another all the
time, and that he had not done anything wrong, only said good
morning to Cavaluzzi.16 Cavaluzzi was not disciplined regard-
ing this incident.
The IUE filed a grievance regarding the February 3 counsel-
ing issued to Sears, and a step 2 grievance meeting was held on
March 1 with Rovello, Swanhall, Sears, and Barnes. Sears
testified that Rovello read the February 3 counseling, and said
that Swanhall had seen Sears sitting down after Sears had visit-
ed the bathroom, which confirmed Marczyszak’s conclusion
that Sears was “loafing.” Sears testified that he told Rovello
that as a mechanic, he not only performs physical repair work,
but also needs to think about how to repair broken machinery.
According to Sears, he tried to analogize to Rovello’s work by
stating that Rovello was not working only when physically
typing words, but also when mentally composing text. Accord-
ing to Sears, Rovello became upset, and stated that Sears had
initially claimed to Marczyszak that he was working in the
pattern shop, as opposed to going to the bathroom. Sears then
became frustrated, and after explaining that he had never

15 Sears testified that he experiences pain in his left leg while walk-
ing and standing due to a problem with his spine which requires sur-
gery.
16 Foote did not testify at the hearing.
BURNDY, LLC 9
claimed to be working, said, “How many fucking times do I
have to tell you that’s not what happened.” Sears testified that
he had previously used vulgar language during grievance meet-
ings.
Rovello testified that the step 2 meeting began with Sears
denying that he had been sitting down while talking to
Cavaluzzi, and stating that he hadn’t spoken to Marczyszak.
Rovello testified that Sears then asked her, “What do you do all
day?” According to Rovello, she responded that she was not at
the step 2 meeting to discuss her own work, and Sears said that
she sat at her desk. Rovello reiterated that her own activities
were not at issue, and Sears said that Rovello was at her type-
writer all day long, and “I want to know what you fuckin’ do all
day.” Rovello testified that at that point she told Sears that his
behavior was inappropriate, and ended the meeting. According
to Rovello, Sears had never sworn at her in that manner before.
On March 7, Rovello sent Sears and Barnes a response deny-
ing the IUE’s grievance regarding Sears’ February 3 counsel-
ing. In her response, Rovello stated as follows:
Humberto Leon, your IUE Local 485 President, ended our
negotiations in February 2011 with a speech on mutual re-
spect. During the step #2 grievance Robert Sears steward be-
came abusive and stated to me “Right now I’m asking you
what you are f—ing doing.” The Company does not toler-
ance [sic] or accept abusive behavior during our grievance
meetings. We respect the Union and expect respect in return.
Further inappropriate behavior will result in discipline accord-
ing to the Company’s rules.
(GC Exh. 40.)
Subsequently there was a step 3 meeting regarding the Feb-
ruary 3 counseling, attended by Marczyszak, Rovello,
Swanhall, Leone, Sears, and Barnes. Rovello testified that
Leone argued that Sears had been a good worker for 24 years,
and had just needed to sit down and rest at the time he was
talking to Cavaluzzi. Marczyszak and Sears discussed the inci-
dent again, and Leone said that everyone needed to go to the
bathroom. Marczyszak countered that there was a bathroom
right next to Sears’ workstation, and sitting in the pattern shop
was different from going to the bathroom. Ultimately Re-
spondent denied the grievance, which was never moved to arbi-
tration by the IUE.
2. The February 8 incident involving the GMP officers
and ensuing discipline
On February 10 and 13, Rovello issued written counselings
to Norton, Domeracki, Cavaluzzi, and Vaast for “Loafing or
other abuse of time during assigned working hours.” These
counselings were based on an incident which took place in the
pattern shop on February 8.
Rovello testified that on February 7, Hector Sanchez, the
GMP’s International representative, called and told her that he
would be coming to visit the facility the next day with Area
Vice President Don Seal. Sanchez told Rovello that he wanted
to meet with the GMP officers and introduce Seal to the GMP
members at the shop. They arranged for Sanchez and Seal to
visit the shop during the employees’ lunch period, from 12:30
to 1 p.m. Norton, however, testified that the GMP officers
expected Sanchez and Seal to arrive at 3:30 p.m.
Rovello testified that Sanchez and Seal arrived at about
12:05 p.m., and chatted with her in the foyer of the building.
After about 15 minutes, Sanchez and Seal asked Rovello to let
the GMP officers know that they were in the plant, so that they
could begin the meeting immediately when the GMP lunch-
break started at 12:30 p.m. Rovello testified that she went to
the pattern coordinator area, but Norton was not there, and she
was unable to locate Hing. She therefore went to the pattern
shop to find Cavaluzzi. Rovello testified that when she entered
the pattern shop, she saw Norton, Cavaluzzi, Domeracki, and
Vaast standing around Cavaluzzi’s work area talking. Accord-
ing to Rovello, as she approached Cavaluzzi’s bench she saw
that Cavaluzzi had a drawer open and the GMP union contract
booklet, a small book with a blue cover, in front of him.
Rovello testified that she asked the group what they were do-
ing, and Cavaluzzi put the book in the drawer and closed it,
saying, “I’m sorry.” Norton had a folder that he closed, and
Vaast and Domeracki left Cavaluzzi’s bench. Rovello told the
group that Sanchez and Seal were in the facility, and Norton
then opened his folder and attempted to hand Rovello some-
thing. Rovello told Norton, “Not right now.” Rovello testified
that she did not know how long the group had been together
before she approached them, but there was no pattern in the
area at the time.17 Rovello testified that she returned to the
foyer and told Sanchez and Seal that the GMP officers were not
working.
Norton, Vaast, and Domeracki testified that right before the
12:30 p.m. lunchbreak on February 8, Norton had brought a
broken pattern to the pattern shop to be repaired. Norton and
Vaast testified that they were standing around Cavaluzzi’s
bench with Cavaluzzi, discussing how to repair the pattern,
which was on Cavaluzzi’s bench, and who was going to work
on it.18 Domeracki testified that he was at his own bench work-
ing on another job at the time, but stated that there was a job on
Cavaluzzi’s bench. Norton testified that they had been discuss-
ing the pattern for about 4 minutes, when Rovello approached
him from behind. Norton, Vaast, and Domeracki testified that
Rovello asked them what they were doing. Norton said that
they were just breaking up and began walking away, when
Rovello said that Sanchez and Seal were waiting in the lobby.
Norton told Rovello that he had grievances that had not yet
been signed, and that he wanted to see her later in the day. The
bell then rang for lunch, and the GMP officers went to meet
with Sanchez and Seal. Norton testified that at the time he was
carrying paperwork for the pattern repair in a manila folder.19
On February 10, Rovello issued a counseling to Norton for
“Loafing or abuse of time during assigned working hours.”
The counseling was issued in Arnson’s office, with Rovello,

17 Rovello testified that she was not familiar with every pattern in the
shop.
18 Norton and Vaast testified that Norton typically brings a broken
pattern to the pattern makers to discuss it with them before preparing
the card which records the work necessary for the repair.
19 Arnson confirmed that when Norton brings a broken pattern to the
pattern shop, he also carries paperwork identifying the broken pattern
or plate and the work to be done. Norton testified that he also keeps
union documents such as grievances and other nonwork-related items
such as birthday and other greeting cards in this manila folder.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arnson, Hing, and Norton present. Rovello began by describ-
ing the discipline to Norton, and handing him a copy of the
counseling. Norton and Hing testified that Rovello told him
that he was engaged in union business at the time that she ap-
proached him, and Norton said that she was wrong. According
to Norton and Hing, Norton told Rovello that she was issuing
the discipline to him in retaliation for the unfair labor practice
charges that he had filed against Respondent, and Rovello de-
nied doing so. Norton stated that he was not loafing, but had
brought a pattern to the pattern shop. Norton then told Rovello,
that she had fabricated the entire incident, referred to it as
“bullshit,” and crumpled up the counseling and threw it on the
floor.20 Norton then left Arnson’s office in order to calm him-
self, and Rovello sent Hing after him. When they returned,
Norton and Hing testified that Norton apologized to Rovello,
telling her that she “got his blood pressure up.” Norton testi-
fied that as Rovello left the meeting she was smiling, and he
told her, “[Y]ou got what you wanted.” Norton denied telling
Rovello that he was going to get even with her.
Rovello also testified that as she was reading the counseling,
Norton took it out of her hand, said, “This is bullshit,” and
crumpled it before leaving the room. According to Rovello,
when Norton returned he told her that the discipline wasn’t
right, and Hing said that Rovello needed to “give [Norton] a
break.” Norton told Rovello, “[T]his is not the way I work.
This is not the type of person I am.” Rovello confirmed that
Norton told her, “You got my blood pressure up.” According
to Rovello, Norton then said, “I’m not going to stand for this.
I’ll get even.” He then left the room again, and Hing signed the
counseling at Rovello’s instruction. According to Rovello,
during this meeting Norton and Hing did not contend that the
employees had been working on a pattern at the time that she
approached them. Arnson prepared a statement describing this
meeting which also states that Norton told Rovello, “[Y]ou
keep smiling Mary we’ll get even.”21
Vaast, Domeracki, and Cavaluzzi were issued similar
counselings by Rovello on February 13. Rovello, Butler, and
Hing were also present at this meeting. Vaast and Domeracki
testified that Rovello told the employees that she thought they
were having a union meeting, and Cavaluzzi said that they were
not, that they were talking about a job. Domeracki also testi-
fied that Hing told Rovello that the employees should not be
written up, but Rovello insisted that they were doing union
business. Rovello testified that Cavaluzzi said, “This isn’t

20 Norton testified that he also told Rovello that he had never been
written up for the February 2 incident mentioned in Rovello’s February
10 counseling. Rovello testified that she did not discipline Norton or
Hing for this incident.
21 The following week, there was a disciplinary meeting regarding
Norton’s use of vulgarity during the February 10 meeting with Rovello
and Arnson. This meeting was attended by Marczyszak, Swanhall,
Butler, Norton, and Hing. Marczyszak told Norton that he had threat-
ened Rovello during the February 10 meeting by telling her that he
intended to get even with her, and Norton responded that he had only
said to Rovello, “[Y]ou got what you wanted.” With respect to the
vulgarity, Norton admitted using the term “bullshit.” This was appar-
ently the end of the matter, and Norton was not disciplined regarding
any remarks he may have made to Rovello.
fair,” but did not claim at this meeting that the employees were
discussing a job.
Pursuant to the collective-bargaining agreement’s grievance
and arbitration provisions, the GMP filed a written grievance
regarding the counselings issued to Norton, Vaast, Domeracki,
and Cavaluzzi within 5 days of February 10. In its grievance,
the GMP contended that Norton and the pattern makers were
discussing the repair of a pattern plate when Rovello ap-
proached them, and not conducting union business. Within the
next 2 weeks a step 2 meeting was held with Rovello, Butler,
Cavaluzzi, and Hing. Hing testified that Vaast and Domeracki
were also present during this meeting. Hing stated that Rovello
told the employees that she saw them talking when she ap-
proached them in the pattern shop on February 8, and assumed
that they were doing union business. Hing testified that he
protested that the employees were all in their work areas, and
Rovello countered that one had the union book open on his
desk. Domeracki said that he was working, not talking, at the
time, and Rovello said that he was probably the only one who
was working. According to Hing, Cavaluzzi said that he was
standing at his work desk with the drawer open. Rovello testi-
fied that at this meeting Cavaluzzi called her “delusional,” and
told her, “There’s one of you, there’s four of us.” Butler also
testified that Cavaluzzi made these statements whereas, Hing
testified that he did not. According to Butler, at this meeting
Rovello also stated that she did not believe the employees’
claim that they were working on a pattern at the time. Rovello
refused to rescind the counselings, and the meeting ended.
Rovello testified that she later called Lochman, because she
was upset at having been called delusional.
On March 30, Norton wrote to Respondent to move the
grievance to step 3 of the grievance procedure. Subsequently, a
step 3 meeting was held with Hector Sanchez, Norton, Hing,
and Cavaluzzi attending for the GMP, and Marczyszak,
Swanhall, and Rovello attending for Respondent. Rovello testi-
fied that at this meeting Hing stated that on February 8, the
disciplined employees were “getting ready for the meeting,” but
Sanchez and others told him that because he was not present at
the time he should not discuss it. Hing testified that the meet-
ing focused on Norton and his conduct when presented with the
counseling, although Norton also contended that he was dis-
cussing or working on a pattern on February 8. Rovello and
Hing testified that Respondent proposed removing the four
counselings in exchange for the GMP’s withdrawing the charg-
es underlying Region 34’s complaint, but the Union refused to
do so. Rovello contended in her testimony that after the step 3
meeting, Sanchez told her that the GMP officials “stretch the
truth a lot,” and may have been referring to a pattern they were
working on earlier on the morning of February 8. Norton testi-
fied that prior to this meeting the GMP had requested infor-
mation regarding previous discipline for loafing, and Rovello
responded that the Company had only begun to refer to inci-
dents involving employees’ failure to work during worktime as
“loafing” at that point. At the time of the hearing, the GMP
grievance regarding the discipline issued to Norton, Vaast,
Domeracki, and Cavaluzzi based upon the February 8 incident
was still unresolved.
BURNDY, LLC 11
G. The March 2 Meeting with Lochman
In March, Lochman visited the Burndy facility on two occa-
sions for labor-management meetings, in order to discuss the
overall relationships between Respondent and the Unions. The
meeting with the GMP took place on March 2 in the facility’s
conference room, from approximately 10 a.m. to 2 p.m.
Lochman, Marczyszak, Swanhall, and Rovello were present for
Respondent, and GMP Vice President Donald Seal, Sanchez,
Norton, Hing, and Cavaluzzi were present for the GMP. Nor-
ton, Hing, Lochman, Marczyszak, and Rovello testified at the
hearing regarding this meeting.
Hing testified that Seal and Lochman stated that the meeting
had been arranged because of the large number of pending
grievances, and the generally contentious state of the relation-
ship between Respondent and the GMP. Norton testified that
Lochman said that Norton himself appeared to be the biggest
problem at Burndy, and that the GMP leadership—Norton,
Vaast, and Hing—were “troublemakers.” According to Norton
and Hing, Lochman said that the new GMP officers had created
a big problem by filing a large number of grievances, which
had not occurred before Norton became president. Norton
responded that he did not create the problems in the plant, and
that the major difficulty was Marczyszak, who was interfering
with the employees’ work. Norton continued that the GMP’s
problems with Marczyszak had begun before he was elected
GMP president, and that Valentin had in fact resigned as presi-
dent after Marczyszak had threatened him. Hing testified that
he told Lochman that Norton had a better idea of what was
going on in the plant than Valentin, and was more vigilant in
terms of investigating and enforcing the contract. The parties
also discussed the January incident where Marczyszak berated
Cessa for breaking the pattern plate. Seal stated that both sides
had become polarized, and needed to find a way to move for-
ward out of their deadlock. Seal said that the Union realized
that its members had good jobs, compensation, and benefits,
and that if there was tension on the shop floor the parties need-
ed to figure out what was causing it, and consider to the per-
spectives of everyone involved.
Norton testified that Lochman echoed some of these senti-
ments, stating that Respondent and the GMP enjoyed a good
relationship, with very few grievances and no arbitrations.
Lochman stated that the GMP bargaining unit wages were 20 to
70 percent above market, with excellent benefits, and employee
turnover was consequently very low. Lochman also stated that
Marczyszak had not been disrespectful to the GMP, and ran an
excellent plant. As a result, Lochman said that Marczyszak’s
position would not be in jeopardy regardless of the Union’s
efforts. The GMP agreed to attempt to work with Respondent
to try to resolve the outstanding grievances, which would hope-
fully improve the relationship. Norton and Hing testified that
during the meeting, Lochman stated that if the GMP kept rais-
ing grievances, management was going to come down hard on
the Union. According to Norton, at the end of the meeting
everyone shook hands, and Seal later told him that it had gone
well, and everyone should start to work on moving in a more
positive direction. However, Seal also told Norton that the
Union was “not going to get anywhere” with Marczyszak.
Lochman testified that he arranged for the March 2 meeting
while talking to Seal about Respondent’s relationship with the
GMP at an arbitration which took place earlier in the year.
Lochman testified that the meeting began with Seal expressing
his concern over the change in the relationship between the
GMP and the Company during the past year. Seal stated that
Respondent provided very highly paid jobs22 which he did not
want to lose, and that he was concerned that at some point
Hubbell, Respondent’s new owner, would decide that the Beth-
el facility was not viable and close it. Norton then spoke, say-
ing that there was quite a bit of stress on the shop floor, and that
he wanted to see it reduced. Lochman testified that he then
stated that Respondent had had a very good relationship with
the GMP, with very few arbitrations and only six grievances
per year.23 However, “all of a sudden” 19 grievances had been
filed in 6 months, as well as multiple unfair labor practice
charges, so that the Company was now “getting it in the groin.”
As a result, Lochman stated that “under the new regime I saw
that it was really disintegrating,” with relationships that had
been developed through negotiations deteriorating. Lochman
stated that because Norton had only been with the Company for
18 months and had never attended negotiations, he was una-
ware of the background of compromise that Respondent and the
GMP had achieved over the years. Lochman asked whether
management had ever used profanity with the union representa-
tives, as they had with Marczyszak, and Hing said that they had
not. Lochman concluded that overall there had been a “major
change” as a result of the new GMP leadership. Lochman also
said that Hubbell did not have similar problems at their other
unionized facilities, including their GMP-represented facility in
Leeds, Alabama, and reiterated that there had been a major
increase in grievances since Norton became president.
Lochman stated that he wanted to develop a partnership be-
tween management and the union leadership, which had been
the case when Valentin was president, as opposed to a confron-
tational relationship. Lochman provided examples of Respond-
ent’s attempts to do so, such as agreeing to a 4-year collective-
bargaining agreement and permitting the GMP to negotiate its
contract after the IUE. Lochman also confirmed that the parties
discussed the petition engendered by the Cessa incident, and
stated that the Unions wanted the Company to get rid of
Marczyszak, which he said was “not going to happen.”
Lochman denied stating at the meeting that the Company in-
tended to come down on the GMP officers. Marczyszak and
Rovello also testified that Lochman never made such a state-
ment. Lochman testified that Seal later said that he felt that the
meeting had gone very well, and the parties had cleared the air.
Marcyszak and Rovello testified that they had a similar impres-
sion.24

22 Lochman also testified that he made this point during the meeting,
in the manner described by Norton.
23 Lochman made his remarks based on a prepared outline of topics
that he intended to cover, which also contains some notes of the ensu-
ing discussion.
24 Lochman had a similar meeting with the IUE on March 27, at-
tended by the same company representatives and by Leone, Agramonte,
Barnes, and Sears for the Union. At this meeting, Sears gave
Marczyszak a copy of an unfair labor practice charge alleging that his
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. The April 12 Discipline Issued to Sears and Hing
On April 12, Sears received a verbal warning and Hing re-
ceived counseling, based upon an interaction between them
earlier that day as Hing was driving a forklift in the area of the
old machine shop. Sears, Hing, and Butler testified regarding
this incident.
Sears testified that at approximately 7 a.m. on the morning of
April 12, he was retrieving his forklift from the old machine
shop area when he passed Hing, who was driving a forklift and
picking up a barrel of scrap in the old machine shop. Hing had
a copy of the GMP contract booklet on top of his clipboard on
the forklift. Sears testified that he said good morning to Hing,
and asked Hing if the GMP contract was on the page for be-
reavement pay. Sears was interested in looking at the con-
tract’s bereavement pay provision, because the day before Hing
had asked him about the availability of bereavement pay for the
death of a step relative, which the IUE contract did not provide
for. Sears asked Hing to borrow the GMP contract to take a
look, and pulled it off Hing’s clipboard. When he looked at the
contract, it was not open to the page for bereavement pay, so
Sears said, “[T]hat’s not the article,” and stuck it in his back
pocket as he walked toward his forklift. Hing told Sears that he
had to go, because people were waiting for him. Sears testified
that the air-compressor in the old machine shop was running at
the time, which creates a noise level of 85 decibels, so that any
extended conversation would have been impossible. According
to Sears, his entire encounter with Hing lasted for about a mi-
nute.
Hing testified that on April 12, Sears approached him as he
was using a forklift to bring material out of the pattern area.
Hing testified that Sears took his GMP contract booklet from
off of a clipboard he had on the forklift. At that point, Hing
stopped the forklift, and Sears proceeded to open the book.
According to Hing, Sears was talking but he did not pay atten-
tion. Hing said that he saw Butler walk by at the time. Sears
then put the book back on the clipboard, and Hing restarted the
forklift and left the area. Hing testified that the entire interac-
tion lasted “a moment.”
Butler testified that on the morning of April 12 he was on his
way to the pattern shop to collect information on completed
jobs when he saw Hing sitting in his forklift, and Sears leaning
against it with an open book in his hand, reading aloud. Butler
could not recall whether machinery was running in the area at
the time, but testified that he heard Sears say, “excused absenc-
es;” Hing was silent. Butler testified that he observed Sears
and Hing for “more than a minute,” and concluded that Hing
and Sears were not working. He therefore went to look for
their supervisors, instead of proceeding to the pattern shop.
Butler was unable to locate Arnson and Foote, so he reported
the incident to Marczyszak, who directed him to discipline
Sears and Hing. Butler consulted with Rovello, who informed
him that for “abuse of time” Sears was at the verbal warning
stage of progressive discipline. Foote also consulted with
Rovello regarding the counseling issued to Hing for this inci-
dent.

February 3 counseling, and Rovello’s March 7 threat to discipline him,
violated Sec. 8(a)(1) and (3) of the Act.
Sears testified that around lunchtime, he and Foote were
called to the machine shop supervisor’s office. Marczyszak
was in the office, and Barnes was called in. Marczyszak said
that he was giving Sears a verbal warning for loafing because
he was talking to Hing, and gave Foote a writeup to read.
Foote read it and told Sears that it was a surprise to him, be-
cause he knew nothing of the underlying incident. Marczyszak
told Sears that he had been abusing time, and Sears stated that
the writeup constituted harassment, because he had done noth-
ing wrong. Hing testified that Rovello later called him into the
conference room, with Norton also present. Rovello read the
discipline, a counseling, and gave a copy to Hing. Hing told
Rovello that he was not talking to Sears, but had been working
at the time.
A step 2 meeting regarding the discipline issued to Sears was
held with Sears and Barnes, and Rovello, Butler, and Foote.
Sears testified that Rovello said that he was being disciplined
for abuse of time, as Butler observed him discussing a contract
with Hing. Sears protested that Butler was wrong. According
to Sears, Butler said that he had seen Sears reading a specific
paragraph of the GMP contract regarding excused absences.
Sears said that Butler was mistaken. Rovello testified that
Sears stated that he was going “from Point A to Point B” in the
shop when he saw Hing, said hello, and pulled a book off of
Hing’s forklift. According to Rovello, she asked Sears what
book he was referring to, and Sears refused to tell her. Rovello
also testified that Sears denied speaking to Hing at this meeting.
Hing testified that at the step 2 meeting regarding his coun-
seling, he told Norton, Swanhall, and Rovello that he was
working when Sears walked by and picked up his GMP con-
tract book. At that point, Butler passed by as well. Swanhall
brought Butler into the meeting, and according to Hing, Butler
admitted that he had only seen Hing for “10 seconds,” and that
Hing didn’t speak. Rovello asked Hing what he and Sears were
talking about, and Hing contended that it was none of her busi-
ness. Rovello continued to pose the question to Hing, and and
Norton interrupted her, saying, “We ain’t in Russia.” At that
point, Rovello ended the meeting.
A step 3 meeting regarding the verbal warning issued to
Sears was held on May 25, attended by Sears, Barnes, and Leo-
ne, and by Marczyszak. Leone argued that the Company
should rescind the warning, because it seemed petty to him, an
attempt to push the Union “to the edge.” Marczyszak testified
that Sears said that he had asked Hing how he was doing and
took the book from Hing’s forklift, because he wanted to look
up something that Hing had asked him about earlier.
Marczyszak testified that Sears contended that the incident was
very brief, only a few seconds, and also claimed that he and
Hing were discussing the company handbook, and not a union
contract. Sears said that things had begun to deteriorate in
January 2012, and Marczyszak responded that Sears had been
issued numerous disciplines stretching back to 2008.25 Rovello
testified regarding this meeting as well, but stated that Sears did
not speak at all. Sears testified that at this meeting he never

25 Sears testified that he was referring to discipline for loafing when
he made this remark.
BURNDY, LLC 13
denied asking Hing whether he could see the GMP contract on
Hing’s forklift.
A step 3 meeting regarding Hing’s counseling was also con-
ducted. Marczyszak testified that at this meeting, Hing con-
tended that he was effectively forced by Sears to stop while he
was driving the forklift.
The grievances regarding the discipline issued to Sears and
Hing based on the April 12 incident are still pending.
I. The Counseling Issued to Radames Velez
Radames Velez has been employed by Respondent for 18
years, and is now a lead person. Velez works from 4 a.m. to 12
p.m. Monday and Tuesday, and from 4 a.m. to 3:30 p.m.
Wednesday, Thursday, and Friday. Velez has no specific as-
signed work area. He begins his shift by preparing machines
for production, and then informs the cutoff operators and grind-
ers as to what needs to be done as the shift progresses. Velez is
a member of the GMP bargaining unit, but has not been an
officer since he was lead steward from 1996 to 1999. Arnson is
his supervisor.
Velez testified that on April 12 he was going through the pat-
tern shop to go to the bathroom when he stopped to talk to
Cavaluzzi about the previous day’s baseball game. Velez testi-
fied that after speaking to Cavaluzzi for a couple of minutes, he
saw Rovello approaching them, and walked toward her. Ac-
cording to Velez, Rovello asked whether they were talking
about work, and Velez stated that they were discussing sports.
Rovello testified that she asked Velez what he was working on,
and Velez stated that he was not working, he was just having a
conversation. Rovello told Velez that he was not supposed to
be in the pattern shop,26 and Velez testified that he apologized
to be polite. Rovello told Velez that she was going to give him
a counseling, and walked away.
The next day, Marczyszak and Rovello issued a counseling
to Velez in Arnson’s office. Velez testified that Hing was pre-
sent also. Velez testified that he did not sign the counseling
because he didn’t believe that he was doing anything wrong by
talking to Cavaluzzi.27
J. The May 3 Written Warning Issued to Sears and
Respondent’s Refusal to Permit IUE Representatives to
use the Office Photocopier for Copying Grievances
Sears testified that on May 3, at approximately 8:40 a.m., he
was on his way to the drinking fountain next to the pattern stor-
age area,28 when he saw Norton passing by with a pattern to put
away. They said good morning, and Norton asked Sears if he
wanted to attend an upcoming meeting with an NLRB agent.
Sears asked when the meeting would occur, and said he might
not be able to make it if he was scheduled to work. According
to Sears and Norton, this entire interaction took a minute or
two. Marczyszak then approached Sears from behind, and
asked him what he was working on, and whether he had work

26 Rovello and Butler stated that Velez had no work-related reason to
be in the pattern shop.
27 Rovello testified that Cavaluzzi was not disciplined as a result of
this incident, because he appeared to be working at the time.
28 Norton testified that the water cooler is approximately 2 feet from
his workbench.
to do in the maintenance department.29 Sears said that he could
probably find some, and left.
Butler testified that he was going to a meeting in the quality
control conference room when he saw Sears standing in the
pattern prep area. Butler believed that Sears had no work-
related reason to be in that area, so when he arrived at the quali-
ty control conference room for his meeting, he told Marczyszak
that Sears was “hanging around the pattern storage area . . . not
working.” Marczyszak testified that he stepped into the hall-
way and saw through a window in the doorway that Sears was
standing next to Norton’s bench, talking. Marczyszak testified
that he observed Sears for “three or four minutes” before ap-
proaching him and asking him what he was working on and
whether he had any work to do.30 Sears said no, so Marczyszak
asked him whether he had work in the maintenance room.
Sears said that he had just come to get a drink of water, and
left.
Marczyszak testified that a few hours later in the office, he
saw Sears copying something on the office copier. Marczyszak
testified that he asked Rovello whether Sears was supposed to
be there, and she answered no. Marczyszak then approached
Sears and asked what he was doing, and Sears replied that he
was making a copy. Marczyszak told Sears he was not sup-
posed to be copying documents on worktime, and Sears said
that he always did so. Sears testified that since the beginning of
his employment he and the other IUE officers had used the
office copier to copy grievances and other union-related docu-
ments, on many occasions in front of Rovello’s predecessor,
Joan Marie Bresnahan. According to Sears, he also used the
office copier in December 2011 to copy medical records for
submission to human resources. Sears testified that he was
never before required to wait until lunch or breaktime to use the
copier.
Some time on May 3, Sears was issued a written warning for
“loafing or other abuse of time” by speaking with Norton in the
pattern area that day.31 The May 3 written warning also stated
that Marczyszak had observed Sears at the office copier on
May 2, engaged in nonwork-related activity during worktime.
A step 2 meeting regarding the discipline was conducted on
May 18, with Barnes, Sears, Swanhall, and Rovello. Rovello
testified that Sears contended that he was only getting a drink
of water, and stated that the Company was trying to fire him.
According to Rovello, Sears said that he did not tell
Marczyszak that he was getting a drink of water when
Marczyszak confronted him in the pattern area. Sears testified
that Rovello stated that Barnes had already been written up for
using the officer copier, so that Sears should have known that
he was not permitted to use it. Sears said that he did not recall
that, and Rovello said that he must have amnesia. Sears re-

29 Norton testified that Marczyszak approached him and Sears im-
mediately after Sears greeted him. Norton testified that he could not
recall the specific statements made by Sears and Marczyszak.
30 Butler testified that Marczyszak observed Sears through the win-
dow for “a moment or two, or a minute or two” before leaving to ap-
proach Sears.
31 Marczyszak testified that Norton was not disciplined because he
appeared to be working, as there was a pattern on his desk at the time.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sponded that he would give Rovello a nickel for the piece of
paper he used, and she said that was insulting.
A step 3 meeting was also conducted with Marczyszak,
Swanhall, Rovello, Leone, Sears, and Barnes. Rovello testified
that during this meeting Leone stated that Sears had been em-
ployed for 24 years, was an excellent mechanic, and should not
be penalized for needing a drink of water. Marczyszak stated
that Sears could have gotten a drink of water outside the
maintenance office or inside the quality room. According to
Rovello, Sears did not speak during this meeting. The IUE
never filed a grievance regarding Respondent’s refusal to allow
Sears to use the copier for nonwork-related purposes.32
K. The May 29 Suspension Issued to Sears
Sears testified that on May 29, he arrived at work at 4 a.m.
After he repaired a press in the machine shop and the
Wheelabrator, Arnson asked him to look at the Morgan furnace.
After working on the furnace, Sears chained open the foundry
and maintenance doors and turned on a fan. He then went to
his locker area in the maintenance department, took off his
Burndy uniform shirt, and hung it up.33 Sears’ locker area is
separated from the rest of the maintenance department by a
curtain. He opened a can of Pepsi and sat down on a stool in
the locker area34 to rest for a minute before proceeding to his
next assignment, working on the no. 3 aluminum furnace. He
had been sitting for less than a minute when he heard the voices
of Marczyszak and Arnson. Marczyszak opened the curtain,
and Sears stood up. Marczyszak asked what time Sears had
arrived at work, what he had done, and what he was working
on. Sears explained what he had done that morning, and de-
scribed his next task. Marczyszak and Arnson then walked
away, Marczyszak saying to Arnson, “You’re my witness—you
saw him sitting there.” Sears testified that no one had ever
entered his locker area in the maintenance department in that
fashion, and that if he was needed he would typically be paged
over the telephone.
Marczyszak and Arnson also testified about this incident.
Marczyszak testified that he ran into Arnson on one of his
morning walk-throughs when Arnson called him over to look at
the automated sand controller. As they were just outside the
maintenance area, Marczyszak mentioned that he had seen
Murphy, another mechanic, earlier in the day, and asked
Arnson where Sears was.35 Arnson reported that Sears had
been working on the furnace a little while ago, and Marczyszak
suggested going to the maintenance room to try to locate him.
When they arrived at the locker room, Marcyzszak pulled back
the curtain and saw Sears sitting down with the soda, wearing a
white T-shirt, with “a shocked expression of his face.”
Marczyszak asked Sears when he started and what he had
worked on, and Sears responded, telling him that he had been

32 Marczyszak testified that although such a grievance would not be
timely, the Company “would consider” waiving its prerogative to chal-
lenge the arbitrability of such a grievance on timeliness grounds.
33 Sears was wearing a T-shirt under his uniform shirt.
34 Sears testified that he had purchased this stool a few days earlier,
and uses it all over the facility.
35 Arnson testified that Marczyszak was not looking for Sears in par-
ticular, but only suggested going through the maintenance room.
working on the furnace. Marczyszak testified that he asked
Sears what he was working on at that point, and Sears respond-
ed, “I’m working on getting a soda.” Marczyszak asked Sears,
“Shouldn’t you be working?” and Sears left. Marczyszak con-
firmed that Arnson had also seen Sears, and said, “You’re my
witness.”36 Marczyszak then met with Rovello to determine
what level of discipline was appropriate.
At the end of the workday, Sears was paged to the confer-
ence room, where Marczyszak and Swanhall issued him a writ-
ten suspension with Barnes present. Marczyszak read the sus-
pension, and Sears said it was ridiculous because he was just
getting a drink. Barnes also argued that it was hot at the time,
Sears had just worked on the furnace, and the employees should
be permitted to get a drink in such circumstances even if it was
not breaktime. Sears said that he had only taken a few sips
from the can of soda, and had not been sitting for a long period
of time. Marczyszak responded that, as he had told Sears be-
fore, worktime was for work, and because Sears was not on
break, he was abusing time. Marczyszak also told Sears that
Sears had not replied when asked what he was working on.
Sears was then suspended, and told not to return to work until
the following Monday.37
Rovello testified that she attended a step 2 meeting regarding
Sears’ suspension with Swanhall, Barnes, and Sears. Accord-
ing to Rovello, at this meeting Sears said that he was thirsty and
drinks soda, not water. Barnes said that Sears needed a drink,
because he began work at 4 a.m. and the regular break was not
until 9 a.m. Rovello said that the Company was willing to
make accommodations in such situations, but that Sears should
have gotten permission to take a break from Arnson. Rovello
also attended a step 3 meeting with Marczyszak, Swanhall,
Leone, Barnes, and Sears. At this meeting, Marczyszak offered
to pay Sears for Saturday in order to resolve the grievance, and
the Union declined. The Union has moved the grievance to
arbitration, and a hearing is being scheduled.
L. Evidence Pertaining to the Complaint’s Allegation
that Sears was Subjected to More Onerous
Working Conditions and Monitoring
Sears contended during his testimony that Marczyszak con-
tinued to follow him and question him regarding his activities
after he returned from his suspension. Sears testified that
Marczyszak frequently came to the maintenance department,
and that although he did not question Sears, there was no work-
related reason for Marczyszak to be there. Velez also testified
that he noticed Marczyszak repeatedly looking for Sears in the
maintenance department during the spring of 2012; although
Marczyszak could have spoken to Velez or another mainte-
nance employee if some problem needed to be addressed at that
time, he did not. Sears testified that on other occasions, typi-

36 Arnson generally corroborated Marczyszak’s account, but did not
testify that Sears told Marczyszak he was “working on getting a soda.”
Marczyszak testified that he assumed that “it had to be minutes that
[Sears] was in there sitting there,” because he and Arnson had not seen
Sears on their way to the maintenance room.
37 Sears testified that he missed 4 days of work—Wednesday,
Thursday, Friday, and 9 hours at time and a half on Saturday.
Marczyszak confirmed this testimony.
BURNDY, LLC 15
cally between 4 and 7 a.m., Marczyszak questioned him about
what he had been doing and what he was working on. Sears
also testified that he has observed Marczyszak standing behind
machines or pieces of equipment, watching him. Sears testified
that on one occasion when he was working on the aluminum
furnace, Marczyszak asked Velez where Sears was after having
walked by that particular furnace.38 On several other occasions,
Marczyszak entered and exited the boiler room immediately
after Sears did. Sears testified that Marczyszak does not ques-
tion other employees about what they are doing in the same
manner that Sears is questioned. Sears testified that around the
time that the NLRB issued its initial complaint “things calmed
down some,” but that Marczyszak had engaged in this behavior
during the week prior to Sears’ testimony on November 8.
Sears testified that, in his opinion, Marczyszak had been moni-
toring and harassing him consistently since 2009, but that prior
to February 3, Marczyszak did not ask him what he was doing
on a regular basis.
Marczyszak testified that he has followed the same daily
schedule of activities in the plant since April 2008.
Marczyszak testified that he typically arrives between 5:30 and
6 a.m., and has a practice of doing “walk-throughs” of the facil-
ity several times each day. The first of these walk-throughs
usually takes place a little after 6 a.m. During this walk-
through, Marczyszak verifies that employees scheduled to work
the morning overtime hours are actually present, ensures that
machinery is operating or arranges for repairs, and is on the
lookout for potential safety issues. Marczyszak testified that he
begins from his office, and proceeds to the machine shop,
where he checks on the chucker and the CNC machines, and
then to the lathes. Marczyszak then visits the foundry finishing
area, checks the condition of the backyard outside the facility,
and looks into the maintenance area. He then checks the
Hunter, an automated molding machine, and visits either the
pattern shop area or the furnaces, depending upon what work is
being performed. As he walks through the plant, Marczyszak
greets the various employees at work as he sees them, and asks
for explanations of their work or other information if necessary.
Marczyszak testified that he has encountered Sears during these
morning walk-throughs “somewhat frequently.” Marczyszak
testified that the entire process usually takes 10–15 minutes, but
can take longer if there are production problems or equipment
needing repairs.
Marczyszak testified that at approximately 8 a.m. each day
he conducts a scrap review meeting in the quality control con-
ference room, to discuss methods for eliminating unused mate-
rials. Afterwards, he returns to his office via the core area, to
check on the Hunter machine and the furnaces. Marczyszak
tries to do an afternoon walk-through between 1:30 and 2:30
p.m. each day, depending upon his schedule and other events in
the facility. Finally, Marczyszak performs a third walk-through
after 3:30 p.m., when production ceases for the day, to make
sure that all areas are clean and the doors are locked. Three

38 Sears testified that Marczyszak would not have been able to see
him when he walked by, given the position from which he was working
on the furnace.
days a week he and other managers review the work schedule
in the pattern shop area.
Marczyszak testified that during his walk-throughs he asks
Sears what he is doing if he cannot tell what Sears is working
on at a particular time. According to Marczyszak, sometimes
Sears responds with an explanation, and sometimes he does not.
Marczyszak generally denied following or monitoring Sears.
M. The Allegedly Unlawful Work Rules
The complaint alleges that four work rules, or provisions in
Respondent’s employee handbook, violate Section 8(a)(1) of
the Act. Although the IUE apparently contends that the em-
ployee handbook does not apply to its bargaining unit employ-
ees, Marczyszak testified that Respondent takes the position
that the handbook applies to employees in both bargaining
units. The evidence does not establish that any employees have
been disciplined for violating the allegedly unlawful work rules
or handbook provisions. The disputed provisions are as fol-
lows:
4. PROTECTING GROUP ASSETS
a) The Group recognizes that preserving, protecting and re-
sponsibly using company assets including intellectual proper-
ty is essential to remain competitive and to serve the interests
of its shareholders, therefore we must take all appropriate
measures to protect these assets and to respect third parties’
proprietary information rights.
b) The Group requires all to safeguard and not disclose any
knowledge, decision or any information about BURNDY
which may in any way prejudice the interests of BURNDY or
any confidential information to any party outside BURNDY,
unless such disclosure is necessary to enable BURNDY to
carry out its business properly and effectively and there is no
reason to believe or suspect the information will be missed or
improperly disseminated by the recipient; or where it is re-
quired by the law whereupon the Legal Department shall be
immediately notified prior to any disclosure where possible.
c) The confidentiality obligations of BURNDY’S employees
are further subject to specific provisions in their respective
employment contracts.
. . . .
DRESS CODE
BURNDY LLC generally allows business casual wear in all
of its US facilities. The Company maintains reasonable
standards for business attire during regular work hours, and
requires each employee to dress in a manner appropriate to
his/her job responsibilities. Employees are expected to use
good judgment, consider safe practices, and dress appropriate-
ly for thier job. For certain positions, the Company may re-
quire and provide special attire.
Employees should keep in mind that the Company regularly
hosts customers, suppliers and others who are visiting the
Company to decide whether or not to do business with
BURNDY. In such cases, more formal business attire may be
appropriate. The same consideration should be employed if
an employee is required to make external visits
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Company reserves the right to address an employee’s at-
tire, jewelry, or any aspect of grooming which the Company
believes to be unsafe, distracting, unsanitary, not promoting
customer good will or the subject of business disruption or
complaint.
Specific guidelines for each facility may be obtained from the
local Human Resources Representative.
. . . .
PUBLIC STATEMENTS
Due to the importance of communications with the news me-
dia, which includes newspapers, trade publications, radio and
television stations and any other public medium, inquiries are
to be referred to an handled only by or at the direction of the
Vice President of Human Resources for BURNDY LLC or
the Legal Department or both. This is to ensure that all in-
formation about the Company and its business and operations
provided to the media is accurate and consistent with the
Company’s policies. Marketing communications are the re-
sponsibility of the designated division of MarCom personnel.
. . . .
GENERAL RULE VIOLATIONS
6. Soliciting or collecting contributions for any purpose on
Company time, except when authorized to do so for Compa-
ny-sponsored programs (e.g. United Way).
N. Respondent’s Refusal to Pay the Cost of Printing
an IUE Contract Booklet
Sears, Lochman, Marczyszak, and Rovello testified regard-
ing the 2011 negotiations between the IUE and Respondent,
and subsequent discussions regarding whether Respondent
would share the cost of printing the IUE 2011–2014 collective-
bargaining agreement in booklet form. Sears testified that he
had been involved in approximately six of the most recent ne-
gotiations for successor IUE collective-bargaining agreements.
Sears testified that although the subject of which party would
bear the cost of printing up a contract booklet was never dis-
cussed during those negotiations, Respondent has paid for the
printing of the contract booklet. Sears testified that during the
negotiations for the 2011 agreement, the IUE never proposed
that Respondent print or pay for the printing of the contract
booklet.
Lochman, who acts as Respondent’s chief spokesperson dur-
ing negotiations, Marczyszak, and Rovello testified that during
the 2008 and 2011 negotiations with the GMP, the Company
eventually agreed to split the cost of printing the GMP contract
booklet with the Union. This agreement is reflected in Re-
spondent’s last, best, and final offer to the GMP during the
2011 negotiations. However, Lochman, Marczyszak, and
Rovello testified that in the 2011 IUE negotiations there was no
proposal by the Union for the Company to shoulder or contrib-
ute to the cost of printing the contract booklet. Lochman testi-
fied that the IUE’s attorney, David Cann, made a “take it or
leave it” final proposal toward the end of negotiations, which
the Company accepted. The IUE’s final proposal did not men-
tion anything about printing the contract booklet.
Rovello testified that at the 2008 negotiations between Re-
spondent and the IUE, which she attended, the IUE initially
proposed that the Company pay the full cost of printing the
collective-bargaining agreement in booklet form. Rovello testi-
fied that the parties eventually agreed that each would pay half
the cost of doing so.39
Following his March 2 meeting with the GMP representa-
tives to discuss their overall collective-bargaining relationship,
Lochman conducted a similar meeting with the IUE representa-
tives, which took place on March 27. Sears testified that during
the March 27 meeting he attempted to raise an issue involving
the still unsigned IUE contract. However, Lochman said that
he wanted to discuss that issue later in the meeting, and eventu-
ally left the meeting before it could be addressed. After the
parties finished discussing three outstanding grievances, Sears
handed Marczyszak the unfair labor practice charge alleging
that his February 3 discipline, and Rovello’s March 7 letter,
violated Section 8(a)(1) and (3) of the Act. This charge also
alleged that Respondent violated Section 8(a)(5) by refusing to
finalize the 2011–2014 contract. The next day, Respondent put
together exhibits necessary for the contract to be finalized, and
Agramonte, Barnes, and Sears signed it on behalf of the Union.
On April 11, Leone apparently visited Respondent’s facility
and signed the 2011–2014 IUE contract. Rovello testified that
during Leone’s visit he asked whether the Company would
contribute to the cost of printing a contract booklet. Rovello
testified that she responded that the Company was satisfied
with a regular paper copy and the subject had not been dis-
cussed during negotiations. As a result, the matter was closed.
Rovello reiterated this position in an email to Leon dated April
24, which also contended that the IUE’s attorney had stated that
the Union was satisfied with a regular paper copy of the con-
tract as well.
Sears testified that at the step 3 meeting on May 25 regarding
his April 12 discipline, Leone asked Rovello about printing the
IUE contract booklet. Leone asked the Company to pay for the
printing of the booklet, then offered to split the cost with the
Company. Rovello responded that the contract had been in
effect for 1-1/2 years, and Respondent did not intend to pay for
the printing of booklets at that point.40 Marczyszak also stated
that the Company would not print the IUE contract booklet.
According to Marczyszak and Rovello, Rovello told Leone that
the parties did not discuss the cost of printing the contract
booklet during negotiations, and that negotiations were now
closed. When Leone asked whether the Company would agree
at that point to pay for half the cost of printing the booklet,
Rovello reiterated that negotiations were closed. Leon then
asked Marczyszak for a yes or no answer, and Marczyszak said
that the Company was not willing to share the cost of printing
the contract booklet.41

39 It is not clear from Sears’ testimony whether he attended the 2008
negotiations.
40 The tentative agreement for the IUE 2011—2014 collective-
bargaining agreement had been signed on February 15, 2011.
41 Marczyszak testified that the IUE had not filed a grievance regard-
ing the Company’s refusal to share the costs of printing a contract
booklet, and that at this point a grievance would not be timely. How-
ever, Marczyszak stated that if the IUE filed a grievance regarding the
BURNDY, LLC 17
III. ANALYSIS AND CONCLUSION
A. Allegations Regarding Unlawful Statements,
Surveillance, and Harassment42
The complaint alleges that Respondent violated Section
8(a)(1) of the Act beginning in the summer of 2011, when
Marczyszak, Arnson, and Butler repeatedly prohibited the GMP
officers from discussing union matters on worktime in circum-
stances where conversation regarding other nonwork-related
topics was permissible, threatened them with discipline and
unspecified reprisals, surveilled the GMP officers and created
the impression that their activities were under surveillance,
prohibited them from discussing the terms and conditions of
their employment, and harassed them with incessant question-
ing regarding their interactions. The complaint further alleges
that Respondent violated Section 8(a)(1) when Lochman threat-
ened employees with unspecified reprisals on March 2.
I find that the evidence establishes that Marczyszak, Arnson,
and Butler unlawfully prohibited the GMP officers from dis-
cussing union matters during worktime in situations where
conversation regarding other nonwork-related topics was per-
mitted, threatened them with discipline in retaliation for their
union activities, and created the impression that their union
activity was under surveillance. The evidence further estab-
lishes that Arnson and Butler threatened employees with un-
specified reprisals, and that Respondent harassed the GMP
officers by its managers’ conduct. However, the evidence does
not establish that Respondent prohibited employees from dis-
cussing their terms and conditions of employment, or that
Marczyszak threatened employees with unspecified reprisals.
The evidence also does not establish that Lochman threatened
employees with unspecified reprisals during the March 2 meet-
ing. As a result, I have recommended that these allegations be
dismissed.
1. Statements attributed to Marczyszak, Arnson, and Butler
It is well settled that an employer may prohibit discussions
regarding union matters “during periods when the employees
are supposed to be actively working,” if the employees are also

matter, Respondent would waive its right to assert an argument that the
grievance was not arbitrable because it was not filed in a timely man-
ner.
42 Respondent contends that the National Labor Relations Board
lacked jurisdiction to investigate the charges in this matter, issue the
complaint, and prosecute the case, in that the Board lacks a proper
quorum pursuant to the opinion of the District of Columbia Circuit in
Noel Canning v. NLRB, 705 F.3d 490 (2013), holding that the Presi-
dent’s recess appointments of Board Members were invalid. The Board
has held that because this issue has not been definitively resolved given
the conflicting opinions of at least three other circuits, the Board “is
charged to fulfill its responsibilities under the Act.” See, e.g., Belgrove
Post Acute Care Center, 359 NLRB 633, 633 (2013), citing Evans v.
Stephens, 387 F.3d 1220 (11th Cir. 2004); U.S. v. Woodley, 751 F.2d
1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). In
addition, the Board held after the submission of posthearing briefs in
this matter that the authority of the General Counsel to investigate
unfair labor practice charges and prosecute complaints is derived from
the National Labor Relations Act itself, and not from “any power dele-
gated by the Board.” Bloomingdale’s, Inc., 359 NLRB 1015 (2013).
prohibited from discussing other subjects “not associated or
connected with the employees’ work tasks.” Scripps Memorial
Hospital Encinitas, 347 NLRB 52 (2006), quoting Jensen En-
terprises, 339 NLRB 877, 878 (2003); see also Sam’s Club, 349
NLRB 1007, 1009 (2007). However, if employees are permit-
ted to discuss other matters unrelated to work during worktime,
an employer violates Section 8(a)(1) by prohibiting similar
conversation regarding union-related issues. Sam’s Club, 349
NLRB at 1009; Scripps Memorial Hospital Encinitas, 347
NLRB at 52. Generally, in order to determine whether em-
ployer communications to employees violate Section 8(a)(1),
the Board applies an “objective standard,” evaluating “whether
the remark tends to interfere with the free exercise of employee
rights,” without considering “the motivation behind the remark
or its actual effect.” Scripps Memorial Hospital Encinitas, 347
NLRB at 52, quoting Miller Electric Pump & Plumbing, 334
NLRB 824 (2001).
The evidence here establishes that Marczyszak, Arnson, and
Butler effectively enforced a “no-talk” rule to preclude discus-
sions regarding union activities, even though employees were
permitted to discuss other nonwork-related matters on
worktime. I credit the testimony of Norton, Velez, Vaast,
Domeracki, and Sears that employees routinely discussed
nonwork matters on worktime, sometimes stopping their work
for a few minutes, without disciplinary repercussions, prior to
the summer of 2011.43 I further credit their testimony that they
interacted with supervisors, including Marczyszak, Arnson, and
Butler in this manner. Butler confirmed that he discussed
nonwork-related issues with Domeracki and Vaast during
worktime, and that they were sometimes not actively engaged
in work during these conversations. Butler further stated that
he has had brief conversations with employees regarding
nonwork-related issues in the hallway, or some other area when
they are not actively working, during worktime. Marczyszak
testified that he has brief nonwork-related conversations with
employees upon meeting them on the shop floor, and testified
that when such discussions were confined to “a few minutes”
they were not objectionable.44 Although Arnson testified that

43 The General Counsel argues that because Norton, Hing, Velez,
Vaast, Domeracki, and Sears are currently employed by Respondent,
their testimony may be considered particularly reliable, in that it is
potentially adverse to their own pecuniary interests. Covanta Bristol,
Inc., 356 NLRB 246, 253 (2010); Flexsteel Industries, 316 NLRB 745
(1995), affd. 83 F.3d 419 (5th Cir. 1996). While I am cognizant of this
general principle, I have also taken into account the union officer posi-
tions held by some of these employees, as well as demeanor and other
factors, in making credibility resolutions. I also note that Vaast and
Domeracki testified pursuant to a Subpoena issued by the General
Counsel.
44 Respondent argues that the managers’ nonwork-related conversa-
tions with employees are irrelevant to a determination as to whether
employees were in fact permitted to interrupt their work while discuss-
ing nonwork-related matters on worktime. However, the first of the
cases cited by Respondent to argue that an employer may enforce poli-
cies it has not itself followed involves a presumptively valid rule re-
garding the distribution of written materials prior to a representation
election. Hale Nani Rehabilitation, 326 NLRB 335, 336 (1998). The
various Board members found that its enforcement against employees
was not objectionable, in that it did not create an imbalance in the union
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when he saw employees talking he asked them why they were
“bothering” one another, it was apparent that he began using
this technique after Marczyszak modified his directive to
writeup “union guys” who did not appear to be working on the
assumption that they were engaged in union business, as dis-
cussed below.45
In addition, the documentary evidence submitted by Re-
spondent does not establish that prior to the fall of 2011 em-
ployees were consistently disciplined for talking to one another
during worktime without continuing to physically perform their
work. Respondent introduced into evidence what it described as
discipline issued to employees for “loafing” dating back to
February 2008 (R.S. Exh. 25). However, none of this discipline
appears to involve a situation where employees had a brief
conversation during worktime. Instead, the disciplined em-
ployees were, according to the documents, smoking inside or
outside the facility, having coffee or making purchases in the
cafeteria, reading a newspaper, or outside the plant for no ap-
parent reason. Although employee Howard Gombert was dis-
ciplined on August 6, 2010, for leaving his machine and con-
versing with other employees, the disciplinary notice indicates
that he spoke to a number of employees, visiting the ware-
house, the pattern area, and the machine shop, where he had
coffee. Similarly, although Christian Feliz was disciplined on
April 13, 2011, for talking to Jose Jimenez, it is apparent from
Arnson’s description of the incident that Feliz became belliger-
ent and interrupted Arnson’s subsequent conversation with
Hing. The objectionable conduct in these cases therefore en-
compassed more than a brief conversation with another em-
ployee. Finally, although Cavaluzzi and Hing were disciplined
on August 17, 2010, for “conducting Union business” in the
pattern shop during worktime, there is no specific description
of their conduct, and the discipline is therefore not probative as
to Respondent’s approach to nonwork-related employee con-
versations during worktime. As a result, the documentary evi-
dence does not tend to establish that, prior to the fall of 2011,
Respondent uniformly disciplined employees for discussing
nonwork-related issues amongst themselves or with supervisors
on worktime, even if they did not continue to actually work
throughout the conversation. Given the disciplinary records
and the testimony of the employees and managers described
previously, the evidence overall does not establish that, prior to
2011, Respondent prohibited all nonwork-related conversations
unless the employees involved continued to physically perform
work-related tasks.

and employer’s ability to communicate during the preelection period,
and the union had other means to communicate its message. Hale Nani
Rehabilitation, 326 NLRB at 336, 337. This case is therefore not rele-
vant. In the second case, the Board in fact found that the employer
violated Sec. 8(a)(1) by excluding nonemployee picketers from its
property. John Ascuaga’s Nugget, 298 NLRB 524, 533 (1990). Alt-
hough the Board’s Decision was reversed by the Ninth Circuit in this
respect, Sparks Nugget, Inc. v. NLRB, 968 F.2d 991, 998 (1992), the
Board Decision is controlling in this context.
45 Indeed, Arnson testified that although he saw Norton or Hing with
a union contract or what he believed to be union documents approxi-
mately three times per year, he never told them that they were not per-
mitted to engage in union activities on worktime until the fall of 2011.
The evidence further establishes that in the summer of 2011,
Marczyszak specifically instructed other managers to alter their
approach to employee discussions of nonwork-related issues
during worktime, in response to the increased activity and more
aggressive positions taken by the new GMP leadership.
Marczyszak admitted that after Norton was elected president of
the GMP in July 2011 the Union became more energetic and
forceful, and that resolving issues was more difficult.
Marczyszak also testified that the new GMP leadership, includ-
ing Norton, appeared to spend more time investigating griev-
ances and preparing for grievance meetings. Marczyszak ad-
mitted that as a result, he told Arnson, “[W]henever you see
those union guys getting together and they’re not working you
write them up,” and “tell them that I said so” (Tr. 765). Or, as
Arnson described it, Marczyszak told him to give the employ-
ees a “heads up” that if they were not working, “we’re going to
assume you’re doing union business,” and to vigilantly pursue
employees’ gathering and engaging in conversation (Tr. 1096).
I further find that Marczyszak gave a similar instruction to
Butler, who testified that Marczyszak directed him during a
meeting to look out for employees’ abuse of time. As dis-
cussed below, Butler testified that as a result of Marczyszak’s
directive, when he happened to see Hing and the pattern makers
together, he told them that they were supposed to be working.
Butler stated he used the phrase “union activity” during these
conversations. Thus, the evidence establishes that Respond-
ent’s other managers confronted employees who held union
office regarding their conversations based upon Marczyszak’s
instruction, which was ultimately engendered by the more ag-
gressive stance with respect to investigation and contract en-
forcement taken by Norton and the other officers of the GMP.
Turning to the specific statements at issue, I credit Norton’s
testimony that when he visited Marczyszak’s office on July 25,
2011, Marczyszak told him, after some discussion as to whether
Norton was late coming back from lunch, that if he was seen
talking to Hing or any of the other employee GMP officers, it
would be assumed that they were discussing union business,
and they would be written up. This was precisely what
Marczyszak had directed Arnson to do. Marczyszak’s testimo-
ny that he told Arnson, “[T]ell them I said so,” indicates that he
was not reticent about having this particular approach toward
the employees’ union activities attributed to him personally.
As a result, it is quite plausible that after Norton presented him
with an unfair labor practice charge (again evincing the GMP
leadership’s newly aggressive approach), he would confront
Norton directly with the warning that he had already instructed
his managers to give to the “union guys.” Marczyszak’s com-
ment to Norton thus constituted an attempt to disparately pro-
hibit employees from discussing union matters during worktime
in circumstances where discussion of other nonwork-related
topics was allowed, in violation of Section 8(a)(1). Dial One
Hoosier Heating & Air Conditioning Co., 351 NLRB 776 fn. 3,
787 (2007); Scripps Memorial Hospital Encinitas, 347 NLRB
at 52–53. In addition, Marczyszak’s statement threatened Nor-
ton with discipline in retaliation for union activity. See Wash-
ington Fruit & Produce Co., 343 NLRB 1215, 1252–1253
(2004) (supervisor’s statement to employees talking amongst
themselves that she “did not want them having any union meet-
BURNDY, LLC 19
ings” in the work area improperly assumed that union activities
were being discussed and unlawfully threatened employees
with discipline); Saginaw Control & Engineering, Inc., 339
NLRB 541, 558–559 (2003) (supervisor’s statements that he
had seen employee conversing about what he “assumed was
union business” and threats to transfer him or reduce his hours
as a result unlawful).
Marczyszak’s statement to Norton also created the impres-
sion that the union activities of Norton and the other GMP of-
ficers were under surveillance by Respondent. In order to de-
termine whether an employer has unlawfully created the im-
pression of surveillance, the Board considers whether, under
the relevant circumstances, reasonable employees would inter-
pret the statement at issue as conveying that their union activi-
ties were under scrutiny. Frontier Telephone of Rochester, 344
NLRB 1270, 1276 (2005), enfd. 181 Fed.Appx. 85 (2d Cir.
2006). Statements indicating an intent to monitor union activi-
ty in the future unlawfully create the impression of surveil-
lance. Golden Stevedoring Co., 335 NLRB 410, 416 (2001). I
find that Marczyszak’s warning that if he saw Norton speaking
to Hing or other employees a writeup would ensue based on the
assumption that they were engaged in union activity was un-
lawful this standard. Norton could reasonably conclude from
Marczyszak’s pronouncement that his interactions with other
employees would be subject to heightened managerial observa-
tion in the future, and would be presumed to involve the Union.
As a result, Marczyszak’s statement unlawfully created the
impression that Norton’s union activities were under surveil-
lance. See P.S.K. Supermarkets, 349 NLRB 34, 35 (2007)
(manager’s statement that she “can always see somebody and
who they’re talking with” created impression of surveillance);
Saginaw Control & Engineering, Inc., 339 NLRB at 558–559
(supervisor created the impression of surveillance by telling
employee that “since the election” he had seen the employee
speaking to other employees and “assumed” they were discuss-
ing “union business on company time”).
The evidence establishes that Arnson, pursuant to
Marczyszak’s instructions, violated Section 8(a)(1) in a similar
manner. Arnson admitted that he told Norton that as GMP
president he had “a big target on [his] back” if he intended to
“start things” or was “stirring things up” (Tr. 1093–1094). As a
result, I credit Norton’s testimony that on July 5, 2011, Arnson
told him that if he was seen talking to Hing or any of the other
union representatives, he would be written up based upon the
assumption that he was engaged in union activity, because
Marczyszak would “come gunning for” him. The evidence also
establishes that on multiple occasions in September and Octo-
ber 2011, Arnson told Norton and Hing that if they were seen
talking to one another or to the other pattern shop employees,
management would assume that “they were talking union busi-
ness,” and they would be written up.46 I credit Norton and
Hing’s testimony that, as Arnson also admitted, he repeatedly
told them that pursuant to Marczyszak’s directive he was to
assume that they were engaged in union activity if he saw them

46 I find any discrepancies between Norton’s affidavit and his testi-
mony, or between Norton’s testimony and that of Hing, immaterial in
light of Arnson’s admissions regarding these statements.
talking to one another or to other employees on worktime, and
write them up. By making these statements, Arnson prohibited
discussions of union matters during worktime when other
nonwork-related conversations were permitted, threatened em-
ployees with discipline, and created the impression of surveil-
lance.47
I further credit Hing’s testimony that Arnson interrupted his
conversations with Norton after Norton became GMP presi-
dent, asking them what was going on and telling them, “I hope
you’re not talking about Union business,” and “You know what
Ed would do if he seen you talking.” These remarks are fully
consistent with Arnson’s own description of his interactions
with Norton, Hing, and the pattern shop employees. I find that
they constitute threats of discipline and unspecified reprisals in
retaliation for Norton and Hing’s union activities, particularly
given the reference to “what Ed would do” and Arnson’s own
previous remarks.
In addition, I credit Norton and Hing’s testimony that
Arnson continued to interrupt them and ask them what was
going on, what they were doing, and why they were in a partic-
ular area of the facility, after he stopped explicitly referring to
union activity and potential discipline. Arnson admitted that he
approached the employees in this manner after being told “in
the office . . . not to say that, not to use those words anymore”
(Tr. 1099). Although managers are obviously entitled to ensure
that the work they are responsible for is being performed by the
employees they supervise, Arnson’s statements in this context
were merely an alternative iteration of his previous attempts to
prevent Norton, Hing, and other employees from discussing
union issues. Finally, I credit Hing’s testimony, again corrobo-
rated by Arnson, that Arnson admonished Hing to take a route
to the locker room bathroom that did not go through the pattern
shop, so that, in Arnson’s words, Hing would not be “tempted
to stop” and talk to the other GMP officers in the area (Tr.
1103–1104). I find that this constituted another attempt on
Arnson’s part to prevent the employee GMP officers from dis-
cussing union issues in circumstances where talk about other
nonwork-related matters was permissible. I therefore conclude
that these more subtle attempts to prevent discussion of union
matters on Arnson’s part likewise constituted disparate en-
forcement of a “no-talk” rule and created the impression of
surveillance of the employees’ union activities.

47 Toma Metals, 342 NLRB 787 (2004), cited by Respondent to ar-
gue that Arnson’s statement was not coercive because of his alleged
personal relationship with Norton, is inapposite. That case involved an
interrogation, not a threat or a statement creating the impression of
surveillance, and therefore required consideration of the relationship
between the supervisory questioner and the employee. Toma Metals,
342 NLRB at 788–789. In addition, the low-level supervisor was relat-
ed by marriage to the employee he questioned, and the two were per-
sonal friends. Toma Metals, 342 NLRB at 789. Here, Norton partici-
pated in certain sporting events organized by Arnson, but there is no
evidence of any family relationship or particular friendship. In Clinton
Electronics Corp., 332 NLRB 479, 479–480, 488–489 (2000), by con-
trast, the low-level supervisor was a “longstanding” friend of the em-
ployee she questioned, and the Board nevertheless found an unlawful
interrogation. Although the Seventh Circuit reversed the Board on the
issue, it is the Board Decision which has precedential import here.
NLRB v. Clinton Electronics Corp., 284 F.3d 731 (2002).
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that Butler made similar statements to Norton and
Hing, which violated Section 8(a)(1) of the Act in the same
manner. I credit Norton’s testimony that in the fall of 2011,
Butler repeatedly said that if he discovered Norton or Hing
talking to the pattern shop employees, he would assume that
they were engaged in union activity and write them up. I fur-
ther credit Hing’s testimony that Butler interrupted him and
Cavaluzzi (then a GMP steward), and admonished them against
talking about union business. I find that Butler was not a credi-
ble witness with respect to this issue, engaging in circumlocu-
tion even with Respondent’s counsel on direct examination. I
do not credit his testimony that he could not recall exactly how
he used the term “union activity” when telling Hing and the
pattern makers that they were supposed to confine their activi-
ties to work during worktime, and could not recall precisely
what he said. In fact, Butler’s admission that Norton had “al-
ways” given him “good reasons to be in the Pattern Shop”
when questioned (Tr. 1030), and the undisputed fact that Nor-
ton needs to interact with the pattern makers in order for the
work in that department to proceed, further establish that his
comments were motivated by a desire to prevent union activity.
In addition, I credit Hing’s testimony that Butler continued
to interrupt his conversations with Norton and the pattern mak-
ers by asking them what they were doing in the same manner as
did Arnson. As with Arnson, I find that this conduct of But-
ler’s continued, with more politesse, the managers’ previous
efforts to prevent the GMP officers from discussing union mat-
ters on worktime. Because the evidence establishes that Re-
spondent permitted conversation regarding other nonwork-
related topics on worktime as described above, Butler’s re-
marks and conduct constituted another unlawful disparate ap-
plication of a “no-talk” rule. Butler’s comments to Norton also
constituted a threat of discipline in retaliation for union activity,
and statements creating the impression of surveillance. I also
find, for the reasons discussed above, that Butler’s statement to
Hing, “I hope you’re not talking about union business,” created
the impression of surveillance and, in the context of Butler and
Arnson’s prior explicit threats of discipline, threatened Hing
with unspecified reprisals.
For all of the foregoing reasons, the evidence establishes that
Respondent violated Section 8(a)(1) of the Act when
Marczyszak, Arnson, and Butler: (i) prohibited employees
from discussing union matters during worktime in circumstanc-
es where discussion of other nonwork-related topics was per-
mitted; (ii) threatened employees with discipline in retaliation
for their union activities; and (iii) created the impression that
the employees’ union activities were under surveillance. The
evidence further establishes that Arnson and Butler threatened
employees with unspecified reprisals. The evidence does not
establish, however, that Marczyszak, Arnson, and Butler pro-
hibited employees from discussing their terms and conditions
of employment. Marczyszak, Arnson, and Butler’s statements
to Norton, Hing, and the pattern shop employees were focused
solely on “union business.” There is no evidence that these
employees were discussing terms and conditions of employ-
ment at any of the times that they were admonished by man-
agement during July, September, and October 2011, as alleged
in the complaint. I therefore decline on the pleadings and rec-
ord to make a finding that Respondent prohibited employees
from discussing terms and conditions of employment. As a
result, I shall recommend dismissal of paragraphs 9(e), 10(b),
and 11(a) of the complaint. I further find that the evidence does
not establish that Marczyszak threatened employees with un-
specified reprisals, as opposed to a writeup, and therefore rec-
ommend that paragraph 9(a) be dismissed as well.
2. Alleged surveillance and harassment by Marczyszak,
Arnson, and Butler
The evidence establishes that Marcyzszak, Arnson, and But-
ler’s repeated threats, statements creating the impression of
surveillance, and disparate application of a “no-talk” rule con-
stituted harassment which violated Section 8(a)(1) and (3) of
the Act. I find that their insistent chiding of Norton, Hing, and
the pattern shop employees regarding talking “union business”
when discussion of other topics on worktime was permitted
rose to the level of harassment. As discussed above, Arnson
and Butler continued this overall pattern of conduct, albeit
without specific references to union business or union activity,
in asking these employees what was going on, what they were
doing, or what they were talking about for a period of time after
their initial, explicit references to union activity. There is no
evidence that Respondent’s managers treated employees who
were not union officers in a similar manner; in fact, the evi-
dence establishes that brief nonwork-related conversations on
worktime were permitted. I therefore find that by doing so,
Respondent discriminatorily harassed the GMP officers, in
violation of Section 8(a)(1) and (3) of the Act. See Laser Tool,
Inc., 320 NLRB 105, 109–110 (1995).
I do not find, however, that Marczyszak, Arnson, and Butler
engaged in surveillance by repeatedly admonishing Norton,
Hing, and the pattern shop employees against discussing union
business on worktime. There is no evidence that, in the fall of
2011, Respondent’s managers altered their activities in order to
watch the employees more closely or stationed themselves in
specific areas to observe the employees for any length of time.
In particular, the evidence establishes that Marczyszak has
performed “walk-throughs” of the facility, sometimes accom-
panied by Arnson, at different points during the day in the same
fashion since the inception of his tenure as plant manager.
There is no evidence that Marczyszak, Arnson, or Butler
changed their routines in the fall of 2011 in order to observe
Norton, Hing, or the pattern shop employees more closely.
Compare New Era Cap Co., 336 NLRB 526, 533–534 (2001)
(supervisor altered conduct to stand close to employee who
supported union affiliation “several times a day” when he had
previously visited employee’s work area once per week, and
traversed certain work areas on regular plant walk-throughs
“more often” than in the past); Laser Tool, Inc., 320 NLRB at
111–112 (owner hid behind a cabinet near employees’ work-
stations in an apparent attempt to listen to their conversation,
and provided no alternative explanation for his behavior at
trial). Marczyszak, Arnson, and Butler, as managers, have a
responsibility to oversee the work performed in the facility, and
to ensure that the employees are productive. In order to fulfill
those functions, they must move about the plant to maintain an
adequate overview of the work being performed and any prob-
BURNDY, LLC 21
lems which arise. As a result, although their repeated, unprece-
dented questioning and chiding of the GMP officers regarding
conducting union business on worktime was unlawful, the evi-
dence does not establish that they engaged in specific surveil-
lance of the GMP officers. I therefore find that the allegations
that Marczyszak, Arnson, and Butler engaged in surveillance
have not been substantiated, and will recommend that para-
graphs 9(c), 10(d), and 11(e) of the complaint be dismissed.
3. Statements attributed to Lochman
Paragraph 13 of the complaint alleges that Lochman threat-
ened employees with unspecified reprisals in retaliation for
their union activities at the March 2 labor management meet-
ing. I find that the evidence overall does not substantiate this
allegation. While the account of the March 2 meeting provided
by General Counsel’s witnesses was sparse and somewhat con-
tradictory, Norton and Hing eventually testified that Lochman
said that if the GMP continued the pace of its activities, particu-
larly with respect to the filing of grievances, “they were going
to come down hard on us.” However, Norton’s testimony re-
garding this meeting was disjointed, and he required significant
prompting by counsel in order to provide any context for
Lochman’s alleged threat of reprisal (Tr. 116–120). Hing’s
account of Lochman’s statements varied. Hing initially testi-
fied that Lochman said that if the GMP continued to press
grievances, “he was going to come down on us,” but then on
cross-examination testified that Lochman told the group that
Hubbell “had some option or their ideas or something like that
. . . they’re going to come down on your guys” (Tr. 303, 322).
In addition, although Hing discussed the March 2 meeting in
his affidavit, he did not mention Lochman’s purported threat to
“come down on” the GMP or its members at that juncture, only
3 months after the March 2 meeting itself (Tr. 321). Hing in-
sisted at several points in his testimony that Norton did not
speak during the March 2 meeting, contrary to Norton’s ac-
count (Tr. 119, 313–314, 324). Hing also contradicted Nor-
ton’s testimony that Lochman’s threat of reprisal “ended the
meeting” (Tr. 117, 323–324). Finally, I note that Don Seal, the
GMP representative who arranged for the meeting with
Lochman and served as the Union’s chief spokesperson, did not
testify at the hearing to corroborate Norton and Hing, although
he remains employed by the GMP.48 Overall, the lacunae in the
testimony of Norton and Hing, the contradictions between their
accounts, and Seal’s failure to testify, cast doubt upon the relia-
bility of the General Counsel’s evidence regarding Lochman’s
statements during the March 2 meeting.
The overall context and purpose of the March 2 meeting also
militates against a finding that Lochman told the participants
that Respondent would “come down hard” on the GMP if the
Union continued filing grievances or engaging in other activi-
ties. The evidence establishes that the March 2 meeting was
arranged between Lochman and Seal in order to address what
they both perceived as a deterioration in the overall relationship
between Respondent and the GMP. Seal and Lochman, as well

48 While I do not find it appropriate to draw an adverse inference
based upon Seal’s failure to testify and corroborate Norton and Hing’s
account of the March 2 meeting, I find his failure to do so significant,
and have considered it in making my findings.
as GMP Representative Hector Sanchez, spoke at the meeting
regarding the need to repair the collective-bargaining relation-
ship and work together constructively, and expressed their mu-
tual view that the bargaining unit employees enjoyed excellent
wages and benefits. The evidence further establishes that im-
mediately after Lochman’s remarks the parties were scheduled
to discuss a number of outstanding GMP grievances, with a
view toward resolving them. I find it improbable that in such a
context Lochman would counterproductively threaten the Un-
ion with reprisals as alleged. I find it particularly unlikely that
Lochman would, as Norton testified, end his remarks in such a
manner if the parties were going to immediately proceed to
attempt to resolve pending grievances. It is further undisputed
that Seal believed that the meeting went well, felt that everyone
had the opportunity to present their perspectives, and told Nor-
ton that the GMP should focus on moving forward to establish
a productive working relationship (Tr. 243–244). In fact, Nor-
ton testified that Seal and Lochman both appeared “sincere in
their efforts to . . . move forward in a positive way” (Tr. 244).
Again, Seal did not testify at the hearing. In the absence of a
concrete explanation on his part, I find it difficult to believe
that he would express such an opinion had Lochman threatened
the GMP with reprisals for filing additional grievances.
In making these assessments, I acknowledge the likelihood
of Lochman’s frustration with the more aggressive activity of
the GMP’s new leadership, and with the GMP’s activities in
pursuing grievances and unfair labor practice charges that
Lochman admitted were discussed during the meeting. I fur-
ther find it entirely possible, given Lochman’s agitation during
his cross-examination, that he became heated during the meet-
ing, and expressed his dismay at the change in the GMP’s rela-
tionship with Respondent in a forceful manner.49 However, the
issue is not whether Lochman became discernibly angry, it is
whether he expressed himself by telling the GMP representa-
tives that if they continued to file grievances, Respondent
would “come down on” the Union. I find that the countervail-
ing evidentiary and pragmatic considerations discussed above
ultimately militate convincingly against such a conclusion.
For all of the foregoing reasons, I credit Lochman’s testimo-
ny, as well as the corroborating testimony of Marczyszak and
Rovello, that he did not threaten to “come down on” the GMP
during the March 2 labor management meeting. I therefore
recommend that paragraph 13 of the complaint be dismissed.
B. Allegations Regarding Retaliatory Discipline, More
Onerous Working Conditions, and Monitoring
1. General principles
Under Section 8(a)(3) of the Act, an employer may not dis-
criminate with regard to the hire, tenure, or any term or condi-
tion of employment in order to encourage or discourage mem-
bership in a labor organization. In order to determine whether
an adverse employment action violated the Act in this manner,
the Board applies the analysis articulated in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), approved in NLRB v. Transporta-

49 I note that Norton also became upset while testifying regarding the
March 2 meeting (Tr. 116–117).
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion Management Corp., 462 U.S. 393 (1983). To establish
unlawful discipline under Wright Line, the General Counsel
must first prove, by a preponderance of the evidence, that the
employee’s union sympathies or activities were a substantial or
motivating factor in the employer’s decision to take action
against them. Manno Electric, Inc., 321 NLRB 278, 280
(1996). The General Counsel makes a showing of discriminato-
ry motivation by proving the employee’s union support or ac-
tivity, employer knowledge of that activity, and animus against
the employee’s protected conduct. Naomi Knitting Plant, 328
NLRB 1279, 1281 (1999). Proof of an employer’s motive can
be based upon direct evidence or can be inferred from circum-
stantial evidence, based on the record as a whole. Ronin Ship-
building, 330 NLRB 464 (2000); Robert Orr/Sysco Food Ser-
vices, 343 NLRB 1183 (2004).
If the General Counsel is successful, the burden of persua-
sion then shifts to the employer to show that it would have
taken the same action even in the absence of the employee’s
union support or activities. Wright Line, 251 NLRB at 1089;
Septix Waste, Inc., 346 NLRB 494, 496 (2006); Williamette
Industries, 341 NLRB 560, 563 (2004). Once the General
Counsel has met its initial burden under Wright Line, an em-
ployer does not satisfy its burden merely by stating a legitimate
reason for the action taken, but instead must persuade by a
preponderance of the credible evidence that it would have taken
the same action in the absence of the protected conduct. T&J
Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc.,
321 NLRB at 280 fn. 12.
2. Disparate application of general rule 9 prohibiting
loafing or abuse of time and the General
Counsel’s prima facie case
I find that the General Counsel has established a prima facie
case that the discipline issued to Sears, Velez, and the GMP
officers in February, April, and May 2012 was unlawfully mo-
tivated. The evidence amply establishes the alleged
discriminatees’ union activities and Respondent’s knowledge.
All of the employees disciplined, except Velez, were union
officers, and some were engaged in union or protected activity
during the incidents for which they were disciplined, such as
Sears and Hing on April 12. Norton signed the January 3 letter
to upper management regarding the Cessa incident complain-
ing, on behalf of both the GMP and the IUE, about
Marczyszak’s behavior. On January 31, Region 34 served on
Respondent the first complaint in this matter, alleging viola-
tions of Section 8(a)(1), (3), and (5) with respect to the GMP.
Thus, Respondent was well aware of the union positions held
by Sears and the GMP officers, and of their activities on behalf
of the respective Unions.50
There is also sufficient evidence of animus to support a pri-
ma facie case. For example, the timing of the discipline sup-
ports an inference that it was unlawfully motivated. It is well
settled that an adverse employment action against employees
within days of learning of union activity “strongly supports an

50 Although the evidence does not establish that Sears’ signature ap-
pears on the January 3 letter, the letter was signed by the president of
the IUE, and it is undisputed that Respondent was aware that Sears was
an IUE steward.
inference of animus and discriminatory motivation.” Acme Bus
Corp., 357 NLRB 902, 927 (2011); see also ManorCare Health
Services—Easton, 356 NLRB 202, 204, 226 (2010), enfd., 661
F.3d 1139 (D.C. Cir. 2011) (discipline of employee “just days”
after her first public support for the union indicative of unlaw-
ful motivation). Here, the “loafing” discipline imposed upon
the union officers began within days of Region 34’s issuing the
January 31 complaint, and within 2 weeks Sears and the majori-
ty of the GMP officers had received initial counselings. Ani-
mus is also evident in Marczyszak, Arnson, and Butler’s dis-
parate enforcement of Respondent’s rules regarding nonwork-
related conversations on worktime, threats of discipline and
unspecified reprisals, and creation of the impression of surveil-
lance in fall 2011, all of which violated Section 8(a)(1). See
Austal USA, LLC, 356 NLRB 363, 363–364 (2010) (The
8(a)(1) violations constitute evidence of animus); Bally’s Atlan-
tic City, 355 NLRB 1319, 1327 (2010), enfd. 646 F.3d 929
(D.C. Cir. 2011). Furthermore, Respondent’s conduct in this
regard was sufficiently persistent to rise to the level of harass-
ment in violation of Section 8(a)(1) and (3). As discussed
above, it is evident from the record that Marczyszak directed
Arnson and Butler to target the union officers in response to the
GMP’s more aggressive approach to contract enforcement after
Norton became president.
In addition, as discussed above in section III(A)(1), the evi-
dence does not establish that Respondent had a consistent prac-
tice of disciplining employees for speaking to one another dur-
ing worktime, whether or not rule 9 was explicitly cited. The
documentary evidence which Respondent contends establishes
an existing practice of discipline for abuse of worktime primari-
ly involves activities outside the plant, such as smoking, or
conduct inside the plant other than talking, such as eating or
drinking, using a cell phone to talk or for some other purpose,
or reading. Rovello testified that she could not recall any addi-
tional discipline issued to employees solely for speaking with
one another. While Hing and Cavaluzzi received discipline on
August 17, 2010, for “conducting union business on work
time,” there is no information as to what they were actually
doing. The two disciplines for talking on worktime, issued to
Gombert on August 6, 2010, and Feliz on April 13, 2011, both
involve the distinguishing circumstances discussed previous-
ly.51 By contrast, Arnson testified that he observed Norton or
Hing with a copy of the GMP contract or union documents
during worktime about three times per year, but there apparent-
ly was no discipline issued as a result prior to 2012. Therefore,
the documentary evidence overall does not establish a con-
sistent practice of issuing discipline to employees simply for
conversing with one another, regardless of a citation to general
rule 9. This is consistent with the testimony of the employee
GMP officers and Sears that they had never heard of two em-
ployees being disciplined for such conversations.52

51 In Gombert’s case, the discipline indicates that he left his machine
to roam the plant chatting with employees during worktime, covering
the warehouse, pattern area, and machine shop, where he had coffee.
The discipline issued to Feliz indicates that he confronted Arnson after
being directed to return to his work area.
52 Sears testified that, in his experience as IUE steward, none of em-
ployees in the IUE bargaining unit who speak primarily Spanish had
BURNDY, LLC 23
Finally, the evidence establishes that Respondent altered its
disciplinary practice with respect to general rule 9 prohibiting
loafing in response to the increased activities of the GMP, in a
manner indicative of animus against union activity. In this
regard, Rovello’s testimony that she began explicitly citing to
rule 9 in 2010 is contradicted by the documentary evidence
Respondent introduced regarding discipline issued for loafing
since 2008 (R.S. Exhs. 25, 28). These documents establish that
prior to February 3, Respondent specifically cited rule 9 or
“loafing” in only three disciplines issued in 2008—one to
Cavaluzzi for reading the newspaper during worktime, one to
employee Feliz for washing up 20 minutes early, and one to
employee Genao for talking on his cell phone during worktime.
There is no pattern of citing to rule 9 or “loafing” which begins
in 2010 or 2011, although Respondent issued discipline for
engaging in other activities during worktime during those years.
In addition, Rovello testified that she began using rule 9 in
2010 in order to include all types of failing to work during
worktime in one sequence of progressive discipline, after Hing
argued that discipline issued to Cavaluzzi for smoking inside
and outside the facility should be treated separately for progres-
sive disciplinary purposes. However, the record contains no
evidence that Cavaluzzi was disciplined for smoking anywhere
at any time after 2008.53
As a result, I find that Rovello’s testimony regarding the tim-
ing and motivation for the change in Respondent’s disciplinary
practice regarding citations to general rule 9 is not credible. It
is more likely that, as Lochman admitted during his testimony,
he directed Rovello to explicitly refer to “loafing” or general
rule 9 in disciplinary documentation, “once things got a little bit
more confrontational, where we saw the increase in grievances”
on the part of the Unions (Tr. 1159–1160). It was also during
this period that Marczyszak directed the other supervisors to
discipline union officers found conversing amongst themselves
or with other employees on the assumption that they were en-
gaged in “union business.” Indeed, the two strategies were
complementary—while Marczyszak’s instruction ensured that
union officers would be disciplined more frequently than em-
ployees not holding union office or engaged in union activity,
Lochman’s idea to place all such “infractions” within the same
sequence of progressive discipline would result in the imposi-
tion of more serious penalties. As a result, the evidence estab-
lishes that Respondent deliberately changed its practice in
terms of citing general rule 9 in response to the increased ac-
tivities of the new GMP leadership.
For all of the foregoing reasons, I find that the General
Counsel has established a prima facie case that the discipline
issued to Sears and the GMP officers in February, April, and
May was imposed in retaliation for their union support and
activities. I also find that the General Counsel has also estab-
lished a prima facie case that Respondent selectively applied
general rule 9 prohibiting “loafing” to Sears and the GMP of-

been disciplined for brief conversations, regardless of whether they
were actually working at the time.
53 The evidence establishes that Cavaluzzi was repeatedly disciplined
for absenteeism, which was subject to a separate sequence of progres-
sive discipline.
ficers in the context of the allegedly unlawful discipline. Addi-
tional evidence pertaining to Respondent’s asserted legitimate,
nondiscriminatory reasons for the individual disciplinary ac-
tions will be addressed below. Ultimately, I have found that
Respondent did not provide evidence sufficient to substantiate
its claims that the various disciplinary actions were motivated
by legitimate considerations. This finding further supports the
overall conclusion that Respondent disparately applied general
rule 9 to prohibit union activity, or discussion amongst or with
union officers that Respondent’s managers believed at the time
involved union matters, as alleged in paragraph 16 of the com-
plaint.
3. The February 3 counseling issued to Sears, and Rovello’s
alleged March 7 threat of retaliation
Respondent asserts that it issued a counseling to Sears on
February 3 for “loafing” in violation of general rule 9, which
consisted of “having a discussion with a pattern shop employ-
ee” during worktime. The evidence establishes that on Febru-
ary 3, during worktime, Marczyszak discovered Sears leaning
on a stool talking to Cavaluzzi at Cavaluzzi’s workbench.54 I
find that the evidence overall establishes that Respondent is-
sued the February 3 counseling to Sears in retaliation for his
union position and activity, and not for any legitimate, nondis-
cirminatory reason.
The circumstances surrounding the February 3 incident and
the counseling support the conclusion that the discipline issued
to Sears was part of the newly engineered effort to use general
rule 9 to prevent union activity during periods when other
nonwork-related conversation was permitted. For example,
when Marczyszak saw Sears and Cavaluzzi talking, he did not
simply approach them immediately, but walked the entire pe-
riphery of the area, watching Sears and Cavaluzzi, prior to con-
fronting them. Marczyszak implausibly denied during his tes-
timony that this was a longer and more roundabout way to
reach the pattern shop (Tr. 811). I find Marczyszak’s conten-
tion that he did so in order to avoid an unpleasant confrontation
with Sears similarly incredible given his previously outspoken
opposition toward union officers’ conversations during
worktime. In particular, as discussed above, Marczyszak di-
rected Arnson to inform the union officers that he had personal-
ly ordered the managers to issue writeups on the assumption
that the union officers were conducting union business if they
were discovered conversing on worktime. In addition, both
Marczyszak and Sears testified that Sears avoided interacting
with Marczyszak, and often left an area if Marczyszak ap-
proached him (Tr. 527, 755).
Instead, I find that Marczyszak was purposefully extending
his path to the pattern shop in an attempt to catch Sears and
Cavaluzzi talking for a sufficiently lengthy period to warrant
discipline if their conversation was not work related.
Marczyszak testified that any manager could approach an em-
ployee seen conversing with another to ask what the employees
were doing, as opposed to issuing discipline:

54 Sears was responding to Cavaluzzi’s question about whether he
would be paid for his time while attending an upcoming GMP arbitra-
tion hearing.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . . unless it’s something they’ve seen taking place that’s
egregious. If I walk [up] to people, and they’re briefly talk-
ing, and I ask them what they’re working [on] and they break
up, then they’ve gone back to work. If on the other hand
someone is taking more than just a few minutes and they
don’t go back to work, then obviously they’re loafing and
abusing time. [Tr. 797–798.]
According to Marczyszak’s testimony, therefore, if an employ-
ee who might not be working walked away after being ap-
proached, they would have “gone back to work,” the problem
would be resolved, and no discipline would be necessary.
Marczyszak did not pursue this course, however, and his expla-
nations for foregoing it are not credible. Instead, the sequence
of events here indicates that Marczyszak was interested in es-
tablishing the latter, and refrained from speaking directly to
Cavaluzzi and Sears in the hope that they would continue their
conversation for a length of time sufficient to warrant discipli-
nary action. As a result, I find that his actions after discovering
Sears in conversation with Cavaluzzi were motivated by a de-
sire to impose discipline.
Regardless of Marczyszak’s efforts, however, the evidence
ultimately does not establish that Sears ran afoul of
Marczyszak’s conception of “loafing and abusing time.”
Marczyszak testified, as described above, that as far as he was
concerned, “talking more than just a few minutes” without
working constituted “loafing or abuse of time” in violation of
general rule 9, but exchanging pleasantries with a coworker or
manager for a few minutes was permissible (Tr. 700–701, 797–
798). Sears testified that his exchange with Cavaluzzi lasted
for about a minute and a half, and that seems a plausible esti-
mate given that the entire interaction consisted of Cavaluzzi’s
asking him whether he would be paid for his time attending a
GMP arbitration, and Sears’ response that Ray Dalton had not
been paid for his time at an IUE arbitration. However, even if
Marczyszak’s traversal of the periphery of the area prior to
confronting Sears took 3 to 4 minutes, as he claims, Sears and
Cavaluzzi would have remained within the bounds of accepta-
ble conversation during worktime given Marczyszak’s defini-
tion. Furthermore, given the subtlety of Marczyszak’s distinc-
tion between prohibited “loafing” and permissibly brief
nonwork-related conversation, it is odd that the counseling does
not specify the amount of time that Marczyszak observed Sears
and Cavaluzzi speaking to one another.55 This is particularly
the case given the fact that Marczyszak went out of his way for
the sole purpose of observing them for, according to his testi-
mony, several minutes. The failure to determine exactly how
long Sears was speaking with Cavaluzzi indicates that
Marczyszak was simply interested in disciplining union officers
engaged in conversation, regardless of whether their conduct
rose to the level of “abusing time.”56 See Valmont Industries,

55 Foote prepared the written counseling based upon Marczyszak’s
account of the incident.
56 Respondent also argues that Sears’ conduct violated art. 27(A) of
the IUE contract, which states that IUE members will not “carry on
union activities during working hours on the premises of the Employ-
er.” I decline to make such a finding or to find a waiver applicable to
Sears’ conduct based upon this language, as the evidence in fact indi-
328 NLRB 309, 314 (1999), enf. denied in relevant part 244
F.3d 454 (5th Cir. 2001) (manager’s “absence of any precision
regarding the length” of employee’s allegedly prohibited con-
versation evidence of an inadequate investigation, and indica-
tive of pretext).
Respondent notes that Cavaluzzi was not disciplined as a re-
sult of this incident, because, according to Marczyszak,
Cavaluzzi appeared to be working during the conversation with
Sears. Respondent argues that Marczyszak’s declining to dis-
cipline Cavaluzzi indicates that the counseling issued to Sears
had a legitimate, nondiscriminatory purpose, and that general
rule 9 prohibiting loafing and abuse of time was not applied in
a disparate manner. This argument, however, ignores the tes-
timony of Lochman, Marczyszak, and Rovello regarding the
rationale for Respondent’s changes in disciplinary practices,
which strongly indicates that they were engendered by the
GMP’s increased activities in 2011. In addition, it is well set-
tled that an employer’s failure to impose adverse consequences
upon every individual involved in union activity does not pre-
clude a finding that the actions it did take were unlawfully mo-
tivated. See, e.g., Alstyle Apparel, 351 NLRB 1287, 1287–
1288,1301 (2007); Volair Contractors, Inc., 341 NLRB 673,
676–677 fn. 17 (2004).
For all of the foregoing reasons, and for the reasons dis-
cussed in section III(B)(2), above, the evidence overall estab-
lishes that Respondent issued the February 3 counseling to
Sears in retaliation for his union activity, in violation of Section
8(a)(3) of the Act, as alleged in paragraph 17 of the complaint.
I further find that Respondent violated Section 8(a)(1) of the
Act when Rovello threatened Sears with discipline in her
March 7 letter, based upon his conduct at the step 2 meeting
regarding his February 3 discipline. Sears testified that at the
step 2 meeting he told Rovello while she was questioning him
regarding the events at issue, “How many fucking times do I
have to tell you that’s not what happened,” whereas Rovello
contended that Sears said to her, “I want to know what you
fucking do all day.” Even if Rovello’s account of Sears’ state-
ment is correct, it would not be sufficient to remove Sears’
activity during a grievance meeting from the Act’s protection
under the four factor test articulated in Atlantic Steel Co., 245
NLRB 814 (1979). Sears’ outburst took place in a conference
room with only Rovello, Swanhall, Sears, and IUE Steward
Herman Barnes present, so that it did not undermine managerial
authority in front of other employees or disrupt work processes.
Datwyler Rubber & Plastics, 351 NLRB 669, 670 (2007). The
subject matter of the discussion involved a grievance challeng-
ing Sears’ discipline, clearly militating in favor of protection.
The nature of the outburst—in particular the use of the word
“fucking”—does not warrant a finding that Sears’ activity was
unprotected. See Plaza Auto Center, 355 NLRB No. 85, slip
op. at 2–5 (2010), remanded 664 F.3d 286 (9th Cir. 2011);
Tampa Tribune, 351 NLRB at 1324–1325 (2007), enf. denied,

cates that union-related conversations during worktime were permitted
prior to fall 2011, and are ostensibly still permitted, so long as the em-
ployees are working. See also Danzansky-Goldberg Memorial Chap-
els, 264 NLRB 840, 842–843 (1982); Marco Polo Resort Motel, 242
NLRB 1288, 1290 (1979), enfd. 617 F.2d 293 (5th Cir. 1980).
BURNDY, LLC 25
560 F.3d 181 (4th Cir. 2009); Alcoa, Inc., 352 NLRB 1222,
1225–1226 (2008). Finally, Sears’ outburst was provoked by
the February 3 counseling itself, which Respondent issued for
unlawful reasons. Network Dynamics Cabling, Inc., 351 NLRB
1423, 1427–1429 (2007). As a result, I find that Sears’ state-
ments did not lose the Act’s protection under the Atlantic Steel
analysis, and that Rovello’s March 7 threat to discipline him
violated Section 8(a)(1) of the Act, as alleged in paragraph 14
of the complaint.
4. The counselings issued to Norton, Domeracki,
Cavaluzzi, and Vaast on February 10 and 13
Respondent contends that it issued these counselings for
“loafing” in violation of general rule 9 because Rovello ob-
served the GMP officers conducting union business on
worktime on February 8. Norton, Domeracki, and Vaast main-
tained that they were in fact discussing the repair of a pattern. I
find that the evidence overall establishes that these counselings
were issued in retaliation for the GMP officers’ union activity,
and that Respondent’s asserted reason for the discipline was
pretextual.
The evidence establishes that the counselings based upon the
February 8 incident, like the February 3 counseling issued to
Sears, evinced Respondent’s new practice of disciplining union
officers found engaging in conversation under the rubric of
“loafing” or violating general rule 9. In addition, however,
Rovello’s actions in connection with the incident itself and the
disciplinary process, and the account provided during her testi-
mony, were fundamentally problematic. For example, Rovello
initially claimed that she observed the four GMP officers “in
this group meeting for a while” before actually speaking to
them, but later testified that she took only 20–25 steps from the
time she first saw them until the confrontation (Tr. 867, 873).
As with the February 3 counseling issued to Sears, there is no
mention in the counselings prepared by Rovello of the amount
of time that the GMP officers were allegedly engaged in
nonwork-related conversation on February 8. In addition, alt-
hough Rovello initially testified that she saw a GMP contract
booklet in Cavaluzzi’s drawer and that Norton closed a manila
folder as she approached, she eventually admitted that she did
not in fact know whether the book she saw was the GMP con-
tract booklet (Tr. 866–867, 970–971).57 Indeed, none of the
counselings Rovello prepared regarding this incident mention
the presence of the GMP contract booklet—presumably an
important piece of evidence that the GMP officers were not
working, but were engaged in union activity at the time she saw
them. The omission of this detail is particularly striking given
Butler’s testimony that Norton needs to visit the pattern shop
and speak to its employees on a regular basis to perform his
job, and that Norton had always given Butler legitimate expla-
nations for being there when questioned. All of this evidence
strongly suggests that Rovello simply assumed based upon the

57 The evidence also establishes that Norton kept job-related paper-
work in the manila folder, as well as greeting cards for different life
events which other employees signed. However, Rovello provided no
explanation as to how she arrived at the conclusion that Norton’s shut-
ting the folder was related to union business, as opposed to work-
related matters.
individuals involved—at the time all GMP officers—that they
were “having a meeting” regarding union business, and issued
counseling to them as a result. Indeed, this is precisely the
course of action that Marczyszak had ordered previously.
Certain of Rovello’s testimony regarding the disciplinary
process and grievance procedure with respect to the February
10 and 13 counselings was similarly unreliable. For example,
although Rovello testified that she did not speak to Lochman
before issuing the February 10 counseling to Norton, Lochman
testified that he “signed off on every counseling” at issue in this
matter, including Norton’s, and that he would be “very sur-
prised” if Rovello issued a counseling without informing him
first (Tr. 877–878, 947, 1172–1174). Rovello also contended
that the GMP officers did not assert that they were working on
a pattern when she approached them on February 8 until the
step 3 grievance meeting sometime after March 30, when in
fact the union asserted this defense in its grievance filed on or
before February 15 (Tr. 891, 948–951). Rovello’s account of
the disciplinary and grievance process was therefore contradict-
ed by Lochman’s testimony and the documentary evidence,
which militates in favor of a conclusion that Respondent’s as-
serted legitimate reason Respondent had for the February 10
and 13 counselings is in fact pretextual.
For all of the foregoing reasons, I find that Respondent has
not established by a preponderance of the evidence that the
counselings to Norton, Domeracki, Cavaluzzi, and Vaast based
upon the February 8 incident were issued for legitimate, non-
discriminatory reasons. I therefore find that Respondent issued
these counselings in retaliation for the employees’ union activi-
ties in violation of Section 8(a)(1) and (3) of the Act, as alleged
in paragraphs 18 and 19 of the complaint.
5. The verbal warning issued to Sears and counseling
issued to Hing on April 12
The evidence establishes that the April 12 discipline issued
to Sears and Hing also involved Respondent’s changed practice
of treating brief conversations involving union matters as “loaf-
ing” in violation of general rule 9. The evidence establishes
that on April 12, Sears saw Hing in the old machine shop and
noticed a copy of the GMP contract on Hing’s forklift. Sears
asked to borrow the contract to review the bereavement pay
provision, and when it was not open to the page containing the
bereavement pay language, stuck it in his back pocket and left.
Hing may or may not have spoken during the interaction, but
both Sears and Hing testified that the entire exchange lasted a
minute or less.
The conduct of Butler, who witnessed this incident, was sim-
ilar to that of Marczyszak during the February 3 incident in-
volving Sears. Butler testified that he was on his way to the
pattern shop when he saw Sears and Hing talking, and heard
Sears say, “excused absences.” Instead of directly approaching
Sears and Hing to determine what was going on, Butler testified
that he observed them for “more than a minute,” and then pro-
ceeded to look for their supervisors. Sears and Hing’s testimo-
ny regarding the length of the conversation, somewhat shorter
than Butler’s estimate, is the more plausible given that Hing
was operating the forklift at the time in an area containing ma-
chinery which creates a noise level of 85 decibels, precluding a
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
protracted discussion. However, even if Butler were credited
regarding the length of Sears and Hing’s conversation, accord-
ing to Marczyszak’s testimony, “more than a minute” would be
within the bounds of acceptable nonwork-related conversation
on worktime, even if there is no work actually being performed.
In addition, as with the February Sears and pattern shop
counselings, the April 12 discipline issued to Sears and Hing
for “loafing” in violation of rule 9 contains no mention of pre-
cisely how long they were speaking with one another, only that
they were discussing “an open booklet” and “nonwork related
matters.” This indicates that Respondent made no meaningful
effort to determine whether the employees were in fact abusing
worktime, but simply intended to discipline two union officers
found conversing, however briefly, regarding nonwork-related
issues. In addition, Marczyszak testified that Butler could have
simply approached Sears and Hing to ask what they were do-
ing, potentially a much more efficient means of resolving the
matter (Tr. 797–798). Butler’s unexplained failure to do so
indicates that, again, Respondent’s managers were more inter-
ested in issuing discipline to the “union guys” than resolving
problems in an expedient manner.
For all of the foregoing reasons, the evidence does not sub-
stantiate Respondent’s contention that it issued the counseling
to Hing and the verbal warning to Sears on April 12 for nondis-
criminatory reasons. Instead, I find that Sears and Hing were
disciplined in retaliation for their union activities, in violation
of Section 8(a)(1) and (3) of the Act, as alleged in paragraphs
20 and 21 of the complaint.
6. The counseling issued to Velez on April 13
Respondent contends that Rovello issued a counseling to Ve-
lez on April 13 based upon her having observed him speaking
with Cavaluzzi regarding nonwork-related topics. There is no
dispute that Velez and Cavaluzzi were discussing a baseball
game at the time Rovello approached them. In addition, Velez
had not been a GMP officer since 1999.
However, the evidence overall establishes that the April 13
counseling was unlawfully motivated. The April 13 counseling
was issued one day after the unlawful discipline of Sears and
Hing for “loafing” in violation of general rule 9, described
above. The circumstances of Velez’ counseling are also similar
to those involved in the previous counselings issued to Sears,
Norton, Domeracki, Vaast, Cavaluzzi, and Hing. In particular,
Rovello made no attempt to determine the length of Velez and
Cavaluzzi’s discussion, but immediately announced that she
would be issuing discipline. As with the previous discipline
issued pursuant to Respondent’s newly implemented practice
regarding general rule 9, the counseling does not mention the
length of Velez and Cavaluzzi’s conversation, and in fact states
that when Rovello approached Velez “left the area.” This is
exactly the scenario that, given the testimony of Marczyszak
described above, would not warrant disciplinary action.58 Fi-
nally, as discussed above regarding the February 3 counseling
issued to Sears, the fact that Cavaluzzi was not disciplined in

58 “If I walk [up] to people, and they’re briefly talking, and I ask
them what they’re working [on] and they break up, then they’ve gone
back to work.”
connection with this incident because he appeared to Rovello to
be working does not preclude a finding that Velez’ counseling
was unlawfully motivated. As a result, for all of the foregoing
reasons, I find that the evidence establishes that Velez, was
“swept up” in Respondent’s disparate and retaliatory prohibi-
tion on discussion regarding union matters on worktime and
changed practices regarding the application of general rule 9
prohibiting loafing or abuse of time. See Allstate Power Vac,
Inc., 357 NRB 344, 346–348 (2011) (knowledge of protected
activity and violation established where employee “‘caught up’
in the unlawful discipline issued to known union adherents”);
McKee Electric Co., 349 NLRB 463, 464–465 (2007) (violation
established where unaffiliated applicants “‘swept into [an] un-
lawful group’ refusal to hire”). As a result, I find that the evi-
dence overall establishes that Respondent violated Section
8(a)(1) and (3) of the Act by issuing the April 13 counseling
issued to Velez, as alleged in paragraph 20 of the complaint.
7. The May 3 written warning issued to Sears
Respondent contends that the May 3 written warning it is-
sued to Sears for “loafing or other abuse of time” in violation of
general rule 9 was engendered by legitimate, nondiscriminatory
considerations, written warning was also based upon the obser-
vations of Butler and ultimately Marczyszak, who saw Sears
talking to Norton in the pattern storage area. According to
Sears, he was on his way to get a drink of water at the fountain
near Norton’s bench, when Norton invited him to a meeting
with an NLRB agent. Sears said that he would be interested in
attending if he did not have to work at the time. Sears and Nor-
ton testified that this conversation lasted for about a minute or
two. Ultimately the evidence establishes that the May 3 written
warning was unlawfully motivated.
Butler initially saw Sears and Norton talking, and responded
as he did when he observed Sears and Hing together on April
12, that is, instead of confronting them directly he reported to
Marczyszak that Sears was “hanging around the pattern storage
area . . . not working.” Butler did not provide any plausible
reason for informing Marczyszak about Sears and Norton’s
conversation, as opposed to simply approaching them himself,
which would be the most direct and efficient manner for deal-
ing with the situation. Marczyszak then testified that he ad-
dressed the situation as he did the February 3 incident between
Sears and Cavaluzzi—by watching Sears and Norton for “three
or four minutes” prior to approaching them and asking Sears
whether he was working. Although Sears by all accounts left
immediately after Marczyszak confronted him, Marczyszak
issued a written warning to him anyway. This course of action
is contrary to the interpretation of general rule 9 Marczyszak
offered during the testimony quoted above, namely that if “I
ask them what they’re working [on] and they break up, then
they’ve gone back to work” and no discipline is necessary,
whereas a conversation lasting “more than just a few minutes,”
followed by the employee’s refusal to “go back to work,” war-
rants discipline for loafing.
Furthermore, consistent with the previous practice of Re-
spondent’s managers, the written warning itself, prepared by
Marczyszak, makes no mention of the amount of time that he
observed Sears and Norton speaking, although that information
BURNDY, LLC 27
is presumably crucial to a determination as to whether or not
Sears was “loafing” in violation of general rule 9. In fact,
Marczyszak admitted when he testified to observing Sears and
Norton conversing for 3 to 4 minutes that he was “adding de-
tails” that he “didn’t think were important enough to add back
in May [2012], when the discipline took place” (Tr. 825–826).
Marczyszak’s characterization of the length of Sears and Nor-
ton’s conversation as an unimportant detail at the time of the
discipline indicates that the written warning he issued to Sears
on May 3 was unlawfully motivated, and not engendered by
legitimate concerns regarding the possible violation of general
rule 9. See Valmont Industries, 328 NLRB at 314 (“post disci-
pline statements” obtained in order to buttress otherwise vague
evidence that employee conversation took place on worktime
indicate that employer’s purportedly legitimate reason for dis-
cipline was in fact pretextual).
For all of the foregoing reasons, I find that Respondent has
not established by a preponderance of the evidence that the
May 3 written warning issued to Sears was motivated by legit-
imate, nondiscriminatory considerations. I therefore find that
the written warning violated Section 8(a)(1) and (3) of the Act,
as alleged in paragraph 22 of the complaint.
8. The May 29 suspension of Sears
Respondent claims that Sears was legitimately suspended on
May 29 for another incident of “loafing and abuse of time” in
violation of general rule 9. Although the incident which
formed the basis for Sears’ suspension did not involve conver-
sations between or with employee union officers, I find that
Respondent failed to substantiate its contention that it suspend-
ed Sears for nondiscriminatory reasons.
The evidence establishes that Marczyszak and Arnson dis-
covered Sears sitting in the maintenance area on May 29, drink-
ing a soda. Sears testified that he had just been working on the
facility’s Morgan furnace, and because he was thirsty he want-
ed a drink before moving on to his next task. Sears testified, as
did Marcyszak and Arnson, that he had also taken off his uni-
form work shirt due to the effect of the heat of the furnace.
Marczyszak and Arnson also confirmed that in response
Marczyszak’s questions, Sears informed them that he had just
been working on the furnace. Marczyszak testified that he
assumed that Sears had been “in there sitting” for “minutes”
because he and Arnson did not see Sears on their way into the
maintenance room. As a result, he suspended Sears for “loaf-
ing or other abuse of time” in violation of general rule 9.
The evidence adduced by Respondent simply does not sup-
port its assertion that lawful considerations engendered Sears’
suspension. For example, the evidence does not establish that
Sears’ actually having a drink was considered by Respondent to
be an offense warranting disciplinary action. For example,
Vaast testified that employees are generally permitted to keep
beverages in their work areas, as long as they are covered, and
Sears was not even in a work area. Rovello testified that she
stated during a subsequent grievance meeting that if Sears
needed a drink because he was thirsty after working on the
furnace, he could have taken time to get one with Arnson’s
permission. It is entirely plausible that Sears would have be-
come hot and thirsty fixing a furnace, and it is undisputed that
when Marczyszak and Arnson discovered him in the mainte-
nance area drinking his soda he had his uniform work shirt off,
ostensibly because he needed to cool down.
Furthermore, there are important discrepancies between
Marczyszak’s testimony and his written accounts of discover-
ing Sears in the maintenance area that cast doubt upon
Marczyszak’s veracity, and ultimately his intent in issuing the
suspension. Marczyszak prepared two documents on May 29
regarding the incident leading to Sears’ suspension—a written
statement and the suspension letter itself. In his testimony,
Marczyszak corroborated Sears’ claim that he explained that he
had been working on the furnace earlier (thus explaining his
thirst and his having removed his uniform shirt). However,
Marczyszak’s written accounts state that Sears told him that he
was “going to fix the furnace,” i.e., that he had not yet done so
(GC Exhs. 39, 43). More importantly, while Marczyszak’s
written account and the suspension letter state that Sears said
that he had stopped to get a drink of soda, Marczyszak testified
that Sears told him in response to the question, “What are you
supposed to be working on now?” that he was “working on
getting a soda,” a substantially more insolent reply (Tr. 749–
750). Significantly, Arnson did not corroborate Marczyszak’s
testimony describing Sears’ response as having been phrased in
such an impertinent manner (Tr. 1111). Nor did Arnson cor-
roborate Marczyszak’s written statement to the effect that he
told Marczyszak after seeing Sears, “These guys should know
better, it’s his own fault” (GC Exh. 43; Tr. 1110–1111). In any
event, there is no dispute that after Marczyszak questioned him,
Sears immediately left the maintenance area and resumed
working, the sort of behavior that Marczyszak testified would
ordinarily not warrant discipline. Nor would Sears’ having
been in the maintenance room for “minutes.” In any event,
Marczyszak’s conclusion regarding the length of time that
Sears had been sitting down drinking a soda was based solely
on his not having seen Sears while entering the maintenance
area. This is not compelling evidence that Sears’ May 29 con-
duct rose to the level of abuse of time.
For all of the foregoing reasons, the evidence does not sub-
stantiate Respondent’s proffered legitimate, nondiscriminatory
reason for suspending Sears on May 29. As a result, the evi-
dence establishes that Sears’ suspension was unlawfully moti-
vated, and violated Section 8(a)(1) and (3) of the Act, as al-
leged in paragraph 23 of the complaint.
9. More onerous working conditions and
monitoring of Sears
The evidence establishes that by taking the series of discipli-
nary actions against Sears on February 3, April 12, and May 3
and 29, Respondent subjected Sears to more onerous working
conditions, monitoring and harassment in retaliation for his
union activities. As discussed above, the evidence establishes
that, at most, one other employee (with the exception of the
GMP officers and Velez) was subjected to Respondent’s new
application of general rule 9 to encompass short conversations
between employees. While employee Shinichi Niiyama was
disciplined on March 12 for loafing, the disciplinary notice
indicates that Niiyama was using his cell phone, an offense
which had warranted discipline in the past, and not involved in
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a conversation with another employee. As a result, the only
discipline supporting Respondent’s position is the counseling of
Jose Pacheco on January 11 for leaving his workstation at the
furnace and talking to another employee. I decline to find an
established practice based upon that single event, particularly
given the previous incidents of unlawfully motivated discipline
and statements violating Section 8(a)(1) established by this
record. I further note that Sears, like Norton and Velez, was an
employee who had no specific assigned workstation, and
moved throughout the plant during the day. In the past, the
Board has found violations involving monitoring and harass-
ment of such employees, who as a result of their mobility can
engage in union activity encompassing a larger segment of the
bargaining unit, than can employees assigned to a specific
workstation. See Valmont Industries, 328 NLRB at 309–310,
313–314. As a result, I find that the unlawful disciplinary ac-
tions described above constitute a pattern of monitoring and
harassment imposed upon Sears, in violation of Section 8(a)(1)
and (3), as alleged in paragraph 24 of the complaint.59
C. Allegations Regarding Unilateral Changes in
Violation of Section 8(a)(1) and (5)
1. Applicable legal standards and Collyer deferral
Under Section 8(a)(5) of the Act, an employer may not uni-
laterally institute changes in wages, hours, and other terms and
conditions of employment involving mandatory subjects of
bargaining without bargaining with the certified representative
to impasse or agreement. NLRB v. Katz, 369 U.S. 736, 742–
743 (1962); NLRB v. Borg-Warner Corp., 356 U.S. 342, 349
(1958). An employer therefore violates Section 8(a)(5) by
altering terms and conditions of employment involving manda-
tory subjects of bargaining without providing the union with
notice and the opportunity to bargain. See, e.g., Southern New
England Telephone Co., 356 NLRB 338, 345 (2010). The
General Counsel establishes a prima facie violation of Section
8(a)(5) by demonstrating that an employer made a material and
substantial change in a term or condition of employment consti-
tuting a mandatory subject of bargaining, without providing the
union with notice and opportunity to bargain. Success Village
Apartments, 348 NLRB 579, 579–580, 628 (2006), citing
Chemical Workers Local 1 v. Pittsburg Plate Class Co., 404
U.S. 157, 159 (1971). The employer must then provide evi-
dence to show that the unilateral change was permissible in
some manner. Success Village Apartments, 348 NLRB at 628.

59 I do not find any violation in this regard based upon Sears and Ve-
lez’ testimony that Marczyszak looked for Sears or asked him what he
was working on when he came upon Sears in the plant. Their testimo-
ny was relatively vague, and Sears’ testimony revealed the contention
in his affidavit that Marczyszak interrupts or actively follows him two
or three times per day to be exaggerated (Tr. 593–594). The evidence
establishes that Marczyszak, as plant manager, performs several walk
throughs of the plant during the course of the day, as he is ultimately
responsible for the overall management of the facility and the produc-
tion process. I do not find any violation in Marczyszak’s asking Sears
what he is working on during these walk throughs, as that may not be
apparent given that Sears’ tasks and work areas fluctuate on a daily
basis, and knowledge of employee work activities is clearly within
Marczyszak’s purview as plant manager.
Where the complaint alleges that an employer has made uni-
lateral changes in terms and conditions of employment which
constituted a past practice, it is the General Counsel’s burden to
establish the existence of the past practice at issue. Southern
New England Telephone Co., 356 NLRB 338, 345; Exxon
Shipping Co., 291 NLRB 489, 493 (1988). In order to prove
the existence of a past practice, the General Counsel must es-
tablish “an activity which has been satisfactorily established by
practice or custom” or an “established condition of employ-
ment.” Exxon Shipping Co., 291 NLRB at 493. The activity in
question must occur with sufficient “regularity and frequency”
during an “extended period of time” such that it “would reason-
ably be expected to continue.” Philadelphia Coca-Cola Bot-
tling Co., 340 NLRB 349, 353 (2003), enfd. 112 Fed. Appx. 65
(D.C. Cir. 2004).
Respondent argues in its posthearing brief that the allega-
tions regarding unilateral changes should be deferred to the
grievance and arbitration procedure contained in the IUE col-
lective-bargaining agreement, pursuant to Collyer Insulated
Wire, 192 NLRB 837 (1971). Whether deferral to the griev-
ance and arbitration process is appropriate is a “threshold ques-
tion” which must be decided prior to addressing the merits of
the allegations at issue. Sheet Metal Workers Local 18—
Wisconsin, 359 NLRB 1095, 1096 (2013), quoting L. E. Myers
Co., 270 NLRB 1010, 1010 fn. 2 (1984). It is well settled that
deferral to arbitration is appropriate where:
the parties’ dispute arises within the confines of a long and
productive collective-bargaining relationship; there is no
claim of animosity to employees’ exercise of Section 7 rights;
the parties’ agreement provides for arbitration in a broad
range of disputes; the parties’ arbitration clause clearly en-
compasses the dispute at issue; the party seeking deferral has
asserted its willingness to utilize arbitration to resolve the dis-
pute; and the dispute is well suited to resolution by arbitration.
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB 1095,
1096.
The evidence establishes that the unilateral change allega-
tions here are inappropriate for deferral under this standard.
Respondent contends that the alleged unilateral refusal to per-
mit the use of the office copy machine should be deferred based
upon the IUE contract’s management-rights and zipper clauses
(art. 1(G) and art. 31), and based upon article 21(A), which
states that “No member of the Union shall carry on union activ-
ities during work hours on the premises of the Employer.”
However, the refusal to permit the use of the office copy ma-
chine is part of the written warning issued to Sears on May 3,
and is therefore inextricably related to the allegation that Re-
spondent violated Section 8(a)(1) and (3) by having issued it.
See American Commercial Lines, 291 NLRB 1066, 1069
(1988); Clarkson Industries, 312 NLRB 349, 351–352 (1993)
(declining to defer allegation regarding retaliatory warning
which was “closely related” to alleged violation of Sec. 8(a)(1)
which was inappropriate for deferral). In addition, Respondent
does not contend that any of the alleged retaliatory discipline
BURNDY, LLC 29
should be deferred to the grievance and arbitration procedure.60
As a result, deferral of the alleged unilateral refusal to permit
employees to use the office copy machine is inappropriate.
I also find it inappropriate to defer the allegation that Re-
spondent violated Section 8(a)(5) by unilaterally refusing to
pay the cost of printing the IUE contract booklet. The facts
surrounding this allegation are contemporaneous with the facts
pertaining to the 8(a)(1) and (3) violations, in that discussions
regarding the cost of printing the contract took place during
grievance and other labor-management meetings addressed
previously. In addition, the Collyer standard requires “no claim
of employer enmity to the employees’ exercise of protected
rights,” a criterion which is not met in this case given the retali-
atory discipline and unlawful statements established by the
record. Clarkson Industries, 312 NLRB at 350. Finally, the
Collyer analysis requires an affirmative assertion of the em-
ployer’s willingness to waive any contention that a grievance
would be precluded by the contract as untimely. See, e.g.,
Pepsi-Cola Co., 330 NLRB 474, 477–478 (2000).
Marczyszak’s testimony in this regard was a bit equivocal (Tr.
770). For all of the foregoing reasons, I find that deferral of the
allegations that Respondent violated Section 8(a)(5) of the Act
to the grievance and arbitration procedure is not appropriate in
this case.
2. Alleged unilateral refusal to permit IUE representatives
to use the office photocopier
The evidence does not establish that Respondent unilaterally
refused to permit IUE representatives to use the office photo-
copier, in that the General Counsel has not met its burden to
prove any previous use of the copier by union representatives
rising to the level of a legally cognizable past practice. The
General Counsel’s sole evidence regarding the IUE representa-
tives’ previous use of Respondent’s office copier was Sears’
testimony that he had used the copier for union matters “When-
ever I needed to” and “many times” during the course of his
nearly 25 years of employment (Tr. 485, 487). However, the
only specific example Sears could provide involved copying
paperwork for his own work-related injury in December 2011,
which is a qualitatively different matter from copying grievanc-
es or union related documents (Tr. 486). Even if Sears was
copying union related documents at the time, this evidence
would be “too remote in time and too intermittent” to establish
a past practice binding upon Respondent. See Exxon Shipping
Co., 291 NLRB at 493. The evidence also establishes that
Sears routinely begins his shift hours before any of Respond-
ent’s office personnel start work, allowing him to have used the
copier in the past without their knowledge. I therefore credit
Rovello’s testimony that she never saw Sears use the copy ma-
chine (Tr. 927). Although Sears testified that he used the copi-
er many times in front of Rovello’s predecessor, Joan Marie
Bresnehan, the evidence establishes that Rovello succeeded
Bresnehan approximately 6 years ago. Thus, any use of the
copier during Bresnehan’s tenure would be similarly attenuat-

60 The collective-bargaining agreement’s provision prohibiting dis-
crimination, art. 1(F), does not encompass discrimination based upon
union activity.
ed, given the complaint’s allegation that the unilateral change
occurred in 2012 (Tr. 485).
Other evidence also militates against finding a past practice
with respect to the use of the office copier for union-related
business. The evidence establishes that the IUE had an addi-
tional printer in the maintenance department, which was used
by Representatives Agramonte and Dalton to print and copy
union-related documents (Tr. 533–534, 746). Neither
Agramonte nor Dalton testified in order to clarify the circum-
stances under which this printer was used, or to corroborate
Sears’ testimony that the IUE representatives used the office
copier on a regular basis for union-related purposes. In addi-
tion, the evidence indicates that after Marczyszak removed this
printer during his initial year of employment with the Compa-
ny, tool and die maker Louis David used his company computer
to print a notice regarding an IUE meeting (Tr. 928; R.S. Exh.
30). David was promptly issued a verbal reprimand for using a
company printer for union business (R.S. Exh. 30). Respondent
also informed Agramonte in the context of a verbal counseling
for the use of the company fax machine for personal business
that “[i]f you need to use the Fax for Union purposes, permis-
sion needs to be granted” (R.S. Exh. 8).61 All of this evidence
illustrates that Respondent had no established practice of per-
mitting the use of company office equipment for union-related
matters.
For all of the foregoing reasons, I find that the General
Counsel has not established a past practice of IUE representa-
tives’ using Respondent’s office copier for union-related pur-
poses.62 I therefore find that Respondent’s prohibiting Sears
from doing so in its May 3 written warning did not constitute a
change in terms and conditions of employment effected without
providing the IUE with notice and the opportunity to bargain.
As Respondent did not violate Section 8(a)(1) and (5) of the
Act in the manner alleged in paragraph 31 of the complaint, I
will recommend that this allegation be dismissed.
3. Alleged unilateral refusal to pay the cost of printing
the IUE contract booklet
I similarly find that the General Counsel has not met its bur-
den of proving the existence of a past practice regarding Re-
spondent’s contribution to the cost of printing an IUE contract
booklet. As a result, Respondent’s refusal to do so in 2012 did
not constitute an unlawful unilateral change.
Here again, the General Counsel offered solely the testimony
of Sears to establish a past practice with respect to Respond-
ent’s paying or sharing the cost of printing a contract booklet.

61 I find the actual discipline issued to Agramonte, and to Domeracki
for the use of the fax machine December 2010, to be less compelling
than argued by Respondent, as both Agramonte and Domeracki used
the fax machine on those occasions for personal, as opposed to union-
related, business (R.S. Exhs. 8, 31). Agramonte in particular apparently
sent a fax to the Dominican Republic. The evidence does not establish
that any of this discipline was the subject of a grievance by the IUE.
62 Because I find that no past practice has been established and there-
fore no unilateral change took place, I find it unnecessary to address
Respondent’s arguments that the IUE waived its right to bargain via art.
31 of the collective-bargaining agreement regarding any change in the
use of the office copier, and Respondent’s argument that any change
was de minimis.
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
There is no documentary evidence to establish that Respondent
has ever shared the cost of printing a booklet. Sears testified
that despite the fact that the topic has never been discussed
during negotiations, Respondent had always printed the book-
let, at its own expense, and distributed it to the bargaining unit
employees. However, Sears was vague about the number and
time period of the negotiations he actually attended, and was
only ultimately certain that he attended the 2011 sessions.
Sears also had little knowledge regarding the process culminat-
ing in the finalization of the contract after the memorandum of
understanding was signed (Tr. 508–522). In fact, Sears’ testi-
mony that Respondent funded the entire cost of printing the
booklet was less credible than Lochman and Rovello’s conten-
tion that Respondent paid only half the cost. Although IUE
Representative Humberto Leone was apparently involved in the
negotiations (one would presume as the Union’s chief spokes-
person), and dealt with Rovello afterwards in order to finalize
the agreement, he was not called to corroborate Sears. In par-
ticular, Rovello’s email to Leone declining to share the cost of
printing a contract booklet states, consistent with her testimony,
that “the union’s attorney in a response to our attorneys indicat-
ed they were comfortable with a paper agreement as well.”
(R.S. Exh. 32). The General Counsel and the IUE produced no
one to refute this contention.63
As a result, I credit the more detailed testimony of Lochman,
Respondent’s chief spokesperson, and Rovello, both of whom
contended that during the 2008 negotiations with the IUE, the
Union proposed and Respondent ultimately agreed to share the
cost of printing a contract book for the bargaining unit employ-
ees. I further credit their testimony that no such explicit
agreement was reached during the 2011 negotiations, as had
occurred during negotiations with the GMP (R.S. Exh. 5). I
credit their testimony that as a result Respondent did not acqui-
esce in Leone’s suggestion that Respondent share in the cost of
printing the contract booklet after negotiations had concluded.
For all of the foregoing reasons, the General Counsel has not
established the existence of a past practice of paying the cost of
printing an IUE contract booklet.64 As a result, its refusal to do
so after the 2011 negotiations did not constitute a unilateral
change in terms and conditions of employment in violation of
Section 8(a)(1) and (5) of the Act. I shall therefore recommend
that paragraph 32 of the complaint be dismissed.
D. Policies Allegedly Violating Section 8(a)(1)
1. Applicable legal standards
It is well settled that an employer’s maintenance of a work
rule which reasonably tends to chill employees’ exercise of
their Section 7 rights violates Section 8(a)(1) of the Act. Lafa-

63 I do not find it appropriate to make an adverse inference regarding
the existence of a past practice for sharing the cost of printing the con-
tract based upon Leone’s failure to testify, however, as there is no
evidence in the record as to his participation in negotiations prior to
2011.
64 Again, because I find that the General Counsel has not established
the existence of a past practice which Respondent unilaterally altered, I
find it unnecessary to consider Respondent’s arguments regarding
waiver and the de minimis nature of any change.
yette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d
52 (D.C. Cir. 1999). A particular work rule which does not
explicitly restrict Section 7 activity will be found unlawful
where the evidence establishes one of the following: (i) em-
ployees would “reasonably construe the rule’s language” to
prohibit Section 7 activity; (ii) the rule was “promulgated in
response” to union or protected concerted activity; or (iii) “the
rule has been applied to restrict the exercise of Section 7
rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646,
647 (2004). The Board has cautioned that rules must be afford-
ed a “reasonable” interpretation, without “reading particular
phrases in isolation” or assuming “improper interference with
employee rights.” Lutheran Heritage Village-Livonia, 343
NLRB at 646. Ambiguities in work rules are construed against
the party which promulgated them. Lafayette Park Hotel, 326
NLRB 824, 828 (1998).
None of the rules at issue here explicitly restrict Section 7
activity, and there is no evidence that they were promulgated in
response to union activity or have been applied to restrict the
exercise of Section 7 rights. As a result, the sole consideration
is whether employees would reasonably construe the language
of the rules to prohibit Section 7 activity.
2. Protecting group assets policy
Under pertinent Board law, the protecting group assets poli-
cy would not be reasonably construed by employees to restrict
Section 7 activity, and the policy therefore does not violate
Section 8(a)(1). The Board’s analysis of such confidentiality
policies has typically turned upon whether or not they explicitly
include employee or personnel information. The Board has
held that confidentiality policies which explicitly apply to per-
sonnel information are impermissibly susceptible to an interpre-
tation restricting employees from protected activities involving
their terms and conditions of employment, and therefore violate
Section 8(a)(1) of the Act. See, e.g., DirecTV U.S. DirecTV
Holdings, LLC, 359 NLRB 545, 547 (2013) (rule prohibiting
employees from discussing “job,” “DIRECTV employees” and
“employee records” could be interpreted to prohibit discussion
of terms and conditions of employment); Costco Wholesale
Corp., 358 NLRB 1100, 1115–1116 (2012) (rule prohibiting
the disclosure of confidential information, explicitly defined as
including employee names, addresses, and other personal in-
formation, overly broad). Confidentiality policies which do not
by their terms encompass employee information, however, are
not reasonably construed to prohibit Section 7 activity. See
Super K-Mart, 330 NLRB 263, 263–264 (1999) (rule prohibit-
ing “disclosure” of “Company business and documents” not
amenable to an interpretation which would restrict Sec. 7 ac-
tivity); Lafayette Park Hotel, 326 NLRB at 824, 826 (rule pro-
hibiting “Divulging Hotel-private information to employees or
other individuals or entities that are not authorized to receive” it
not unlawfully restrictive).
Respondent’s protecting group assets policy is lawful under
this standard. As in Super K-Mart and Lafayette Park Hotel,
the protecting group assets rule does not explicitly encompass
employee or personnel information as part of its definition of
“confidential information” or “knowledge, decision or any
information about” Respondent “which may in any way preju-
BURNDY, LLC 31
dice” Respondent’s interest. Furthermore, the context of these
specific statements militates against an interpretation that
would tend to restrict Section 7 activity. The paragraph of the
rule immediately preceding the disputed language states that
“preserving, protecting and responsibly using company assets
including intellectual property is essential to remain competi-
tive,” so that “we must take all appropriate measures to protect
them” and “to respect third parties’ proprietary information
rights.” Thus, the disputed language is prefaced by a statement
affirming Respondent’s “substantial and legitimate interest in
maintaining the confidentiality” of its intellectual property and
that of its customers and suppliers. Lafayette Park Hotel, 326
NLRB at 826; see also Super K-Mart, 330 NLRB at 263–264.
In this context, the disputed language would more reasonably
be understood by employees as applying to intellectual property
and other confidential information pertaining to the production
process or the products themselves, and not to the terms and
conditions of their employment.
The General Counsel contends that the portion of the rule re-
quiring employees to “safeguard and not disclose any
knowledge, decision or information . . . which may in any way
prejudice the interests of” Respondent would be reasonably
interpreted to apply to protected concerted activities involving
terms and conditions of employment. However, the Board has
in the past rejected an approach which would automatically
construe Section 7 or union activity as inimical to an employ-
er’s interest. See Lafayette Park Hotel, 326 NLRB at 824–826
(declining to find that rule prohibiting conduct “that does not
support [employer’s] goals and objectives” could reasonably be
interpreted to include union activity).
For all of the foregoing reasons, I find that Respondent’s
protecting group assets policy would not reasonably be inter-
preted by employees as prohibiting Section 7 activity. I there-
fore find that Respondent’s maintenance of the protecting
group assets policy did not violate Section 8(a)(1) of the Act,
and will recommend that paragraph 12(a) of the complaint be
dismissed.
3. Dress code policy
It is well settled that Section 7 protects the right of employ-
ees to wear union insignia in the work place. Republic Aviation
Corp. v. NLRB, 324 U.S. 793 (1945); W San Diego, 348 NLRB
372, 373 (2006). An employer may restrict employees from
wearing union insignia only when justified by “special circum-
stances,” such as when the display of union insignia might
“jeopardize employee safety, damage machinery or products,
exacerbate employee dissension,” “unreasonably interfere with
a public image that the employer has established,” or impair
“decorum and discipline among employees.” Komatsu Ameri-
ca Corp., 342 NLRB 649, 650 (2004). It is the employer’s
burden to establish special circumstances which justify a re-
striction on the display of union insignia. W San Diego, 348
NLRB at 373.
Respondent’s dress code does not explicitly prohibit the dis-
play of union insignia or require special permission when em-
ployees wish to wear certain items typically associated with
union activity, such as buttons or pins. Nor is there any evi-
dence that Respondent has interpreted the dress code to prohibit
employees from wearing union insignia. In fact, the evidence
establishes that in November 2008 employees wore red shirts
on several occasions pursuant to a Notice posted on the IUE
bulletin board in order to express their dissatisfaction with Re-
spondent’s management. There is no evidence that any em-
ployee was disciplined for violating the dress code as a result of
this incident.65
The General Counsel nevertheless contends that Respond-
ent’s dress code policy violates Section 8(a)(1) because of the
statement that Respondent “reserves the right to address an
employee’s attire, jewelry, or any aspect of grooming” which it
“believes to be . . . not promoting customer good will or the
subject of business disruption or complaint.” The General
Counsel argues that the policy is overbroad because this lan-
guage could be reasonably interpreted by employees as prohib-
iting the wearing of union insignia. However, the Board has
found that similar language in employer policies is not suscep-
tible to an interpretation encompassing Section 7 activities. For
example, in Lafayette Park Hotel, supra, the Board held that a
rule prohibiting unlawful or improper off-duty conduct “which
affects the . . . hotel’s reputation or good will in the communi-
ty” did not violate Section 8(a)(1), as the rule would be reason-
ably interpreted to encompass only “serious misconduct, not
conduct protected by the Act.” 326 NLRB at 826–827. Simi-
larly, in Laborers Local 113 (Michels Pipeline Construction),
338 NLRB 480, 480–481 (2002), the Board held that a rule
prohibiting “disruptive” conduct was permissible, in that it
would not reasonably restrict the employees’ exercise of their
Section 7 rights. In these cases, the Board has interpreted such
language as pertaining to legitimate business concerns and
“serious misconduct,” as opposed to protected concerted activi-
ty. Given the evidence in the record here establishing that em-
ployees have worn clothing to support a particular union initia-
tive without disciplinary repercussions, there is no basis for
finding that Respondent’s dress code policy would be reasona-
bly interpreted to prohibit the display of union insignia. See,
e.g., Labores Local 113, 338 NLRB at 481 (rule prohibiting
certain off-duty conduct permissible where record contained no
evidence that Respondent enforced it against employees for
engaging in protected activity); Lafayette Park Hotel, 326
NLRB at 827 (same).
This conclusion is further supported by the structure of the
dress code policy and the context for the language that the Gen-
eral Counsel contends renders the rule unlawful. The portion of
the policy preceding the disputed language repeatedly refers to
“reasonable standards for business attire,” “appropriate” dress
given the employee’s responsibilities, and “safe practices.”
Immediately prior to the language stating that Respondent may
“address” attire, jewelry, or grooming not “promoting customer
good will or the subject of business disruption or complaint,”
the rule refers to such aspects of personal appearance which
may be “unsafe,” “distracting,” and “unsanitary.” Overall, this

65 Given the facial neutrality of Respondent’s dress code and the lack
of evidence that it was disparately enforced, I decline to apply the “spe-
cial circumstances” test pursuant to Republic Aviation and its progeny,
as opposed to the work rule analysis articulated in Lutheran Heritage
Village-Livonia.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
context indicates that the dress code policy was engendered by
Respondent’s legitimate concerns with safety and appropriate
business attire, as opposed to precluding employees from exer-
cising their Section 7 rights.
For all of the foregoing reasons, I find that Respondent’s
dress code policy is not reasonably susceptible to an interpreta-
tion which would prohibit employees from displaying union
insignia or otherwise engaging in protected activity. I therefore
find that the dress code policy did not violate Section 8(a)(1) of
the Act, and will recommend that paragraph 12(b) of the com-
plaint be dismissed.
4. Public statements policy
Respondent’s Public Statements policy states that inquiries
by the public media, such as “newspapers, trade publications”
and “radio and television stations” must be “referred to and
handled only by or at the direction of the Vice President of
Human Resources for BURNDY LLC or the Legal Department
or both.” I find that this policy would reasonably be interpreted
as prohibiting employees from engaging in Section 7 activity,
and that Respondent therefore violated Section 8(a)(1) by main-
taining it.
It is well settled that employee communications with the
news media regarding labor disputes are protected under Sec-
tion 7 of the Act. DirecTV U.S. DirecTV Holdings, LLC, 359
NLRB 545, 545; Trump Marina Hotel Casino, 354 NLRB
1027, 1029 (2009), 355 NLRB 585 (2010) (three-member
Board), enfd. 435 Fed. Appx. 1 (D.C. Cir. 2011); Crowne Plaza
Hotel, 352 NLRB 382, 386 fn. 21 (2008). The Board has also
held that an employer may not require that employees obtain
supervisory or managerial approval prior to engaging in Section
7 activity. DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB
545, 546; Brunswick Corp., 282 NLRB 794, 795 (1987). Re-
spondent’s Public Statements policy effectively precludes em-
ployees from responding to any media inquiries at all, unless
specifically directed to do so by management, and therefore
runs afoul of these principles. The policy’s prohibition against
responding to media inquiries is articulated in the context of
“the importance of communications with the news media” and
the goal of ensuring “that all information about the Company
and its business and operations provided to the media is accu-
rate and consistent with the Company’s policies.” However,
these statements of purpose are inadequate to ameliorate the
unlawful prohibition against employee communications with
the news media that Respondent has not explicitly authorized.
See DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB 545,
545–546 fn. 4 (unlawful policy ostensibly intended to “ensure
the company presents a united, consistent voice to a variety of
audiences”). Nor is there any attempt made in the policy to
distinguish between activity protected under Section 7 and
unprotected communications, such as maliciously false state-
ments. Id., slip op. at 545–546. As a result, Respondent’s pub-
lic statements policy is overbroad, and could reasonably be
interpreted by employees as prohibiting activity protected by
Section 7 of the Act.
For all of the foregoing reasons, I find that Respondent’s
maintenance of the public statements policy violated Section
8(a)(1), as alleged in paragraph 12(c) of the complaint.
5. Policy prohibiting solicitation (general rule
violations #6)
The General Counsel alleges that Respondent’s policy pro-
hibiting solicitation violates Section 8(a)(1) of the Act in that it
prohibits solicitation “for any purpose on Company time, ex-
cept when authorized to do so for Company-sponsored pro-
grams.” The Board has held that a rule prohibiting solicitation
on “company time” is overbroad and presumptively invalid, as
it could reasonably be construed as prohibiting solicitation
during break times or periods when employees are not actually
working. See, e.g., A.P. Painting & Improvements, Inc., 339
NLRB 1206, 1207 (2003); Republic Aviation Corp. v. NLRB,
324 U.S. 793 (1945).
Respondent contends that the no-solicitation language quot-
ed above is not unlawful, in that it refers to a statement of the
no-solicitation policy contained in its employee handbook
which provides as follows:
Other than that which is approved by the Company, employ-
ees may not distribute literature or printed materials of any
kind, sell merchandise, solicit financial contributions, or solic-
it for any other cause during working time. Working time in-
cludes the working time of both the employee doing the solic-
itation or distribution or posting and the employee to whom it
is being directed. Furthermore, employees may not distribute
non-approved literature or printed material of any kind in
working areas at any time. This policy also prohibits non-
approved solicitations via the Company’s e-mail and other
electronic and telephonic communication systems.
Respondent argues that its descriptions of the no-solicitation
policy are similar to those found permissible by the Board in
Mediaone of Greater Florida, Inc., 340 NLRB 277, 277–278
(2003). In that case, the employer’s handbook contained a
summary of its policies entitled, “Business Integrity and Ethics
Policies at a Glance,” which briefly summarized each policy
and referred the reader to the specific page containing a state-
ment of the policy in full. Mediaone of Greater Florida, Inc.,
340 NLRB at 277. The paraphrased version of the no-
solicitation policy—”You may not solicit employees on com-
pany property”—was overbroad. However, the complete
statement of the policy to which it referred—”You may not
solicit another employee in work areas during work time”—
complied with the law. Because the brief summary of the no-
solicitation policy explicitly referred to the page containing the
complete one, the Board found that “a reasonable employee
would readily disregard” the unlawful statement of the rule
contained in the summary, and would rely on the policy’s full,
and legally permissible, explication. Mediaone of Greater
Florida, Inc., 340 NLRB at 278. As a result, the policy overall
was not presumptively invalid. Mediaone of Greater Florida,
Inc., 340 NLRB at 277–278.
The employee handbook and general rule violations at issue
here, however, are not comparable to the two iterations of the
no-solicitation rule at issue in Mediaone of Greater Florida,
Inc. Here, the presumptively invalid formulation of the no-
BURNDY, LLC 33
solicitation rule is contained not in a summary of policies, but
in a list of “General Rule Violations” prefaced by the following
statement:
Any violation of a Company Policy is cause for disciplinary
action. The General Rules listed below cover specific infrac-
tions for emphasis. Single incidents in violation of a General
Rule are cause for disciplinary action. The nature of the dis-
cipline will vary depending on the circumstances involved,
and in some cases, the immediate termination of an employ-
ee’s employment may be appropriate.
Furthermore, the general rule violations contain no specific
reference directing the reader to any other portion of the em-
ployee handbook, as was the case in Mediaone of Greater Flor-
ida, Inc. As a result, there is no reason for an employee to con-
clude that the version of Respondent’s no-solicitation policy
contained elsewhere in the handbook would apply, as opposed
to the facially overbroad policy listed as one of the general rule
violations. An employee would reasonably interpret the hand-
book overall as stating that violating the unlawful statement of
the policy would result in disciplinary action. I therefore find
that Mediaone of Greater Florida, Inc. is distinguishable, and
that Respondent’s no-solicitation policy is presumptively inva-
lid.
Nor has Respondent adduced evidence sufficient to satisfy
its burden to show that it “communicated or applied the rule in
a way that conveyed a clear intent” to permit solicitation in
during nonworking time. See Teletech Holdings, Inc., 333
NLRB 402, 403 (2001) (employer bears the burden to prove
that it communicated or applied a presumptively invalid rule in
a lawful manner); Our Way, Inc., 268 NLRB 394 (1983). Nor-
ton’s testimony that he passed around bereavement cards for
employees to sign during breaktime hardly establishes that
Respondent applied the facially invalid rule in a permissible
manner. In fact, Rovello testified that she concluded that Nor-
ton was engaged in nonwork-related activity on worktime, and
consequently issued the February 10 verbal counseling to him,
because he was carrying the manila folder in which he kept
these cards. Furthermore, Respondent’s contention that the
January 3 petition and other documents protesting manage-
ment’s conduct were signed during non worktimes is pure
speculation. As a result, I find that Respondent has not pre-
sented evidence adequate to substantiate a claim that it actually
applied the presumptively invalid no-solicitation policy in a
lawful manner.
For all of the foregoing reasons, I find that Respondent’s
general rule violations #6 constitutes an overly broad rule
against solicitation, maintained by Respondent in violation of
Section 8(a)(1) of the Act, as alleged in paragraph 12(d) of the
complaint.
CONCLUSIONS OF LAW
1. The Respondent, Burndy, LLC, is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The GMP and the IUE are labor organizations within the
meaning of Section 2(5) of the Act.
3. By disparately enforcing a “no-talk” rule to prohibit dis-
cussions involving union matters while permitting discussions
of other nonwork-related matters on worktime, Respondent
violated Section 8(a)(1) of the Act.
4. By threatening employees with discipline in retaliation
for their union activity, Respondent violated Section 8(a)(1) of
the Act.
5. By threatening employees with unspecified reprisals in
retaliation for their union activity, Respondent violated Section
8(a)(1) of the Act.
6. By creating the impression that employees’ union activi-
ties were under surveillance, Respondent violated Section
8(a)(1) of the Act.
7. By maintaining an public statements policy which prohib-
its employees from responding to media inquiries without prior
approval and limits the employees authorized to speak to the
media, Respondent violated Section 8(a)(1) of the Act.
8. By maintaining general rule violations 6 which prohibits
solicitation for any unauthorized purpose on company time,
Respondent violated Section 8(a)(1) of the Act.
9. By harassing employees in retaliation for their union ac-
tivity, Respondent violated Section 8(a)(1) and (3) of the Act.
10. By issuing the following discipline to the named em-
ployees on the following dates in retaliation for their union
activity, Respondent violated Sections 8(a)(1) and (3) of the
Act:
Name Discipline
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
11. By suspending Robert Sears on May 29, 2012, in retalia-
tion for his union activity, Respondent violated Section 8(a)(1)
and (3) of the Act.
12. By disparately applying general rule 9 prohibiting loaf-
ing or other abuse of time in retaliation for employees’ union
activity, Respondent violated Section 8(a)(1) and (3) of the Act.
13. By imposing more onerous working conditions on and
monitoring employees in retaliation for their union activity,
Respondent violated Section 8(a)(1) and (3) of the Act.
14. Respondent has not violated the Act in any other manner.
15. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the Act’s purposes.
Having found that Respondent violated the Act by suspend-
ing Robert Sears, Respondent shall be ordered to make Sears
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whole for any loss of earnings he may have suffered as a result
of its unlawful conduct, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as set forth in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). Re-
spondent shall also be required to remove from its files all ref-
erences to Sears’ unlawful suspension, written warning, verbal
warning, and counseling, and to remove from its files all refer-
ences to the counselings issued to Thomas Norton, Michael
Vaast, Daniel Domeracki, Michael Cavaluzzi, Robert Hing, and
Radames Velez, and to notify these employees in writing that
this has been done and that the discipline shall not be used
against them. Finally, Respondent shall be ordered to post a
notice, in English and Spanish, informing its employees of its
obligations herein.
Upon the foregoing findings of fact and conclusions of law,
and upon the entire record, I issue the following recommend-
ed66
ORDER
The Respondent, Burndy, LLC, Bethel, Connecticut, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disparately enforcing a “no talk” rule to prohibit discus-
sions involving union matters while permitting discussions of
other nonwork-related matters on worktime.
(b) Threatening employees with discipline in retaliation for
their union activity.
(c) Threatening employees with unspecified reprisals in re-
taliation for their union activity.
(d) Creating the impression that employees’ union activities
are under surveillance.
(e) Maintaining a public statements policy which prohibits
employees from responding to media inquiries without prior
approval, and limits the employees authorized to speak with the
media.
(f) Maintaining general rule violations 6 which prohibits so-
licitation for any unauthorized purpose on company time.
(g) Harassing employees in retaliation for their union activi-
ty.
(h) Disciplining employees in retaliation for their union ac-
tivity.
(i) Suspending employees in retaliation for their union activ-
ity.
(j) Disparately applying general rule 9 prohibiting loafing or
other abuse of time in retaliation for employees’ union activity.
(k) Imposing more onerous working conditions on and mon-
itoring employees in retaliation for their union activity.
(l) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

66 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(a) Make whole with interest Robert Sears for any lost wag-
es he may have suffered as a result of Respondent’s unlawful
discrimination against him, in the manner set forth in the reme-
dy section of this decision.
(b) Within 14 days of the date of this Order, remove from all
files any reference to the following discipline issued to the
named employees, and within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the discipline
will not be used against them in any way:
Name Discipline
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
Robert Sears May 29, 2012 suspension
(c) 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay,
if any, due under the terms of this Order.
(d) Rescind the public statements policy and general rule vi-
olations 6.
(e) Furnish all current employees with inserts or amend-
ments to the current employee handbook that (1) advise em-
ployees that the unlawful rules have been rescinded, or (2) pro-
vide the language of lawful rules; or publish and distribute
revised employee handbooks that (1) do not contain the unlaw-
ful rules, or (2) provide the language of lawful rules.
(f) Within 14 days after service by the Region, post at the
facility at the Bethel, Connecticut, copies of the attached notice
marked “Appendix.”67 Copies of the notice, on forms provided
by the Regional Director for Region 1, after being signed by
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. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site and/or other
electronic means if Respondent customarily communicates with
its employees by such means. Notices shall be posted and, if
pertinent, electronically distributed, in English and Spanish.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other

67 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.”
BURNDY, LLC 35
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since September 1, 2011.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated: Washington, DC July 31, 2013
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 suspend you because you engage in activities
on behalf of the International Union of Electronic, Electrical,
Technical, Salaried and Machine Workers, IUE/CWA Commu-
nications Workers of America (IUE).
WE WILL NOT discipline you because you engage in activities
on behalf of the IUE or the Glass, Molders, Pottery, Plastics &
Allied Workers International Union (GMP).
WE WILL NOT disparately apply our general rule 9 prohibiting
loafing or other abuse of time to you in retaliation for your
activities on behalf of the IUE or the GMP.
WE WILL NOT impose more onerous working conditions on
you or monitor you in retaliation for your activities on behalf of
the IUE.
WE WILL NOT harass you in retaliation for your activities on
behalf of the IUE.
WE WILL NOT threaten you with discipline in retaliation for
your support for or activities on behalf of the GMP.
WE WILL NOT threaten you with unspecified reprisals in retal-
iation for your support for or activities on behalf of the GMP.
WE WILL NOT create the impression that your activities on
behalf of the GMP are under surveillance.
WE WILL NOT apply a rule against talking during worktime to
prohibit conversations about the IUE or the GMP, when we
permit employees to talk about other nonwork-related matters.
WE WILL NOT maintain a public statements policy which pro-
hibits employees from responding to media inquiries without
prior approval, and limits which employees can respond to
media inquiries.
WE WILL NOT maintain a general rule violation which prohib-
its solicitation for any unauthorized purpose on company time.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
WE WILL make Robert Sears whole for any loss of earnings
and other benefits suffered as a result of his suspension on May
29, 2012, less any net interim earnings, plus interest com-
pounded daily.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the following discipline
issued to the named employees, and within 3 days thereafter,
notify them in writing that this has been done and that the dis-
cipline will not be used against them in any way:
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
Robert Sears May 29, 2012 suspension
WE WILL rescind the public statements policy and general
rule violations 6 from the employee handbook.
WE WILL furnish all current employees with inserts or
amendments to the current employee handbook that (1) advise
employees that the public statements policy and general rule
violations 6 have been rescinded, or (2) provide the language of
lawful rules; or publish and distribute revised employee hand-
books that (1) do not contain the public statements policy and
general rule violations 6, or (2) provide the language of lawful
rules.
BURNDY, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/34–CA–065746 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.