Dlubak Corp

National Labor Relations Board - Board Decisions

Jul 6, 1992

307 N.L.R.B. 1138 (N.L.R.B. 1992)

1138
307 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
The General Counsel has filed a motion to strike the Respondent’s
exceptions in part because they do not comply with Sec. 102.46 of
the Board’s Rules and Regulations. We deny the motion to strike.
In finding that the bonuses given to employees were unlawful,
Member Devaney finds it unnecessary to rely on B & D Plastics,
302 NLRB 245 (1991), which was cited by the judge.
2 In excepting to the judge’s finding that three employees did not
validly revoke their signed authorization cards, the Respondent relies
on, inter alia, Struthers-Dunn, Inc. v. NLRB, 574 F.2d 796 (3d Cir.
1978). We find that case distinguishable. In Struthers-Dunn, the rev-
ocations occurred ‘‘before any unfair labor practice was committed’’
and were ‘‘free and voluntary expressions of choice, uninfluenced by
any activity by the employer.’’ Id. at 801. By contrast, in the instant
case, the judge found, and we agree, that the attempted revocations
‘‘were the product of Respondent’s unfair labor practices.’’ We find
no merit in the Respondent’s argument, on exceptions, that the
closeness in time of the card signing and the expressions of intent
to revoke shows that the three employees’ initial decision to sign the
cards was not deliberate or that the Respondent’s unfair labor prac-
tices played no role in the attempted revocations. In our view, the
most likely inference is that the employees’ willingness to sign cards
that clearly stated their support for the Union, and thereby to risk
inviting the fate of those already discriminatorily discharged or laid
off, waned on reflection about possible unlawful consequences.
In agreeing with the judge that the Union had majority support on
November 20, 1988, we find it unnecessary to pass on whether or
not Janet Toy’s card should be counted. Without Toy’s card, the
Union had 37 cards, a majority in the unit which numbered 73 on
November 20. We also find it unnecessary to rely on the judge’s
findings with respect to manifestations of support for, or opposition
to, the Union thereafter.
We agree with the judge that a bargaining order to remedy the Re-
spondent’s misconduct is warranted under NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). However, we find it unnecessary to pass
on the judge’s determination that this case falls into the first cat-
egory of cases identified there by the Supreme Court. The Respond-
ent’s conduct clearly falls at least into the second category of cases
under Gissel and meets the Gissel standards for issuance of a bar-
gaining order for that category.
3 We shall amend the judge’s Conclusions of Law and modify his
recommended Order to conform to his findings. We shall also sub-
stitute a new notice to employees.
Dlubak Corporation and Aluminum, Brick and
Glass Workers International Union, AFL–
CIO–CLC. Cases 6–CA–21319, 6–CA–21538, 6–
CA–21570, and 6–RC–10106
July 6, 1992
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 25, 1991, Administrative Law Judge
William A. Pope II issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief and
a motion to strike Respondent’s exceptions in part. The
Charging Party filed a response to the Respondent’s
brief in support of exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 3.
‘‘3. By disparaging employees who joined, sup-
ported, and or assisted the Union; threatening employ-
ees with plant closure if they chose the Union as their
collective-bargaining representative; coercively interro-
gating employees about their union activities and the
union activities of other employees; threatening em-
ployees that bargaining would begin at zero if they
chose a union as their collective-bargaining representa-
tive; issuing a notice restricting the movement of em-
ployees within the plant because of their union activi-
ties; threatening employees with reduction in wages
and benefits, loss of jobs, discharge or layoff, or with
other unspecified reprisals because of their union ac-
tivities; threatening that employees on layoff would not
be recalled because of their union activities; threat-
ening employees with the inevitability of strikes if they
chose a union as their collective-bargaining representa-
tive; and creating the impression among employees
that their union activities were under surveillance, Re-
spondent violated Section 8(a)(1) of the Act.’’
2. Substitute the following for Conclusion of Law 6.
‘‘6. Since November 20, 1988, the Union has been
the exclusive bargaining agent, within the meaning of
Section 9(a) of the Act, representing a majority of the
employees in the following appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Re-
spondent at its Freeport, Pennsylvania, and
Kittanning, Pennsylvania facilities; excluding cas-
ual employees, office clerical employees and
guards, professional employees and supervisors as
defined in the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Dlubak Corporation, Freeport, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
1139DLUBAK CORP.
‘‘(c) Interrogating employees about their own union
activities and those of other employees, and dispar-
aging employees who join, support, or assist a union.’’
2. Substitute the following for paragraph 1(d).
‘‘(d) Threatening employees with a reduction in
wages and benefits, loss of jobs, discharge, layoff, fail-
ure to recall from layoff, closure of the Respondent’s
plants, and other unspecified reprisals if the employees
select a union as their collective-bargaining representa-
tive, or because they engage in union activities.’’
3. Add the following as paragraph 2(f).
‘‘(f) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 6 shall, within 14 days from the date of this Deci-
sion, Order and Direction, open and count the ballot of
William Plunkard. The Regional Director shall then
serve on the parties a revised tally of ballots.
If the revised tally shows that the Union has re-
ceived a majority of the valid ballots cast, the Regional
Director shall issue a certification of representative. If
the revised tally shows that the Union has not received
a majority of the valid ballots cast, the Regional Direc-
tor shall set aside the election and dismiss the rep-
resentation case.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT create the impression that your union
activities are under surveillance.
WE WILL NOT pay bonuses to you in order to dis-
courage you from supporting the Aluminum, Brick and
Glass Workers International Union, AFL–CIO–CLC or
without bargaining with the Union as the exclusive
collective-bargaining representative of our unit em-
ployees.
WE WILL NOT question you about your union activi-
ties or about the union activities of your fellow em-
ployees.
WE WILL NOT disparage employees who join, sup-
port, or assist a union.
WE WILL NOT threaten you with plant closure in
order to discourage you from engaging in union activi-
ties.
WE WILL NOT threaten you with reduction in wages
and benefits, loss of jobs, discharge, layoff, or other
reprisals in order to discourage you from engaging in
union activities.
WE WILL NOT threaten that you will not be recalled
from layoff because of your union activities.
WE WILL NOT discharge you or lay you off or refuse
to recall you from layoff because you engage in union
activities.
WE WILL NOT restrict your movement within the
plant because you engage in union activities.
WE WILL NOT threaten you with inevitability of
strikes if the employees choose a union to be their col-
lective-bargaining representative.
WE WILL NOT threaten you that bargaining will
begin at zero if the employees choose a union to be
their collective-bargaining representative.
WE WILL NOT transfer you from one of our plants
to the other because of your union activities.
WE WILL NOT issue written warnings to you for en-
gaging in union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer William Plunkard, Brion Smith,
Mark Kijowski, Kevin Dosch, Nick Kuchta, Jeffrey
Copeland, Ron Vantine, and Mark Gorog immediate
and full reinstatement to their former positions or, if
those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and
WE WILL make them whole for any losses they have
incurred as a result of the discrimination against them,
plus interest.
WE WILL remove from our files any reference to the
unlawful discharge of William Plunkard, the unlawful
layoffs of Brion Smith, Mark Kijowski, Kevin Dosch,
Nick Kuchta, Jeffrey Copeland, Ron Vantine, and
Mark Gorog, the unlawful written warning issued to
Bruce Offredi, and the unlawful transfer of Tracy Reu-
ter, and notify them in writing that this had been done
and that the discharge, layoffs, written warning, and
transfer will not be used against them in any way.
WE WILL, on request, bargain with the Aluminum,
Brick and Glass Workers International Union, AFL–
CIO–CLC as the exclusive representative of the em-
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint in Case 6–CA–21319 was issued on December 20,
1988. An order consolidating Cases 6–CA–21538 and 6–CA–21570
was issued on March 24, 1989. An order directing hearing on objec-
tions and challenged ballots and notice of hearing was issued in
Case 6–RC–10106 on March 28, 1989. An order further consoli-
dating cases was issued in Cases 6–CA–21319, 6–CA–21538, 6–
CA–21570, and 6–RC–10106 on March 28, 1989. A consolidated
amended complaint and notice of hearing was issued in Cases 6–
CA–21319, 6–CA–21538, 6–CA–21570, and 6–RC–10106 on April
25, 1989. The consolidated amended complaint was further amended
at the hearing on May 22, 1989, to delete subparagraph (b) of para-
graph 11; to add the words, ‘‘On or about January 9, 1989’’ to sub-
paragraph (d) of paragraph 14; and to change subparagraph (b) of
paragraph 13 to read, ‘‘on or about January 9, 1989, threatened its
employees with inevitability of strike if the Union came in.’’
2 The glass division’s pan shop apparently normally operated with
two shifts.
ployees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time production and
maintenance employees employed by the Re-
spondent at its Freeport, Pennsylvania, and
Kittanning, Pennsylvania facilities; excluding cas-
ual employees, office clerical employees and
guards, professional employees and supervisors as
defined in the Act.
DLUBAK CORPORATION
Suzanne C. McGinnis, Esq. and Sandra Beck Levine, Esq.,
for the General Counsel.
E. Donald Ladov, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
R. Michael LaBelle, Esq., of Washington, D.C., for the
Charging Party.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a con-
solidated amended complaint,1 dated April 25, 1989, the Re-
gional Director of Region 6 of the National Labor Relations
Board alleges that the Respondent violated Section 8(a)(1) of
the National Labor Relations Act by disparaging, shoving,
threatening, interrogating, and terminating employees because
they joined, supported or assisted a union; that the Respond-
ent violated Section 8(a)(1) and (3) of the Act by termi-
nating, laying off, and failing to recall employees, and by
granting bonuses of $500 and $50, and by issuing written
warnings and transferring employees, all because of their
union activities and in order to discourage employees from
engaging in union activities; and that Respondent violated
Section 8(a)(1) and (5) of the Act by failing and refusing to
recognize and bargain with the Union; by unilaterally grant-
ing its employees the $50 bonus; and by transferring an em-
ployee. Consolidated for hearing is the Regional Director’s
order directing hearing on objections and challenged ballots
concerning an election by secret ballot conducted on January
12, 1989, pursuant to a Stipulated Election Agreement ap-
proved on November 17, 1988. The original charge in Case
6–CA–21319 was filed on October 12, 1988; an amended
charge in Case 6–CA–21319 was filed on December 19,
1988; the original charge in Case 6–CA–21538 was filed on
January 18, 1989; the original charge in Case 6–CA–21570
was filed on February 2, 1989; amended charges in Cases 6–
CA–21570 and 6–CA–21538 were filed on March 23, 1989;
objections to conduct affecting the election were filed by the
Petitioner in Case 6–RC–1016 on January 19, 1989; and, ob-
jections to election were filed by the Employer on January
19, 1989. Trial was held before Administrative Law Judge
William A. Pope II, on May 22 through 26, 1989, August
21 through 24, 1989, and September 18 through 21, 1989,
in Kittanning, Pennsylvania, and on October 11, 1989, in
New Kensington, Pennsylvania.
Background
Dlubak Corporation is a closely held business engaged in
manufacturing curved glass for architectural applications, dis-
play cases, and for use in the transportation industry. The
Company also manufactures deco glass, engraved glass, and
specialty glass. Roughly 80 percent of its business is glass
bending, a process involving building molds and bending
glass to customers’ specifications; 20 percent is aluminum
bending, which involves bending aluminum extrusions, for
use as glass frames, to customers’ specifications. It operates
two manufacturing facilities, plant 1, its main plant, located
in Freeport, Pennsylvania, and a smaller plant, plant 2, at
which only glass bending is performed, located in West
Kittanning, Pennsylvania.
All the stock of Dlubak Corporation is held by Frank
Dlubak and his wife. Frank Dlubak is the Company’s presi-
dent, and heads its marketing activities. David Bazzano is the
Company’s chief executive officer, and is responsible for its
day-to-day operations, as well as its personnel and labor rela-
tions policies and decisions. He is a member of a three-per-
son management group which also includes David Passarelli,
vice president of technology, and Brian Henry, vice president
of finance.
Functionally, the Company’s operations are broken down
into glass and aluminum divisions. Functions performed in
the glass division include glass cutting, glass bending, glass
lamination, construction of pans or molds (made in the pan
shop) used to bend glass, boxing, and shipping. Functions
performed in the aluminum division include setting up bends,
bending aluminum frames to customers’ specifications, and
inspection and shipping of the finished bends. In addition to
production employees working in the glass and aluminum di-
visions, Dlubak Corporation also employs, among others, in-
spection personnel, maintenance personnel, accounting and
clerical personnel, sales representatives, and customer service
representatives. During the period of time at issue in this
case, from October 1988 to March 1989, Dlubak Corporation
appears to have employed a work force of from 90 to 100
persons. Its payroll for February 3, 1989, shows 92 active
paid employees, and 5 active employees not paid.
Dlubak Corporation normally operated three production
shifts in the glass and aluminum divisions.2 Production em-
ployees, working under crew chiefs, were assigned to rotat-
ing shifts: the daylight shift from 7 a.m. to 3 p.m., the after-
1141DLUBAK CORP.
3 Testimony established that Porter is a supervisor in the glass di-
vision of the Company.
4 The Union first requested recognition as bargaining representa-
tive on October 21, 1988.
5 Excluded from the bargaining unit were office clerical employ-
ees, guards, and professional employees, and supervisors, as defined
in the Act.
6 The transfer of Tracy Reuter and granting of a $50 bonus on
February 16, 1989, are alleged to be mandatory subjects of bar-
gaining, and, by failing to bargain with the Union concerning these
matters, Respondent is alleged to have violated Sec. 8(a)(5), as well
as Sec. 8(a)(1) and (3).
noon shift from 3 to 11 p.m., and the night shift from 11
p.m. to 7 a.m.
From July 1988 to April 1989, Benjamin M. Claypool was
the Company’s production manager, or plant manager, super-
vising both glass and aluminum bending operations. The su-
pervisor of the glass lamination department was Martha
(Marti) Patton. The parties stipulated that Dan Porter is also
a supervisor.3
In late September 1988, the Aluminum, Brick and Glass
Workers International Union (the Charging Party) began an
organizational campaign at the Dlubak Corporation. The
Union’s International representative assigned to the campaign
was John E. Shinn. His first meeting with employees of
Dlubak Corporation occurred on September 30, 1988.
On October 24, 1988, the Union filed a petition4 for cer-
tification as representative of all of Dlubak Corporation’s
production and maintenance employees for collective-bar-
gaining purposes.5 On November 14, 1988, the parties en-
tered into a Stipulated Election Agreement providing for a
secret-ballot election to be held under the supervision of the
Regional Director of Region 6 of the National Labor Rela-
tions Board at agreed-on times of day on January 12, 1989.
An election was held on the the agreed day.
Issues
a. Complaint. The consolidated amended complaint, as fur-
ther amended during the hearing, alleges that Dlubak Cor-
poration committed numerous violations of Section 8(a)(1),
(3), and (5) of the Act during the period from on or about
October 6, 1988, and, with regard to some of the alleged vio-
lations, continuing to the present.
The 8(a)(1) violations include disparaging employees who
joined, supported, and/or assisted the Union; physically ac-
costing employees because they joined, supported, and/or as-
sisted the Union; threatening employees with plant closure if
they chose the Union as their collective-bargaining represent-
ative; interrogating employees regarding their union member-
ship, activities, and sympathies, and the union membership,
activities, and sympathies of their fellow employees; threat-
ening employees that bargaining over wages and benefits
would begin from zero if the employees chose the Union as
their collective-bargaining representative; issuing a notice re-
stricting the movement of its employees in the plant; threat-
ening employees with layoffs and other unspecified reprisals
if they chose the Union as their collective-bargaining rep-
resentative; threatening that employees on layoff would not
be recalled; threatening employees with the inevitability of
strikes, because they joined, supported, or assisted the Union;
and creating the impression among employees that their
union activities were under surveillance.
The 8(a)(1) and (3) violations, all allegedly committed be-
cause the employees engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, include discharging employee William Plunkard; lay-
ing off employees Brion Smith, Mark Kijowski, Kevin
Dosch, Nick Kuchta, Jeffrey Copeland, Ron Vantine, and
Mark Gorog; failing and refusing to recall its employees
Brion Smith and Kevin Dosch, and failing and refusing to
recall employee Mark Kijowski until January 14, 1989; giv-
ing its employees a bonus of $500; issuing a written warning
to employee Bruce Offredi; giving its employees a $50
bonus (also alleged to be a violation Section 8(a)(5)); and
transferring employee Tracy Reuter from its Freeport facility
to its Kittanning, Pennsylvania facility (also alleged to be a
violation of Section 8(a)(5)).
The 8(a)(1) and (5) violations include refusing to recog-
nize or bargain with the Union, as the exclusive collective-
bargaining representative of the unit, on matters relating to
wages, hours, and other terms and conditions of employment
which are mandatory subjects for the purpose of collective
bargaining.6
The complaint further alleges that since on or about No-
vember 20, 1988, and/or by March 14, 1989, a majority of
Respondents employees in the designated unit selected the
Union as their representative for collective-bargaining pur-
poses, and that because unfair labor practices committed by
Respondent are so serious and substantial in character that
the chances of conducting a fair rerun election are slight,
issuance of a bargaining order, rather than reliance upon tra-
ditional remedies, is appropriate.
Consolidated for hearing with the complaint are objections
to the election filed by the Charging Party and the Respond-
ent, and challenges to the ballots of Mark Livengood, Rich-
ard Anthony, William Plunkard, Timothy Ballas, Fred
Ruppersberger, Kathy Claypool, Nancy Noroski, and Barbara
Fratta.
b. Answer. In its answer to the consolidated amended com-
plaint, the Respondent admitted:
(1) Filing and service of the charges;
(2) jurisdictional facts;
(3) that the Union is a labor organization within the
meaning of Section 2(2), (6), and (7) of the Act;
(4) that Frank Dlubak (owner), David S. Bazzano
(chief executive officer), Benjamin M. Claypool (plant
manager), and Marty Patton (supervisor) are supervisors
and agents of Respondent within the meaning of Sec-
tion 2(11) and 2(13) of the Act;
(5) that on or about October 6, 1988, it discharged
and has refused to reinstate its employee, William
Plunkard;
(6) that on or about October 7, 1988, it laid off its
employees Brion Smith, Mark Kijowski, Kevin Dosch,
Nick Kuchta, Jeffrey Copeland, Ron Vantine, and Mark
Gorog;
(7) that since October 7, 1988, it has failed and re-
fused to recall its employees Brion Smith and Kevin
Dosch, and, from on or about October 7, 1988, to on
or about January 14, 1989, failed and refused to recall
its employee Mark Kijowski;
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(8) that on or about October 13, 1988, it granted a
bonus of $500 to its employees;
(9) that on or about November 9, 1988, it issued a
written warning its employee Bruce Offredi;
(10) that on or about February 16, 1988, it gave its
employees a $50 bonus;
(11) that on or about February 27, 1989, it trans-
ferred its employee, Tracy Reuter, from its Freeport,
Pennsylvania, facility to its Kittanning, Pennsylvania,
facility;
(12) that its following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees employed by the Respondent
at its Freeport, Pennsylvania, and Kittanning, Penn-
sylvania, facilities; excluding casual employees, of-
fice clerical employees and guards, professional em-
ployees and supervisors as defined in the Act;
(13) that since on or about November 20, 1988, it
has failed and refused to recognize or bargain with the
Union as the exclusive collective bargaining representa-
tive of the Unit; and
(14) that the bonus of $50 and the transfer of Tracy
Reuter are mandatory subjects for the purpose of collec-
tive bargaining, and that it granted the bonus of $50
and transferred Tracy Reuter without prior notice to the
Union and without affording the Union an opportunity
to negotiate and bargain as the exclusive bargaining
representative of its employees.
c. Issues. The results of the election held on January 12,
1989, were as follows: (1) approximate number of eligible
voters—75; (2) void ballots—0; (3) votes cast for the Peti-
tioner—33; (4) votes cast against participating labor organi-
zation—33; (5) valid votes counted—66; (6) challenged bal-
lots—8; (7) challenges are sufficient in number to affect the
results of the election. Both the Union and the Employer
filed timely objections to the election. The Employer chal-
lenged the ballots of Mark Livengood, Richard Anthony, and
William Plunkard, on the ground they were terminated prior
to the election. The Union challenged the ballots Timothy
Ballas and Fred Ruppersberger on the ground they are super-
visors within the meaning of the Act, and the ballots of
Kathy Claypool, Nancy Noroski, and Barbara Fratta, on the
ground they are office clerical employees.
Both the Respondent and the Union filed objections to the
election, and requested that the election be set aside. Re-
spondent argues that if the Union obtains a majority vote as
a result of the determination of the challenged ballots, ‘‘then
(and only then), should the election be set aside and rendered
null and void. As set out in the Regional Director’s March
28, 1989 order directing hearing on objections and chal-
lenged ballots and notice of hearing, the Respondent’s (the
Employer’s) objections, dated January 19, 1989, allege:
1. The Aluminum Brick and Glass Workers Union
(hereinafter, ‘‘Union’’) its agents and representatives,
interfered with the election rendering it impossible for
the employees to make a rational and uncoerced elec-
tion.
2. The Union, its agents and representatives, dis-
criminated against and belittled certain female employ-
ees.
3. The Union, its agents and representatives, threat-
ened and coerced certain employees with threats of
physical violence in reprisal for voting ‘‘no.’’
4. The Union, its agents and representatives, mis-
represented that certain employees would be terminated
if the Union lost the election.
5. The Union, its agents and representatives, made
other misrepresentations; vandalized company and adja-
cent property, otherwise made inflammatory, irrelevant
and/or discriminatory appeals to employees; threatened
and/or practiced physical violence; and otherwise im-
properly and adversely affected the elections result.
6. The Union, its agents and representatives, dissemi-
nated literature and made campaign speeches on com-
pany property and at other locations within the 24 hour
period before the election.
7. Third parties improperly acted and spoke as to af-
fect the outcome of the NLRB election adversely to the
employer.
The Union’s objections, dated January 18, 1989, as set out
in the Regional Director’s order of March 28, 1989, allege
that the Employer engaged in the following acts of mis-
conduct for which the election should be set aside:
1. Threatened employees with plant closure if they
voted for the Union.
2. Threatened employees with job loss because of ac-
tivities on behalf of Union.
3. Interrogated employees concerning their Union
sympathy and activity.
4. Ordered employees not to wear Union T-shirts and
threatened them for doing so.
5. Disciplined employees for writing ‘‘solidarity’’ on
hard hats with history of employees writing slogans on
hard hats without being disciplined.
6. Gave pay raises to selected employees as induce-
ment to vote against the Union.
7. Generally intimidated employees against sup-
porting or voting for Union.
The Respondent offered no evidence, and there is none in
the record of the proceeding in this case, to support the alle-
gations of union misconduct contained in its objections, other
than some evidence on the question of whether union solici-
tors misrepresented the purpose of union authorization cards.
That allegation will be considered in the context of the Gen-
eral Counsel’s complaint, and will not be discussed sepa-
rately. Otherwise, the Respondent’s objections are dismissed
for lack of evidence.
The issues raised in the objections filed by the Union are
encompassed in the amended consolidated complaint, and
likewise will not be considered separately.
At the hearing, the parties stipulated that Mark Livengood
and Richard Anthony were terminated before the election,
and that Respondent’s challenge to their ballots should be
sustained, and their ballots should not be counted. The re-
maining challenged ballots are those of William Plunkard,
Timothy Ballas, Fred Ruppersberger, Kathy Claypool, Nancy
Noroski, and Barbara Fratta.
1143DLUBAK CORP.
7 Rena Bellotti, an employee of Dlubak Corporation for approxi-
mately 2 years, is a laminator insulator in the lamination department.
J. J. Walker, an employee of Dlubak Corporation for over 4 years,
is a laborer in the lamination department. Dirk Fennell, an employee
of Dlubak Corporation since September 1987, also works in the lam-
ination department.
8 Rena Bellotti identified PPG as a unionized employer. Ford City,
Pennsylvania, is a community near Kittanning and Freeport, Pennsyl-
vania.
9 Bowser was no longer an active employee of Dlubak Corporation
at the time he testified. The General Counsel does not allege that
his employment was terminated in a manner evidencing any bias by
the Respondent.
In light of Respondent’s answers to the complaint, the
issues remaining in contention, in addition to the issue of the
challenged ballots, are: (1) Did the Respondent commit un-
fair labor practices by: disparaging employees; physically ac-
costing employees; threatening employees with plant closure;
interrogating employees about their union sympathies and ac-
tivities, and those of coworkers; threatening employees that
bargaining over wages and benefits would begin at zero if
they chose the Union as their collective-bargaining represent-
ative; threatening employees with unspecified reprisals; lay-
ing off employees; refusing to recall employees on layoff;
terminating an employee; threatening employees with layoff
or termination; creating the impression of surveillance;
issuing a notice restricting movement of employees in the
plant; issuing a written warning to an employee; transferring
an employee; threatening that a strike would be inevitable;
paying the employees bonuses of $500 and $50; and refusing
to recognize or bargain with the Union as the exclusive bar-
gaining representative of the unit on matters relating to
wages, hours, and other terms and conditions of employment
which are mandatory subjects for the purpose of collective
bargaining, including the transfer of Tracy Reuter and grant-
ing of a $50 bonus on February 16, 1989, all because em-
ployees joined, supported, and/or assisted the Union; (2) are
the Union and the Employer bound by a preelection stipula-
tion into which they entered concerning the size and mem-
bership of the bargaining unit; (3) did the Union obtain au-
thorization cards from a majority of the bargaining unit, be-
fore, or after, the election; and (4) assuming that some or all
of the alleged unfair labor practices are established, should
the appropriate remedy be a bargaining order?
In its posthearing brief, Respondent conceded the likeli-
hood that the election should be set aside because of the
8(a)(1) conduct alleged in the complaint, and, in particular,
because of its decision not to have Frank Dlubak, the Com-
pany’s president and director of marketing activities, who,
together with his wife, owns 100 percent of the Company’s
stock, take the witness stand to rebut statements attributed to
him. As stated in Respondent’s brief, at page 60:
In light of the numerous Section 8(a)(1) conduct al-
leged in the Consolidated Complaint to have occurred
during critical period before the election, and noting
particularly the Employer’s decision not to have Mr.
Dlubak take the witness stand to rebut statements attrib-
uted to him, the Employer realizes that it is extremely
unlikely that the election will not be set aside. Clearly,
if this case could have been settled by setting aside the
election, it would have been done. As it is, the signifi-
cance of the case is the request for a bargaining order
remedy. Accordingly, no further argument will be made
against setting the election aside.
As framed by the Respondent, therefore, the issue in this
case is not whether the election should be set aside because
of unfair labor practices committed by Respondent in the 4-
month period preceding the election, the Respondent virtually
concedes that it should, but whether that misconduct was so
egregious as to warrant issuance of a bargaining order.
FINDINGS AND CONCLUSIONS
I.
a. 8(a)(1) violations by Frank Dlubak. This case is one in
which the Employer was, and remains, adamantly opposed to
selection by its employees of a union as their representative
for collective-bargaining purposes. The Respondent vigor-
ously opposed the Union’s organizational campaign by dis-
tributing to its employees, on at least 14 occasions between
November 9, 1988, and April 13, 1989, by mail, notice post-
ings, and paycheck stuffers, various written material intended
to express opposition to the Union by Dlubak Corporation.
The tone of the Employer’s campaign in opposition to the
Union was set by its president, and coowner, Frank Dlubak.
Dlubak made it clear to his employees that loyal members
of the ‘‘Dlubak Team’’ were those employees opposed to the
the Union. He equated support for the Union with disloyalty.
In a conversation with employees Rena Bellotti, J. J.
Walker, and Dirk Fennell7 in mid-October 1988, Frank
Dlubak said, ‘‘I don’t know why they want a union here,
other plants have had unions and they shut down. As a mat-
ter of fact, PPG in Ford City wants me to buy them out.’’8
Substantially the same account of this conversation was
given by witnesses Rena Bellotti, J. J. Walker, and Dirk
Fennell. Implicit in these remarks was a threat by Dlubak to
close his plant if the employees selected a union to be their
collective-bargaining representative, as had happened at other
unspecified plants, or sell his plant, as in the case of PPG.
In effect, Dlubak told his employees that what had happened
to employees at other plants who chose a union could happen
to them, too.
Robert L. Bowser, an employee of the aluminum depart-
ment who was laid off on October 7, 1988, and recalled on
October 10, 1988,9 had a conversation with Frank Dlubak
several days after being recalled, in which Bowser said that
he was a union supporter, and did not think a Union would
hurt Dlubak. Dlubak agreed that the union would not hurt
him, but said that there was no law saying he had to operate
the plant there. Referring to Plant Manager Ben Claypool,
Dlubak said that he knew every move that Claypool made.
Implicit in Dlubak’s remarks was a threat to move his plant
elsewhere if his employees chose a union to represent him.
Dlubak, by stating he was aware of Production Manager
Benjamin Claypool’s ‘‘move[s],’’ implicitly approved of
them. Implicitly, therefore, Dlubak told his employees that he
approved of violations of the Act by Claypool. Violations of
the Act by Claypool are discussed infra.
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 A glass bender employed by Dlubak Corporation for 5 years.
11 Cushey testified that employees Kijowski, Dosch, and Smith had
been passing out literature at the bottom of the plant’s driveway.
12 Donald Snyder testified that he is a self-employed barber, and
that Frank Dlubak has been a customer of his for 2 years.
13 A crew chief in the aluminum division, employed by Dlubak
Corporation for 7 years.
14 Smith was laid off on October 7, 1988, and was not recalled.
15 Employee William Plunkard was discharged on October 6,
1988. Prior to that he had distributed union authorization cards to
other employees.
16 Jeffrey Copeland, a laborer in the aluminum division, has been
employed by Dlubak Corporation for 5 years.
17 The letter is addressed to ‘‘All Employees,’’ and is stated, in
an informal style, to be from ‘‘Frank.’’
On December 11, 1988, Dlubak asked employees Frank
Cushey10 and Mike Bauer if they had received the union lit-
erature which employees Mark Kijowski, Kevin Dosch, and
Brion Smith had been passing out the previous Thursday.11
Cushey acknowledged that he had. Cushey related that after
that, Dlubak said, ‘‘You know, unions are no good, all they
do is drag down companies.’’ Referring to employees
Kijowski, Dosch, and Smith, Dlubak said, ‘‘They were noth-
ing but lazy, misfit, rejects from the glass department.’’
Cushey testified that Dlubak went on to say, in substance, if
they think they were going to bring a union in here and de-
stroy what took him this long to build, somebody will get
hurt. Dlubak said, ‘‘They’ve never seen me when I was
mad.’’ Dlubak told Cushey that a friend of his had heard em-
ployee Kevin Dosch telling someone in a local bar that as
soon as the Union got in, they would shut the place down.
Referring to that remark which he attributed to Dosch,
Dlubak said, ‘‘See, by bringing in the union, they shut the
place down, we’ll all be out of work.’’ Cushey testified that
he repeated Dlubak’s statements to other glass department
employees, including Dave Plunkard, Jim Hudek, Jim Walk-
er, Doug Leipertz, Brad Kuhn, and Jim Cravener.
Dlubak’s remarks to his employees on December 11,
1988, are permeated with direct and oblique threats of loss
of jobs and plant closure if the employees selected a union,
and disparaging remarks about unions, in general, and three
union supporters among Dlubak’s employees, in particular.
He threatened retaliation, and injury, of an unspecified na-
ture, to anyone trying to destroy his company, as by sup-
porting a union, and implied that he had friends who were
surveilling his employees’ union activities away from the
plant.
In November 1988, Frank Dlubak told witness Donald L.
Snyder,12 father of Dlubak employee, Jeffrey Snyder, ‘‘you
should talk to your son, because he is going against us.’’
Donald L. Snyder testified that he told his son about the inci-
dent. Not only was Dlubak’s remark threatening towards
Snyder, because he supported the Union, and was not one of
Dlubak’s team, but implicit was the suggestion that Dlubak
had his employees under surveillance and knew about their
union activities.
In December 1988, Frank Dlubak spoke to Crew Chief
Jeffrey Snyder,13 in the presence of employee Jim Mitchell.
Dlubak said that he had come to the aluminum shop espe-
cially to talk to Snyder. Snyder said that he wanted to ex-
plain to Dlubak that wearing a union pin would not change
the way he worked, he had been hired to do a job and would
continue to do that job. Dlubak agreed that Snyder had been
doing his job, and would continue to do it, then went on to
say, ‘‘I don’t want a union in here and I will not have a
union in here.’’ Dlubak said a union would not hurt him, but
he had made the place what it is today and would not want
nor would he have a union.
During his December 1988 conversation with Jeffrey Sny-
der, Dlubak referred to employee Brion Smith, saying that he
was not there, and that he had given Smith a lot of breaks
when he missed work while going through a divorce.14
Dlubak also stated that Bill Plunkard was not there; he had
refused to do his paperwork, and that was an automatic dis-
missal.15 Dlubak said that he wanted people to work together
as a team, and he did not need anyone who did not want to
work as a team. In the context of mentioning the names of
Brion Smith and Bill Plunkard, Dlubak said, ‘‘Let’s face it,
these guys aren’t here for one reason only. They’re not here
because I don’t want them here. They’ll never work here
again.’’
By stating that he would not ‘‘have a union in here,’’
Dlubak implied plant closure if the employees selected a
union. He said that he wanted only people working for him
who were part of the team, and he made it clear that union
supporters were not part of the team. He claimed responsi-
bility for termination of the employment of two employees
who supported the Union, and implied that would be the fate
of others who made the mistake of crossing him by sup-
porting the Union.
In January 1989, 2 days before the election, Dlubak asked
employee Jeffrey Copeland,16 in the presence of employee
Steve Meleason, whether Copeland was going to vote for the
Union or for the Dlubak team. Jeffrey Copeland testified that
he did not respond to Dlubak’s question. Employee Steven
B. Meleason testified that Dlubak asked, ‘‘How do you
stand? Are you with them union people or are you on the
Dlubak team?’’ Meleason stated that Dlubak said that he was
not going to put up with a union telling him what to do, and
a union would not hurt him. Both Copeland and Meleason
testified that they related to other employees what Dlubak
had said.
In this conversation, Dlubak interrogated employees about
their support for the Union, clearly said that union supporters
were not on his team, which carried with it a threat to their
continued employment, and said that he would not bargain
with a union, raising the specter of union-employer strife.
The testimony by Dlubak Corporation employees relating
to Dlubak’s remarks was, in several instances, corroborated
by more than one witness. Frank Dlubak was not called as
a witness, and, therefore, the testimony concerning his re-
marks stands unrebutted.
Highly corroborative of the employees’ testimony con-
cerning Frank Dlubak’s ‘‘Join the Dlubak Team’’ campaign
theme is the contents of a disarmingly informal letter he sent
to his employees on November 9, 1988 (G.C. Exh. 25(a)).17
That letter contains threats of reductions in wages and bene-
fits if the employees do not join the ‘‘Dlubak Team’’ by re-
jecting the Union, and retaliation against union supporters for
their support of the Union. The letter bears the title, ‘‘JOIN
THE DLUBAK TEAM,’’ and concludes with the sentence,
‘‘Ask yourself whose team you would rather be on, Frank
Dlubak’s or theirs?’’ In between, the letter chastises an
unnamed employee identified as being one of the main fig-
1145DLUBAK CORP.
18 The reference seems to be to Brion Smith, who was a foreman
in the aluminum division until he was laid off in 1987. After work-
ing for another company for 5 months, Smith asked David Bazzano
for his job back, and was rehired. Although he was not reinstated
as a foreman, he retained his seniority for pay purposes. Later, he
was asked, but declined, to be a crew leader.
19 Dlubak Corporation is a closely held family business, employing
approximately 100 or less employees, owned by Frank Dlubak and
his wife. Only Frank Dlubak, however, appears to be active in man-
agement of the business, at least, from the perspective of the cor-
poration’s production employees.
ures in the ‘‘certain group in the company who have tried
to convince you how terrible your current condition is, and
how wonderful you will have it if you just say yes to a
union,’’ for failing to appreciate the good benefits offered by
the company, especially after he pleaded to be recalled fol-
lowing a layoff.18 The letter continues with the statement,
‘‘After listening to the pitch of these outsiders, this person
probably also wasn’t aware that a union cannot guarantee
you anything, not even the maintenance [sic] of the benefit
package and wage structure currently in place.’’ Further on,
the letter states, ‘‘Only the company can provide you with
the pay and benefits you receive from your employment
here, and, union or not, you can receive nothing it doesn’t
agree to.’’
Having had the opportunity to observe the demeanor of the
witnesses, and considering all the testimony and other evi-
dence, as well as the failure by the Respondent to call Frank
Dlubak as a witness to rebut the remarks attributed to him,
I find that the witnesses who testified about Dlubak’s state-
ments are credible, and their testimony, especially in light of
the corroboration provided by Frank Dlubak’s letter to his
employees of November 9, 1988, is sufficient to establish by
a preponderance of the evidence that Frank Dlubak made the
remarks and took the actions described above.
The common thread running through Dlubak’s conversa-
tions with his employees in the period before the union elec-
tion, and repeated in his letter to his employees of November
9, 1988, was that he did not want to deal with a union, he
would not deal with a union, and that any of his employees
who supported the Union were disloyal and not on his team.
He said he did not want any employees working for him who
were not on the Dlubak team. He explicitly stated that two
known union supporters, Smith and Plunkard, were no longer
employed because he did not want them there. Dlubak pre-
dicted that a union would shut the plant down. Implicitly, if
not explicitly, Dlubak, who said there was no law saying
where he had to operate his plant, threatened to close the
plant and move it elsewhere if the Union got in.
In NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
the Supreme Court noted that Section 8(a)(1) of the Act pro-
hibits interference, restraint, or coercion of employees in the
exercise of their right to self-organization. An employer’s
threat to close a plant if the employees select a union as their
collective-bargaining representative is a form of threatened
reprisal because the employees are engaging in union activ-
ity, and as such violates Section 8(a)(1) of the Act. Sertafilm,
Inc., 267 NLRB 682 (1983); NLRB v. Gissel Packing Co.,
supra.
Implicit, as well as explicit, threats of plant closure if em-
ployees vote for a union violate Section 8(a)(1) of the Act.
So-Lo Foods, 303 NLRB 749 (1991); Sertafilm, Inc., supra;
Cf. St. Agnes Medical Center, 304 NLRB 146, 148 (1991);
Impact Industries, 285 NLRB 5 (1987). The Board indicated
in St. Agnes Medical Center, supra, that threats of plant clo-
sure are among the types of violations which cannot be ade-
quately remedied by the customary notice posting and cease-
and-desist orders.
Even a veiled threat to discharge employees for engaging
in union activities or supporting a union is a threat of reprisal
for engaging in union activity, and as such violate Section
8(a)(1) of the Act. Kona 60 Minute Photo, 277 NLRB 867
(1985). Frank Dlubak’s linkage of opposition to the Union
with being a member of the Dlubak team, coupled with his
statements that he wanted only employees who were on his
team, amounted to thinly veiled threats to the future employ-
ment by Dlubak Corporation of union supporters. In
Baddour, Inc., 281 NLRB 546, 548 (1986), the Board found
that a statement ‘‘that the Company is no place for employ-
ees who want a union,’’ alone, violated Section 8(a)(1) of the
Act. Dlubak’s ‘‘Dlubak Team’’ remarks clearly fall into the
category of veiled threats of discharge, and violate Section
8(a)(1) of the Act.
In So-Lo Foods, supra, the Board, citing Histacount Corp.,
278 NLRB 681, 689 (1986), and Platronics, Inc., 233 NLRB
155, 156 (1977), said that ‘‘[i]n evaluating comments con-
cerning ‘bargaining from scratch,’ the Board cases draw a
distinction between (1) a lawful statement that benefits could
be lost through the bargaining process and (2) an unlawful
threat that benefits will be taken away and the union will
have to bargain to get them back.’’ Considered in the context
of the entire letter, together with the numerous ‘‘hallmark’’
unfair labor practices committed by Respondent, as set out
in this decision, one reasonable inference to be drawn from
the remarks contained in the letter about ‘‘maintenance of the
benefit package and wage structure currently in place’’ and
‘‘only the company can provide you with the pay and bene-
fits you receive . . . and you can receive nothing it doesn’t
agree to,’’ is that the remarks amount to at least an oblique,
if not overt, threat that current benefits and wages will be
taken away and the union, if victorious in the election, will
have to bargain to get them back. In another recent case,
Shaw’s Supermarkets, 303 NLRB 382 (1991), the Board de-
clined to change extant law, and stood by its belief that by
threatening employees that the employer would bargaining
from scratch if the employees selected a union to represent
them, an employer violates Section 8(a)(1). Accordingly, I
find that the letter contains threats which violate Section
8(a)(1), and those threats are attributable to Frank Dlubak,
Respondent’s highest management official, who signed the
letter.
Considering Frank Dlubak’s status as both the owner of
Dlubak Corporation,19 and its president, there can be no
doubt of the chilling effect on his employees of his repeated
implied threats of plant closures if the employees chose a
union to represent them, interrogation of employees concern-
ing their union views and how they would vote in the elec-
tion, disparaging comments about union supporters, and his
threats to get rid of disloyal union supporters, coupled with
statements that the Union could not even guarantee the cur-
rent wage and benefits package and the employees would re-
ceive nothing other than that to which the Company agreed,
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which amounted to a threat that negotiations with the Union
would start from scratch or zero. The Board has said that
‘‘an employer’s unlawful conduct is heightened when it is
committed by the highest-level management official.’’ Impact
Industries, supra, 285 NLRB at 6. Dlubak’s threats, which
were widely disseminated among the employees, as he clear-
ly intended that they would be, were made over a period of
approximately 3 months preceding the election, which Re-
spondent acknowledges is a critical period. Dlubak made it
clear that his test for continued employment in his business
was personal loyalty to him, and that union supporters were
disloyal, not to mention being lazy misfits. It would take a
rather courageous employee, indeed, to give any indication
of support for a union under conditions in which support of
a union was equated to disloyalty and placed the employee’s
continued employment in jeopardy.
The Board has often held that interrogation of employees
concerning their union activities and the union activities of
other employees, and creation of the appearance of surveil-
lance of employees’ union activities are unlawful and violate
Section 8(a)(1) of the Act. Baddour, Inc., supra.
The Board’s test for determining whether interrogation of
employees concerning their union activities or the union ac-
tivities of other employees is set out in Rossmore House, 269
NLRB 1176, 1177 (1984): ‘‘Whether under all of the cir-
cumstances the interrogation reasonably tends to restrain, co-
erce, or interfere with rights guaranteed by the Act.’’ The
Board has said that a totality of the circumstances test must
be applied, even when the interrogation is directed to unit
members whose union sympathies are unknown to the em-
ployer. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).
Some of the considerations taken into account by the Board
in determining whether under the totality of the cir-
cumstances the interrogation was coercive include: Whether
the employee interrogated was an open and active union sup-
porter; whether there is a history of employer hostility to-
wards or discrimination against union supporters, whether the
questions were general and nonthreatening, and whether the
management official doing the questioning had a casual and
friendly relationship with employee being questioned. Sunny-
vale Medical Clinic, supra at 1218.
In Hanes Hosiery, 219 NLRB 338 (1975), the Board said
of interrogation that:
We long have recognized that the test of interference,
restraint, and coercion under Section 8(a)(1) of the Act
does not turn on Respondent’s motive, courtesy, or
gentleness, or on whether the coercion succeeded or
failed. The test is whether Respondent engaged in con-
duct which reasonably tends to interfere with the free
exercise of employee rights under the Act.
In this case, the interrogation of employees by Frank
Dlubak, the highest-level management official of Respond-
ent, took place in an atmosphere of open hostility on his part,
and on the part of the Respondent, whose policy Dlubak set,
towards unions and his employees selecting a union as their
bargaining representative, and discrimination by Respondent
against union supporters. The Respondent within the first
week of the union organizational campaign had already dis-
charged one employee for his union activities, and laid off
other employees who were openly active in their support for
the Union. Dlubak’s remarks to his employees were laced
with at least implied threats of plant closure, layoffs, dis-
charge, and other unspecified reprisals against union sup-
porters; disparagement of union supporters; linkage of loyalty
to him with opposition to the Union; and, remarks creating
the appearance of surveillance of the activities of union sup-
porters. Under the totality of the circumstances, I find that
his interrogation of employees was coercive and in violation
of Section 8(a)(1) of the Act. Kona 60 Minute Photo, 277
NLRB 867; Churchill’s Supermarkets, 285 NLRB 138
(1987).
Creating the impression of surveillance of employees
union activities violates Section 8(a)(1) of the Act. Keystone
Pretzel Bakery, 242 NLRB 492 (1979); Overnight Transpor-
tation Co., 254 NLRB 132 (1981). Likewise, use of dispar-
aging language by an employer to describe union supporters
to other employees is coercive and a violation of Section
8(a)(1) of the Act. M. K. Morse Co., 302 NLRB 924 (1991).
The unrebutted evidence establishes that in contacts with
his employees during the Union’s organizational campaign,
Frank Dlubak violated Section 8(a)(1) of the Act by threat-
ening his employees with loss of their jobs and benefits if
they supported the Union, threatening that bargaining would
start from scratch, making disparaging remarks about em-
ployees who supported the Union, coercively interrogating
his employees about their union activities and the union ac-
tivities of other employees, threatening unspecified forms of
reprisal against union supporters, threatening plant closure,
and creating the appearance of surveillance.
b. 8(a)(1) violations by Benjamin M. Claypool. Any notion
that Frank Dlubak’s intentions were benign and that his re-
marks were harmless is dispelled by the complementary ac-
tions and statements of Benjamin M. Claypool, the produc-
tion manager or plant manager, and Martha Patton, super-
visor of the lamination department. The record is replete with
testimony by company employees concerning interrogation,
threats, and disparagement of union supporters by Plant Man-
ager Claypool, and to a lesser extent, by Supervisor Martha
Patton. These employees placed themselves at considerable
economic risk by testifying against their employer, and, as
noted, testimony by employees under such conditions is a
factor tending to support their credibility. Although Claypool
denied making many of the remarks attributed to him, or did
not recall having made them, I find that his demeanor was
evasive and his testimony unconvincing.
It is quite clear that both of these supervisors took Frank
Dlubak’s threat to close the plant if the employees chose rep-
resentation by a union very seriously, so seriously, in fact,
that they picked up on that threat and repeated it over, and
over, again. Taking his lead from Frank Dlubak, Claypool in-
terrogated employees about their union activities and those of
other employees, disparaged and threatened union supporters
with layoff and loss of their jobs, and threatened employees
with reduction in wages and benefits, strikes, and other ad-
verse consequences if they chose a union to represent them,
as well as with closure of the plant by Frank Dlubak. Under
these circumstances, where it is evident that Claypool, him-
self, feared closure of the plant and loss of his own job if
the Union won the election, a fear which it is equally evident
that Supervisor Martha Patton shared, it can hardly be doubt-
ed that the employees had every reason to take that threat
just as seriously.
1147DLUBAK CORP.
20 David Crotallo, a glass cutter, has been employed by Dlubak
Corporation for 4 years.
21 Claypool denied having had such a conversation with Crotallo.
He said that he knew nothing about a union at that time, and did
not ask Crotallo what he knew about it, or whether Plunkard or
Smith were handing out union cards.
22 Claypool denied that this conversation ever took place.
23 A 3-year employee of Dlubak Corporation, now working in the
boxing department of the glass division. From March 1987 to March
1989, Chrissman worked in the pan shop.
24 Robert Fox has been employed by Dlubak Corporation for 2–
1/2 years as a maintenance worker. He repairs motors, pumps, and
doors, and does general building maintenance work. Until February
1, 1989, he worked at the Freeport plant. Since then he has worked
at the Kittanning plant, where he also helps load and unload fur-
naces.
25 Claypool denied making these statements to Fox and White.
26 Claypool denied making these statements to Snyder. He said
that he did tell Snyder that the work flowing into aluminum was
slowing down.
27 Kenneth Bowser worked for Dlubak Corporation from March
1987 to June 1989 as a glass bender. Ben Claypool is Bowser’s
uncle. Bowser stated that he wore a company button given to him
by Claypool, and led Claypool to believe he was for the Company,
because he was afraid for his job. He stated that he did not think
he ever told Claypool that he had signed a union authorization card.
28 Claypool stated that Bowser is his wife’s nephew. He denied
making the statements Bowser attributed to him.
29 A glass bender, Frank Cushey has been employed by Dlubak
Corporation for 5 years. His brother-in-law is Nicholas J. Kuchta,
one of the earliest supporters of the Union. Cushey admitted that he
did not tell Claypool or other company officials that he supported
the Union. He stated that in various conversations with Claypool, he
actually spoke in opposition to the Union. He stated that at the same
time, he told other employees about his conversations with Claypool.
Cushey stated that he did not initiate any of the conversations he had
with Claypool in which Claypool discussed the Union. Cushey first
disclosed his union preference 2 days before the election by wearing
a union shirt. Since then, he said, neither Claypool nor any other
company official has spoken to him about the Union.
John E. Shinn, the Union’s International representative as-
signed to the Dlubak organizational campaign, first met with
a group of seven Dlubak Corporation employees on Sep-
tember 30, 1988. On or about October 2, 1988, employees
of Dlubak Corporation began distributing union literature and
union authorization cards to other employees.
On October 5, 1988, Plant Manager Benjamin Claypool
interrogated employees about their knowledge of union ac-
tivities at the plant and the union activities of other employ-
ees, and created the impression that he was surveilling em-
ployees’ union activities. At approximately 3:30 p.m.,
Claypool interrogated employee David Crotallo20 by asking
him what he knew about a union. Crotallo replied that all he
knew was that there was talk of a union going through the
plant. Claypool interrogated Crotallo about the union activi-
ties of other employees by asking him if employees William
(Buck) Plunkard, Brion Smith, Kevin Dosch, and Mark
Kijowski had been handing out union authorization cards.
Crotallo said, ‘‘No.’’ Claypool’s questioning, which was di-
rected at specific employees’ activities, created the impres-
sion that he was surveilling the activities of those employees.
Later, Crotallo related his conversation with Claypool to
members of his crew and to other employees.21
Later that day, at about 5:30 p.m., Claypool appeared on
the glass division floor, and interrogated Crotallo’s crew
about union activities at the plant, creating in the process the
appearance of continuing surveillance. He asked members of
Crotallo’s crew questions about union activities at the plant,
and told them that he would be back to the plant later that
evening, but not to tell anyone.22 Present, in addition to
Crotallo, were Greg Claypool (Benjamin Claypool’s son),
Ron Shankle, Todd Fennell, and Kenny Bowser.
On the same day, Crotallo told employee Greg S.
Chrissman23 that Claypool was asking about the Union and
what was going on. Crotallo said that he thought that
Claypool knew that Buck Plunkard had been passing out
union authorization cards. Crotallo said he was not going to
turn in the union authorization card he had received, because
he was afraid the Company would find out and fire him.
On the same day, Claypool told maintenance employee
Robert Fox24 and another maintenance employee that he
(Claypool) had a problem, specifically, that the aluminum
department was trying to start a union. Claypool said that
Bill (Buck) Plunkard was passing out union authorization
cards.25 Claypool’s remark not only suggested that he was
engaging in surveillance of Plunkard’s union activities, but,
by describing the passing out of union authorization cards as
a problem, Claypool raised the possibility that he intended to
take some retaliatory action to eliminate that problem.
In October 1988, Claypool told Snyder that he expected
production to drop because of the union activity, and that he
expected the employees to break bends (aluminum bends) on
purpose and ‘‘screw up anything mechanical.’’26 He told
Snyder to watch the employees at all times.
In October 1988, Claypool openly threatened to layoff em-
ployees engaged in union activities. Shortly before the layoff
of aluminum division employees, Claypool said to Snyder,
‘‘Well, Jeff, they’re trying to get a goddamn union in here
again. If they want to try to get a union in here, they’ll all
be laid off.’’
On October 10, 1988, Claypool threatened reprisals against
union supporters, when he showed employee Kenneth Bow-
ser27 a letter which he said some employees had signed say-
ing the Union was backing them. Claypool said they had
‘‘just hung themselves.’’
On other occasions between October 1988 and the January
12, 1989 election, in conversations with Bowser, Claypool
threatened that unionization would bring with it loss of
wages and jobs. He said that the Union would bring down
the wages of older workers and drive up the wages of young-
er workers. He also told Bowser that Dlubak would go bank-
rupt within 2 years, because they would have to raise prices
and would not be able to compete. On several occasions,
Claypool interrogated Bowser about the union activities of
other employees. He told Bowser he had a list of those em-
ployees he thought were for the Union and those he thought
were against it, and asked Cushey which employees he
thought were for it. Bowser said he just shrugged his shoul-
ders. Later, he said, he told employees Frank Cushey and
Greg Crissman about his conversations with Claypool.28
On November 1, 1988, Claypool described union support-
ers in disparaging terms to employee Frank Cushey29 when
he said they ‘‘were nothing but dead weight.’’ Claypool de-
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Claypool denied making the statements attributed to him by
Cushey on this occasion.
31 Including Mark A. Kijowski, Mark R. Gorog, Nicholas J.
Kuchta, Robert L. Bowser, Brion Smith, and Kevin Dosch, all of
whom had attended the union meeting on September 30, 1988, and
had signed union authorization. Together with two other employees,
Ron Vantine and Jeffrey Copeland, these employees, all of whom
were employed in the aluminum division, were laid off on October
7, 1988. Copeland signed a union authorization card on October 4,
1988, after being solicited by Nicholas Kuchta.
32 Dlubak Corporation paid a $500 bonus to its employees on Oc-
tober 13, 1988.
33 Claypool testified that he did not recall a conversation in which
he told Crotallo, Bowser, Fennell what would happen if the Union
came in. He said he could have had a conversation about the Union
in November 1988, but did not recall the content.
34 Claypool denied making such a statement.
35 Mark R. Gorog has been employed by Dlubak Corporation for
5 years as an aluminum bender. After being laid off on October 7,
1988, Gorog sent a letter to Frank Dlubak, declaring his support for
the Union.
36 Claypool, in his testimony, described Pullman Standard, as a
unionized employer for which he formerly worked until it had gone
out of business. Claypool testified that the union at Pullman Stand-
ard had not done him any good. At a December 8 or 9 meeting with
a number of Dlubak employees, he said that all he did was pay into
the Union, and it did nothing for him.
37 Claypool admitted that he told Gorog and Copeland that if the
Union won there would be negotiations to find out why they would
end up with. He told them that they were not necessarily going to
keep everything they had. He said he told them they could not just
keep what they had and negotiate more. They would have to nego-
tiate everything. He admitted that he said that if Dlubak had a lot
of extra expenses when negotiations took place, the Company would
have to raise prices, competition would beat them out, and probably
people would be laid off. Claypool denied making the other remarks
attributed to him on that occasion.
38 Jeffrey Copeland sent a letter to Frank Dlubak after being laid
off on October 7, 1988, declaring his support for the Union.
39 Claypool denied making this statement.
40 Kuchta and Bowser have been employed by Dlubak Corporation
for approximately 5 years as aluminum benders. Jeffrey Snyder, an
employee of Dlubak Corporation for 7 years, is a crew chief in the
aluminum division. Arthur Brendlinger, an employee of Dlubak Cor-
poration for 3-1/2 years, was a floor sweeper at that time.
41 Claypool denied this statement, but admitted that he told Bowser
that if the Union made a lot of high demands, Dlubak would have
to raise prices, the Company would lose business to it competitors,
and it would have to lay off employees.
42 Claypool acknowledged saying on that occasion that his experi-
ence with the Union at Pullman Standard was that it did nothing for
him. He told Kuchta and Bowser that he could not guarantee jobs
for them at Dlubak if the Union lost, but if they did what they were
scribed employee Arthur Brendlinger, a union supporter, as
an example.30
On another occasion, Claypool blatantly interfered with the
Section 7 rights of employees to choose whether or not to
support a union, and created the appearance that employees’
union activities were under surveillance when he told Cushey
that he had heard that employee Kirk Bauer was for the
Union, and told Cushey ‘‘to get on him and change his
mind.’’
In mid-November 1988, again in the presence of Crew
Chief Crotallo and other members of his crew, Claypool dis-
paraged union supporters and threatened plant closure if the
employees selected the Union to represent them. Referring to
employees of the aluminum division who were on layoff,31
Claypool commented that it was ironic that even after they
had come out in support of the Union, they were still getting
their bonuses.32 Claypool stated that if the Union came in,
Frank (Dlubak) would close the place up.33 Crotallo repeated
Claypool’s remarks to other company employees. Claypool
brought up his resentment that the aluminum division em-
ployees on layoff were getting bonuses several times after
that.34
In a conversation with Mark Gorog35 and Jeff Copeland
in November 1988, Claypool threatened employees with loss
of wages and benefits if Dlubak’s employees selected the
Union. He said that it was better working Dlubak at $9 an
hour than at Pullman Standard at $13 an hour.36 He said that
the employees would have to negotiate a contract with
Dlubak Corporation if they chose to have a union represent
them, and they would have to start from scratch, because
Frank (Dlubak) would only give them what he wanted to
give them.37 Gorog told other employees about this con-
versation with Claypool. During the same conversation with
Claypool, however, Gorog asked if he would be fired be-
cause he sent a letter to Frank Dlubak stating he supported
the Union. Claypool stated that he was not going to be fired.
In an early November 1988 conversation with Jeffrey
Copeland, a known union supporter since early October
1988,38 Claypool continued to disparage union supporters
and threatened plant closure if the employees selected the
Union. Claypool said that he could not believe ‘‘we had
jumped on the bandwagon.’’ He said that if the Union came
in, ‘‘we’d all be looking for jobs in a couple of years.’’ He
added that the Union would bring the Company down, ‘‘de-
stroy it.’’ He said that employees working in the aluminum
division were people who could not fit in other places in the
Company, and the aluminum division was ‘‘more or less the
last stop before getting fired.’’ When Copeland asked if that
meant him, Claypool replied that he did not actually mean
Copeland, just the people he worked with. Copeland said that
after he started wearing a union hat, Claypool stopped talk-
ing to him. When Copeland asked why, Claypool replied that
he could not believe that he was supporting the Union.
Also in November 1988, Claypool told Crotallo that the
laid off aluminum division employees would not be re-
called.39
In another disparaging comment about union supporters in
December 1988, Claypool told Crew Chief Meleason that
‘‘you make your own job security, all unions are good for
is people who don’t do their jobs.’’
On or about December 8, 1988, Claypool initiated a 2-1/2
hour discussion with four aluminum division employees,
Nicholas J. Kuchta, Robert Bowser, Jeffrey Snyder, and Ar-
thur Brendlinger,40 during which he made denigrating and
disparaging remarks about union supporters, and threatened
plant closure if the employees selected the Union. Kuchta
testified that Claypool said, ‘‘The only reason we wanted a
union was so we didn’t have to do our work and we could
be lazy and lay around and stuff.’’ He said a union would
not hurt the Company, but within 2 years high demands by
the Union would force the Company to shut down.41
Claypool said that the Union at Pullman Standard was the
cause of that company shutting down, and he believed the
same thing would happen at Dlubak if the Union came in.42
1149DLUBAK CORP.
supposed to, they will have jobs. He said that Kuchta was breaking
bends, and he warned him to stop.
43 Apparently Claypool and Bowser had posted letters in the plant
in which they traded charges about the cause of Pullman Standard
going out of business. During the meeting, Claypool accused Bowser
of purposely breaking company material, then withdrew the allega-
tion.
44 Claypool acknowledged that he told Cushey that high union de-
mands could cause loss of customers by raising the price of glass.
45 Claypool later took a first step in trying to make good on his
threat to get rid of Offredi by issuing a written warning to Offredi
for wearing a union emblem on his hardhat, infra.
46 Claypool admitted that he talked to Cushey about the Union
several times, and in response to questions from Cushey, stated that
he did not know what would happen if the Union won. He stated
it was possible Frank Dlubak was going to shut down the plant. He
denied telling Cushey that the Union was no good, or that when the
campaign was over, he was going to get rid of the union supporters.
He denied telling Cushey that Frank Dlubak could close down the
plant and live off his money.
47 Claypool testified that he did not recall talking to Crotallo about
anything on the Monday before the election. He stated that he did
not tell Crotallo he had a list of names and was trying to get a feel
for who was for the Union, nor did he show Crotallo a list of names.
48 Crotallo testified that he first received a union authorization card
from Kevin Dosch on October 4, 1988. He agreed to sign it, but
subsequently tore it up after learning that William Plunkard’s em-
ployment had been terminated. He later signed another card given
to him at his home by Kevin Dosch.
49 Claypool acknowledged that during a conversation on January
9, 1989, Crotallo asked what would happen if the Union won. Ac-
cording to Claypool, he told Crotallo and another employee named
Shankle that there would be negotiations leading to a new contract.
He told them he did not know what would happen. He denied he
told them there would be a strike, and he denied that he asked
Crotallo what he would do for money for his new child if there was
a strike.
50 Crotallo testified that he played two roles. He said that although
he supported the Union, he was afraid that if the Company found
out it would fire him, so he told the Company he was not for the
Union. Crotallo acknowledged that in his November 9, 1988, state-
ment to NLRB agent Ron Kisak, he said that Claypool had not
talked to him about the Union since October. Crotallo said he was
nervous and scared at the time, and remembered other conversations
after Kisak had left his home. I find nothing in the omission to dis-
credit his testimony at the hearing.
Bowser, who had also worked for Pullman Standard, and
Claypool argued about whether that company closed because
of the union or bad management.43
Jeffrey Snyder, testifying about the same meeting, related
that Claypool said that it would cut the place down to noth-
ing if a union came in the shop, and that everyone, including
Snyder, would be out of a job. Claypool accused Snyder of
purposely dropping production because of the Union, a
charge which Snyder denied. At the time of that meeting,
Kuchta, Bowser, and Snyder openly supported the Union.
In several conversations with employee Frank Cushey in
December 1988 and January 1989, Claypool repeated earlier
threats of plant closure and the inevitability of strikes if the
employees selected the Union, disparaged and denigrated
union supporters and threatened reprisals against them, and
interrogated Cushey about the union activities of other em-
ployees.
On December 27 or 28, Claypool predicted eventual plant
closure if the employees selected the Union, and threatened
reprisals against certain employees because of their union ac-
tivities. He told employee Cushey that if the Union made it,
it would make outrageous demands, and to meet some of
those demands, the Company would have to raise prices and
would lose customers.44 Before long, he said, everyone
would be out of work. Claypool stated that regardless of the
outcome, he was going to get rid of Nick Kuchta, Bob Bow-
ser, and Bruce Offredi. He said that he would fire them when
they did the slightest thing wrong.45 Claypool interrogated
Cushey about the union activities of other employees when
he showed Cushey a list of names, including those of Brad
Kuhn, Doug Leipertz, Jim Cravener, and David Crotallo,
who, he said, he was pretty sure were for the Union, and
asked Cushey what he thought.
Three weeks before the election, Claypool told employee
Cushey that the Union was no good and was just for people
who did not want to work. Claypool stated that Frank
Dlubak did not need the ‘‘aggravation or the money’’ and
could ‘‘shut this place tomorrow and live off what he
has.’’46
In January 1989, Claypool told Cushey that if the Union
won, there would be a strike, and everyone would be out of
work. He said Cushey should encourage employees to cross
the picket lines.
On the Monday before the election, which was held on
January 12, 1989, Claypool interrogated employee Crotallo
about the union activities of other employees.47 Claypool
showed Crotallo a list of approximately eight names, includ-
ing those of Frank Cushey and Jim Hudek, and said he was
trying to get some idea of who was for the Union. Crotallo
told Claypool that he was not for the Union. Crotallo, in fact,
had signed a union authorization card on October 15, 1988.48
Crotallo related his conversation with Claypool to other em-
ployees.
Crotallo returned to work on January 8, 1989, after being
on workmen’s compensation leave since being injured on
November 13, 1988. At that time, his wife was expecting a
child. During the week of January 8, 1989, Claypool told
Crotallo that if the Union came in, the employees would go
out on strike, and then he asked Crotallo what he would do
when the money ran out, especially considering the
Crotallos’ expected child. Crotallo replied that he did not
know.49
A substantial credibility issue is raised by the conflicting
testimony of David Crotallo and Benjamin Claypool regard-
ing what was said by Claypool to Crotallo. After observing
the demeanor of the two witnesses while they testified, and
weighing the probability or improbability of their testimony
in light of other testimony in this case, as well as their ap-
parent motives for testifying truthfully or untruthfully, and
taking into consideration the jeopardy in which Crotallo
placed himself by giving testimony adverse to his employer,
I find that David Crotallo is a credible witness, and Ben-
jamin Claypool is not.50 I credit Crotallo’s testimony, and I
reject as untruthful that of Benjamin Claypool.
There are other instances in which Claypool interrogated
employees about their union activities, and threatened plant
closure if the employees selected the Union. Several weeks
before the election, Claypool stopped employee Todd
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 A glass cutter on the cutdown crew, who has been employed
by Dlubak Corporation since January 1988.
52 Claypool denied this conversation.
53 A 7-year employee of Dlubak Corporation, Tina Goodgasell is
a crew chief in the lamination department. Her supervisors are Ben
Claypool and Marti Patton.
54 Claypool denied making any such statement to Goodgasell.
55 It is immaterial whether Claypool violated the Act because of
his personal dislike for unions, or because he was afraid for his own
job, or a combination of both.
Placek51 and asked him why he was for the Union.52 Placek,
who had worn a union T-shirt to work, answered, giving
three or four reasons. At some point prior to the election,
Claypool told Tina Goodgasell53 that if the Union won,
Frank Dlubak would shut the plant down.54
The issue here is essentially one of credibility. It is Ben-
jamin Claypool’s word against that of a number of company
employees. I find Claypool to be entirely lacking in credi-
bility. By contrast, I find that the employees who testified
about statements made by Claypool are credible, and their
testimony is not only believable, but entirely consistent with
the nature of Frank Dlubak’s well-known antiunion senti-
ments.
Although Claypool denied that Frank Dlubak ever told
him he was opposed to his employees joining a union,
Claypool acknowledged that did not mean he was unaware
of Dlubak’s opposition. He admitted that he had received
copies of the literature distributed by the Company in its
campaign against the Union. More significantly, however,
Frank Dlubak made no effort to hide his opposition to his
employees joining a union; in fact, he went out of his way
to make his employees aware of his opposition, and in the
process violated the Act, by threatening, implicitly, if not ex-
plicitly, closure of the plant and adverse consequences to em-
ployees who supported the union. Claypool did not need to
be told that by Frank Dlubak, personally, or by other man-
agement officials, of his employer’s blatant antiunion senti-
ments. His knowledge is evident from the fact that he echoed
the same threats made by Frank Dlubak. It is, in fact, quite
evident that Claypool believed that Dlubak would close the
plant if had to deal with a union, and it was, I conclude,
Claypool’s fear for his own job, as much or even more than
his personal dislike of unions,55 which motivated his per-
sistent efforts to discourage and intimidate employees from
voting for the Union.
The evidence establishes that Benjamin Claypool violated
Section 8(a)(1) of the Act by threatening employees with re-
prisals, including termination, layoff, and reprisals of an un-
specified nature against employees for supporting the Union;
interrogating employees about their union activities and the
union activities of other employees; creating the appearance
of surveillance of employees engaged in union activities; dis-
paraging, belittling, and denigrating employees who sup-
ported the Union and engaged in union activities; threatening
employees with loss of jobs and benefits, lower wages, and
plant closure resulting from unreasonable demands by the
Union, which would drive up the Company’s prices, drive
away customers, and decrease the Company’s profitability;
threatening employees with the inevitability of strikes, if the
employees selected a union; threatening plant closure by the
Company’s owner if the employees selected a union; and,
threatening that bargaining would start from scratch.
c. 8(a)(1) violations by Martha Patton. A 12-year em-
ployee of Dlubak Corporation, Martha (Marti) Patton is the
lamination supervisor in the glass division. Her immediate
supervisor is Benjamin M. Claypool. Her department per-
forms all special glass laminating projects, and tests samples
for customers. She prepares work schedules and records
work times for employees in the lamination department. She
supervises 3 crew chiefs and 21 employees in the lamination
department. Her department normally operates three shifts a
day.
Taking her lead from Frank Dlubak and Benjamin
Claypool, Martha Patton actively interrogated, harassed, be-
littled, and threatened employees in the lamination depart-
ment because of their union activities during the period from
October 1988 to January 1989. Whether she involved herself
in actively trying to defeat the union organizing drive be-
cause she feared for her own job, or for some philosophical
disagreement with unions, or a combination of both, is large-
ly irrelevant, although from her statements and actions it ap-
pears more likely that she feared that Frank Dlubak would
close the plant if the Union won recognition, and her opposi-
tion was largely based on fear for her own job.
In December 1988, Martha Patton threatened that Frank
Dlubak would close the plant or move it if the employees
selected a union to be their collective-bargaining representa-
tive. She told employees Phyllis Lubiniecki and Lisa Minteer
that ‘‘Frank would close the place down if the union came
in.’’ In the same conversation, she said that Dlubak probably
would close the plant or move it to another location.
Lubiniecki repeated Patton’s remarks to other employees, in-
cluding Tracy Reuter, Rena Bellotti, Dirk Fennell, J. J.
Walker, and Frank Osche.
Patton denied ever talking to Lubiniecki and Minteer about
what would happen if the Union came in. She said she did
not tell Lubiniecki before Christmas that Frank would close
the place down or move if the Union came in. She denied
telling Lubiniecki that there should be no Christmas bonus
because of the ‘‘God damn’’ Union. For reasons discussed,
infra, I do not credit her testimony.
In December 1988, Martha Patton interrogated an em-
ployee about his union views, and coupled the interrogation
with a threat that Frank Dlubak might close the plant. She
asked employee J. J. Walker, in the the presence of another
employee, Dirk Fennell, what he thought about the Union.
Walker said that unlike Patton, who thought that the Union
would hurt (the employees) if it came in, he thought it would
hurt if the Union did not come in. Patton told Walker, ‘‘I
don’t know, J. J., Frank’s just liable to pack up and leave.’’
Patton testified that she does not recall telling Walker that
she thought a union would hurt the Company. She said she
does not think she told Walker that Frank would be liable
to pack up and leave if the Union came in.
On another occasion in December 1989, Patton, in the
presence of employees Lubiniecki, Minteer, and Goodgasell,
belittled employees who had been laid off because of their
union activities, when she said they should not receive the
Christmas bonus (of $25) because of the ‘‘damn union.’’
About a week before the January 12, 1989 election, she
harassed Dirk Fennell and J. J. Walker, both employees in
the lamination department, because of their union activities,
and coupled the harassment with a threat of loss of jobs and
closure of the plant if the employees selected the Union. She
1151DLUBAK CORP.
56 On the list, in addition to Fennell’s name, were the names of
Jimmy Walker, Tracy Reuter, Phyllis Lubiniecki, and Rena Bellotti.
told Fennell and Walker that ‘‘if we didn’t like our jobs
here, why didn’t we just quit.’’ She said she was afraid that
if the Union came in, ‘‘Frank Dlubak would pack his bags
and leave, then we’d all be out of a job.’’ Patton denied
making those statements to Fennell. She stated she did not
remember having a conversation about the Union with
Fennell in mid-December.
Rena Bellotti, a laminator/insulator, proclaimed her sup-
port for the Union by wearing a union T-shirt on the two
nights preceding the election. She testified that prior to that
she and Marti Patton, her supervisor, had been very friendly,
but for several months afterwards, Patton ostracized her by
refusing to talk to her or make eye-contact. Bellotti heard
from two coworkers, J. J. Walker and Dirk Fennell, that Pat-
ton had told them she was afraid the plant would close down
if the Union came in.
Patton denied that Bellotti had worn a union T-shirt prior
to the election, or that she stopped talking to her after the
election. She said everyone was quiet after the election.
A day or two before the election, Patton created the ap-
pearance of surveillance of employees’ union activities, cou-
pled with an implied threat of retaliation, when she singled
out employees who had worn a union T-shirt by posting a
list of their names in the lamination division work area, with-
out further explanation. Dirk Fennell wore a union T-shirt on
the 2 days preceding the election. On the next work day,
after he first wore the T-shirt, Fennell observed a list of
names attached to the window behind Patton’s desk. On the
piece of paper, which was located in an area customarily
used by Patton to post notices to her crew, were the names,
without any further explanation, of those employees who had
worn union T-shirts the day before.56 Tina Goodgasell took
the list down, but another similar list replaced it the next
day. This time the list remained posted for several days.
When Fennell questioned her about the purpose of the lists,
Patton denied knowing why the names were posted; how-
ever, Fennell, who was familiar with Patton’s handwriting,
testified that the lists appeared to be in her handwriting.
Fennell’s testimony concerning the list was corroborated by
J. J. Walker.
Patton said that she had a conversation with J. J. Walker
about the Union, during which he asked her about a list of
names. She said she told him she did not know what he was
talking about.
Having had the opportunity to hear the testimony of the
witnesses and to evaluate their credibility while on the stand,
I find that the employee-witnesses are more credible than
Martha Patton.
As in connection with testimony concerning statements or
actions by Frank Dlubak and Benjamin Claypool, the Re-
spondent pointed out several instances in which employee-
witnesses testified to events or conversations not contained in
their prehearing affidavits given to Board agents. I find that
this fact in no way diminishes or shakes their credibility. The
witnesses in the press of events may well have forgotten to
mention some incidents, or they may have mentioned them
and the Board agent may have failed to note them. But,
whatever the explanation may be, after observing the em-
ployee witnesses testify, and observing their demeanor on the
stand, I conclude that they testified truthfully.
After observing Martha Patton’s testimony, and observing
her demeanor, I conclude that her denials are not credible.
She was a reluctant witness, appeared ill-at-ease, and, at
times she was evasive in her answers and unable to recall
what she said.
Accordingly, I credit the testimony of the employee wit-
nesses, and discredit the testimony of Martha Patton, and I
find that the General Counsel has proven by a preponderance
of the evidence that Patton made the statements, and took the
actions attributed to her. I find that she created the appear-
ance of surveillance; coercively interrogated employees about
their union activities and views; threatened employees with
plant closure and loss of jobs and wages if the employees
of Dlubak Corporation selected a union as their collective-
bargaining representative; disparaged and belittled employees
because of their union activities; and, impliedly threatened
employees with unspecified reprisals because of their union
activities, by posting lists of the name of employees who en-
gaged in union activities. Her actions violated Section 8(a)(1)
of the Act.
d. Employer’s communications about the Union. The evi-
dence conclusively establishes that the Employer, through its
owner and president, Frank Dlubak, and supervisory per-
sonnel, principally Plant Manager Claypool and Supervisor
Martha Patton, threatened employees with loss of jobs,
wages, and benefits, and closure of the plant because, Re-
spondent maintained, the Union would make unreasonable
demands, resulting in strikes, increases in the Company’s
costs, decreases in its profitability, all of which would result
in loss of customers because of the higher prices it would
have to charge.
In NLRB v. Gissel Packing Co., supra, 395 U.S. at 617,
the Supreme Court, after noting that employers have a free
speech right to communicate their views to employees, fur-
ther pointed out that Section 8(c) of the Act:
merely implements the first Amendment by requiring
that the expression of ‘‘any views, argument, or opin-
ion’’ shall not be ‘‘evidence of an unfair labor prac-
tice,’’ so long as such expression contains ‘‘no threat
of reprisal or force or promise of benefit’’ in violation
of Section 8(a)(1). Section 8(a)(1), in turn, prohibits in-
terference, restraint or coercion of employees in the ex-
ercise of their right to self-organization.
In discussing the standards for evaluating an employer’s
statements, the Court said at 395 U.S. at 618–619:
Thus, an employer is free to communicate to his em-
ployees any of his general views about unionism or any
of his specific views about a particular union, so long
as the communications do not contain a ‘‘threat of re-
prisal or force or promise of benefit.’’ He may even
make a prediction as to precise effects he believes
unionization will have on his company. In such case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s be-
lief as to demonstrably probable consequences beyond
his control or to convey a management decision already
arrived at to close the plant in case of unionization. See
Textile Workers v. Darlington Mfg. Co., 380 U.S. 263,
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 395 U.S. at 620.
58 395 U.S. at 619.
274, n. 20 (1965). If there is any implication that an
employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities
and known only to him, the statement is no longer a
reasonable prediction based on available facts but a
threat of retaliation based on misrepresentation and co-
ercion, and as such without the protection of the First
Amendment. We therefore agree with the court below
that ‘‘[c]onveyance of the employer’s belief, even
though sincere, that unionization will or may result in
the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is
capable of proof.’’ NLRB v. River Togs, Inc., 382 F.2d
198, 202 (C.A. 2d Cir. 1967).
The Supreme Court, in Gissel, said that an employer can
avoid crossing the line between ‘‘so-called permitted pre-
dictions and proscribed threats’’ by making his views known
without engaging in ‘‘brinksmanship.’’ At least, said the
Court, ‘‘he can avoid coercive speech simply by avoiding
overstatements he has reason to believe will mislead his em-
ployees.’’57 The Court said that the Board could reasonably
conclude that the ‘‘import’’ of the employer’s message ‘‘was
not to predict that unionization would inevitably cause the
plant to close but to threaten to throw employees out of work
regardless of the economic realities,’’ where, among other
factors, ‘‘the petitioner had no support for its basic assump-
tion that the union, which had not yet even presented any de-
mands, would have to strike to be heard.’’58
Much the same situation prevails in the instant case. The
Respondent’s threats that the Union would present unreason-
able demands which would result in strikes, increase in the
Company’s prices and cause loss of customers, loss of profit-
ability, lowering of wages and loss of benefits, and ulti-
mately, plant closure and loss of jobs, were not based in any
degree upon objective fact. There is, for example, no basis
in objective fact for threats that the Company would be
forced to increase its prices if the employees chose a union,
which, in turn, would cause a loss of customers, and would
create the economic necessity of closing or moving the plant,
laying off employees, or reducing wages or benefits. Dlubak
and his supervisory personnel had no rational basis for con-
cluding that a union, in general, or this Union, in particular,
would make unreasonable demands, or would intentionally
precipitate a strike, or, in fact, would take any action result-
ing in loss of profitability of the Company. Neither Frank
Dlubak, nor his management officials and supervisors, it ap-
pears, had any prior dealings with the Charging Party Union.
They had no knowledge, nor any rational basis upon which
they might surmise, what demands the Union would make in
collective bargaining, or that the Union would be arbitrary,
capricious, or unreasonable in negotiating with the Company.
Vague rumors of other plant closings as a result of unioniza-
tion are no substitute for objective fact. NLRB v. Gissel
Packing Co., supra.
The statements which Dlubak, Claypool, and Patton made
to the Company’s employees were unrelated to economic ne-
cessity. They were not based on objective fact, nor did they
represent demonstrably probable consequences beyond the
Company’s control. In the words of the Supreme Court, in
Gissel, the statements were not reasonable predictions
‘‘based on available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without the pro-
tection of the First Amendment.’’
Accordingly, I find that threats of reprisal, ranging from
specific threats to fire or layoff union supporters, to unspec-
ified threats of retaliation, made by Frank Dlubak, Benjamin
Claypool, and Martha Patton violated Section 8(a)(1) of the
Act. So also did foundationless predictions by company offi-
cials and supervisors that selection of a union by the employ-
ees would inevitably lead to strikes, and loss of jobs, wages,
and benefits, because the Union would make unreasonable
demands which would precipitate strikes and would drive up
the Company’s prices, drive away customers, destroy the
Company’s profitability, and, ultimately, force closure of the
plant.
e. Doorway incident. The General Counsel contends that
Martha Patton, the supervisor of the lamination department
in the glass division, violated Section 8(a)(3) and (1) by
pushing aside an employee, because the employee was a
union supporter. The Respondent argues that the shoving in-
cident did not occur, and even if it did, the relationship to
the employee’s union activities is too tenuous to justify find-
ing a violation.
In late January 1989, Phyllis Lubiniecki, a laborer in the
lamination department, who had made her support for the
Union known by wearing a union T-shirt the night before the
election, met Martha Patton, the supervisor of the lamination
department, approaching from the opposite direction, at a
doorway between the hall and the insulating room.
Lubiniecki testified that Patton pushed her aside and went
through the doorway. Lubiniecki felt that she had the right-
of-way, because she was half way through the doorway when
Patton pushed her aside. Neither Lubiniecki nor Patton said
anything to each other on this occasion. Lubiniecki also stat-
ed that she had a friendly relationship with Patton, but after
making her support for the Union known, Patton was very
cold towards her.
Patton testified that she did not know if Lubiniecki wore
a union T-shirt; she stated that she had never saw anyone
wearing a union T-shirt. She did not remember an incident
in which she allegedly pushed Lubiniecki aside as they were
both going through a doorway.
The evidence concerning the doorway incident involving
Lubiniecki and Patton is equivocal. I cannot find from the
evidence that either one of them clearly had the right of way
through the doorway. Even assuming that such an incident
occurred, it appears that Lubiniecki was no more prepared to
yield to Patton than Patton was prepared to yield to
Lubiniecki. Under these circumstances, I do not find that the
doorway incident amounted to an unfair labor practice. It
could just as easily have been no more than a case of two
stubborn people being equally rude and inconsiderate to-
wards each other. Under these conditions, the General Coun-
sel has not met its burden of proof by a preponderance of
the evidence.
1153DLUBAK CORP.
59 Stephen B. Meleason has been employed by Dlubak Corporation
since 1983. He has been a crew chief in the Company’s aluminum
division for a little over 3 years.
60 Jeffrey S. Snyder, a crew chief in the aluminum division, has
been employed by Dlubak Corporation for 7 years.
f. Notice restricting movement of employees. In October
1988, Steven B. Meleason59 saw Claypool post a notice in
several areas of the aluminum shop. The notice, which an-
nounced restrictions on the movement of employees within
the plant, was similar to a notice which had been posted for
1 day approximately 6 months earlier. Meleason stated that
other than on that occasion, he and members of his crew had
been permitted to leave their work areas, and it had not been
necessary for members of his crew to check with him first.
The October 1988 notice remained posted for 2 to 3 weeks.
Claypool told Meleason that the notice meant that if anyone
wanted anything from a vending machine they were to get
it and come straight back to their shop area. Claypool told
Meleason that Meleason was accountable for the notice re-
maining posted, and he wanted Meleason to report the name
of any person who might take it down.
Crew Chief Jeffrey S. Snyder60 saw the notice restricting
movement of employees. He was not aware of any such pol-
icy before October 1988. Employee Todd Placek, on the
other hand, while not aware of any specific rule against it,
said that he did not think he was allowed to go to other de-
partments if he did not have business there.
Dlubak Corporation’s chief executive officer, David
Bazzano, testified that it was company policy that employees
should move about through the plant only with the permis-
sion of their crew chiefs. He said that he had a memo to that
effect posted in 1987, and, on October 13, 1988, after he no-
ticed that it had been torn down, and directed Ben Claypool
to repost it. He told Claypool to make sure that people were
aware of the policy.
The intimidating impact on employees of the sudden im-
position of restrictions on their movement coinciding with
the beginning of a union organizing campaign is obvious.
Bazzano’s explanation that no linkage was intended is unbe-
lievable. Even assuming that the notice had been posted,
however briefly, 6 months previously, it is implausible that
Bazzano failed to notice its absence for 6 months, and only
coincidently took notice of the fact and acted to have the no-
tice posted again after a union organizing drive had begun
in the plant.
The General Counsel, citing Sands Motel, 280 NLRB 132
(1986), and Erie Technological Products, 218 NLRB 878
(1975), contends that Bazzano’s real purpose was ‘‘to stifle
communication between its employees regarding the Union.’’
I find that to be a reasonable inference which can be drawn
from the evidence of record.
Accordingly, I find that CEO David Bazzano violated Sec-
tion 8(a)(1) and (3) of the Act by directing the posting of
a notice restricting the movement of employees, in retaliation
for their engaging in union activities and to impede commu-
nication among the employees.
II.
a. Discharge of William P. Plunkard. It is undisputed by
the parties that William P. Plunkard, whose nickname is
‘‘Buck,’’ an employee of Dlubak Corporation in the alu-
minum division’s pan shop, was discharged on October 6,
1988. At issue is the question of whether he was discharged
for cause, as contended by the Respondent, or in retaliation
for his union support and union organizing activities, as con-
tended by the General Counsel and the Charging Party.
In October 1988, Respondent operated two pan shop shifts
of two people per shift. The first shift worked from 7 a.m.
to 3 p.m., the second, or afternoon shift, worked from 3 to
11 p.m. It was usual at that time for the pan shop personnel
to work a considerable amount of overtime. On October 5,
1988, the two pan shop employees working the afternoon
shift were William P. Plunkard, an employee of Dlubak Cor-
poration since 1985, and Greg Crissman, who had worked
for Dlubak Corporation for about 3 years. Plunkard was the
senior employee (in terms of time employed by Dlubak Cor-
poration) on that shift, and he had the added responsibility
of keeping certain written records of the pan shop’s produc-
tion during his shift. He did not have the title of crew chief,
however.
It appears to be undisputed that Plunkard and Bruce
Offredi, the senior pan shop employee on the morning shift,
and, apparently the senior employee on both shifts, wanted
additional pay for performing recordkeeping duties relating
to the pan shop’s daily production, and, from time to time,
jointly and individually, made such requests to Benjamin
Claypool. As of October 5, 1988, however, neither of them
received any extra pay for performance of their record-
keeping duties.
The recordkeeping duties performed by Plunkard included
keeping track of the time he and Crissman spent on each job
and recording the times on a timesheet, checking job folders,
and determining the order in which jobs were to be per-
formed, and maintaining a record of the jobs performed on
his shift. Plunkard also had responsibility for checking mate-
rials and stock on hand to make sure that the pan shop did
not run low or out of materials. It appears that Offredi per-
formed similar recordkeeping duties for the day shift.
Plunkard was initially contacted by Brion Smith and Kevin
Dosch about signing a union authorization card on Tuesday,
October 2, 1988. On October 3, 1988, Plunkard received two
cards from Smith and Dosch, one for Greg Crissman and one
for himself. On the afternoon of October 3, 1988, Plunkard
distributed additional union authorization cards to Bruce
Offredi and John Osche, the morning shift pan builders, and
to at least three other employees. On October 4, 1988,
Plunkard spoke to David Plunkard, his brother, about signing
a union authorization card.
On October 5, 1988, approximately one-half hour before
the afternoon shift started, Benjamin Claypool asked David
Crotallo what he knew about a union getting started. Crotallo
replied that there were rumors about a union going through
the plant. During the conversation, Claypool asked if Buck
Plunkard had been handing out union authorization cards.
Claypool also questioned the other members of Crotallo’s
crew about the Union, and, he told the crew that he would
be back that night, but not to tell anyone.
Claypool testified that he went to the plant about 10:30
p.m. on October 5, 1988, to check on a water problem.
Claypool said he looked into the pan shop and saw Plunkard
and Crissman standing there. About 25 minutes later, he re-
turned, and saw them standing in the same spot. When they
saw Claypool coming, Crissman went to get another pan, and
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
61 Plunkard testified that he was working a 10-hour shift that day.
62 Bazzano testified that Plunkard was not the first employee ter-
minated for insubordination.
Plunkard went to the lunchroom, which doubled as an office
for the pan shop, to get another job set up. Claypool said he
looked at the paperwork on which is recorded the amount of
time spent on each job, and saw that it was filled out through
1 a.m. Claypool objected to the fact that Plunkard had com-
pleted the timesheet for the entire shift, although the shift
was not yet completed, and told Plunkard to do the paper-
work the right way. Plunkard replied that if he received 50
cents an hour more, he would do the paperwork. Claypool
also stated that Plunkard had cleaned up the shop, and ap-
peared to be finished working for the night, even though they
had 2 hours remaining on their shift.61
Plunkard acknowledged that he had filled in the timesheets
for the entire 10-hour shift, even though 2-1/2 hours of
working time remained. Plunkard told Claypool that no one
had instructed him on how to fill out the timesheets. He said
that if he and Crissman did not complete the job they were
going to be working on by quitting time, he would leave the
job for Offredi. Plunkard denied that he told Claypool he
was not going to do the paperwork until he got more money.
He acknowledged that he did say to Claypool ‘‘if you don’t
like the way I do the paperwork, give it to Greg Crissman.
Why should I have to do it because I am the senior man.’’
That evening, after Claypool had left, Plunkard wrote the
following message in a notebook which he and Offredi used
to communicate with each other about both personal and
work-related matters: ‘‘No more paperwork. I don’t know
how. Show me the right way. Fuck it, no paper work at all.
[Signed, ‘‘Buck.’’]’’
The next morning, Claypool testified, he found the note
from Plunkard in a notebook in the pan shop area. Claypool
stated that the note pad from which he took the note was al-
ways there on the desk, and he had looked in it on many
occasions to make sure the top priority jobs had been set up.
He said that the two pan shop shifts used the notebook to
pass information between them concerning top priority jobs.
Claypool stated that notebook was called ‘‘Bruce and Buck’s
Love Book,’’ and that Bruce Offredi and Buck Plunkard had
started it. Other employees did not write notes in the note-
book. Claypool acknowledged that the notebook was not one
which the Company required to be kept.
Claypool stated that took the note from the notebook, and
the paperwork, and showed them to Bazzano. He rec-
ommended to Bazzano that Plunkard be discharged for in-
subordination. Bazzano told him to call Plunkard at home,
and tell him he was fired.
Claypool stated that he knew before October 5, 1988, that
Offredi and Plunkard occasionally filled out their paperwork
ahead of time, and he had in the past talked to them about
that. He said that although he had to speak to Offredi about
filling out the paperwork in advance, he was getting pretty
good about doing as he was told. He said that Offredi did
not refuse to fill out the paperwork.
Claypool stated that he did not mention the union orga-
nizing campaign to Plunkard, and that he did not know that
Plunkard was engaged in union activity, and did not fire him
for union activity. He admitted that he did not tell Plunkard
to do the paperwork for that evening over again.
Bruce Offredi testified that he and Buck Plunkard used the
notebook as a means of communicating between the two
shifts about uncompleted work. Offredi said the notebook
was called, ‘‘Bruce and Buck’s Logbook.’’ The notebook
was normally left on the desk, and they did not intend for
it to be used by supervisors. They also used it for passing
personal nonjob related notes, such as jokes.
Offredi stated that it was his practice to record in advance
the last job which he would be working on during a shift and
complete the timesheet before the shift ended. He stated on
the first day of each week, he would fill in the time required
for doing the paperwork, lunchtime, cleanup time, and mis-
cellaneous time for the entire week, for himself and John
Osche, who worked with Offredi. Offredi testified that he did
not receive any instructions from management concerning
how to fill out the required paperwork until October 6, 1988,
after Buck Plunkard had been fired.
On October 6, 1988, at about 2 p.m., Claypool placed a
telephone call to Plunkard, at his home, and told him to
come in and pick up his pay, and go sign up for unemploy-
ment compensation. When Plunkard asked Claypool if that
meant that he was fired, Claypool told Plunkard to take it
any way he wanted. The next day, while cleaning out his
locker at the plant, Plunkard had a conversation with
Claypool and Dan Porter, a supervisor in the glass depart-
ment, during which Claypool told Plunkard that he was being
fired for insubordination based upon the note which Plunkard
had left in the logbook which he and Offredi used, and be-
cause his paperwork had not been done correctly.
On the same day, Plunkard spoke to David Bazzano, the
Chief Executive Officer of Dlubak Corporation, about being
fired. Bazzano told Plunkard that it was Claypool’s decision
to fire him. Bazzano told Plunkard that he had been fired be-
cause of the note which Plunkard had left for Offredi, and
because he had filled out the paperwork wrong.
Based on Claypool’s recommendation that Plunkard be
fired for insubordination, Bazzano testified that he authorized
Plunkard’s discharge.62 Bazzano said that Claypool had told
him that he had come to the plant about 10 p.m., the pre-
vious evening, and had noticed Plunkard sitting idle and the
pan shop cleaned up, even though the shift did not end until
1 a.m. Claypool said that he had looked at the paperwork,
and found that it had already been completed to 1 a.m. He
said that he told Plunkard to put the times down as each job
was completed, not in advance. According to Claypool,
Plunkard refused. Claypool gave Bazzano the note, taken
from the notebook in the pan shop, signed by Plunkard.
Bazzano stated that Plunkard’s refusal to follow Claypool’s
instructions put him on the edge of being fired, and the note,
stating that his fellow workers should not listen to Claypool,
was definite grounds for dismissal.
Bazzano testified that Plunkard said that he would do the
paperwork for more money, but he had not been trained to
do the paperwork and did not know how. Bazzano said he
confirmed to Plunkard that he was fired. At one point in his
testimony, Bazzano said that Plunkard told him that he re-
fused to do the paperwork, later, however, he said that he did
not hear Plunkard say that. Bazzano acknowledged that he
was not sure whether or not Claypool told Plunkard to do
that night’s paperwork over again.
1155DLUBAK CORP.
63 Smith had been laid off on October 5, 1988, and had not been
recalled.
64 The fact that Claypool knew beforehand that both Plunkard and
Offredi took what might be termed short cuts in their recordkeeping,
but evidently took no prior strong action to put a stop to it, suggests
that the practice was not nearly as egregious as Claypool, in his tes-
timony, professed.
On October 6, 1988, Bruce Offredi asked Benjamin
Claypool why Plunkard had been fired. Claypool replied that
Plunkard was fired for insubordination, and because he was
a troublemaker and instigator.
Later, on October 24, 1988, Claypool said to Plunkard,
‘‘I’m fed up with you asking for a fifty cent raise and caus-
ing trouble, and Bruce [Offredi] asking for the same raise
and stuff.’’ Plunkard asked Claypool why he had not issued
a written or verbal warning. Claypool replied that he did
things the way he wanted to.
In December 1988, Plant Owner Frank Dlubak told Crew
Chief Jeffrey S. Snyder that Plunkard was not here because
he refused to do his paperwork, and that was an automatic
dismissal. He said that he did not need anyone who did not
want to work together as a team, and, referring to Plunkard
and Brion Smith,63 Dlubak said, ‘‘Those guys aren’t here for
one reason only, they’re not here because I don’t want them
here, and as far as I am concerned they’ll never work here
again.’’
Upon a prima facie showing by the General Counsel that
protected activity was a motivating factor in an employer’s
discharge of an employee, the burden shifts to the employer
to show that it would have discharged the employee even in
the absence of the protected activity. 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. Transpor-
tation Management Corp., 462 U.S. 393 (1983); Huttig Sash
& Door Co., 300 NLRB 93 (1990).
Proof of motive, except in the rather rare situation in
which motive is clearly stated, is necessarily by circumstan-
tial evidence. Here, the General Counsel has made a strong
prima facie showing that union activity was a motivating fac-
tor in Plunkard’s discharge.
The chain of circumstantial evidence, based on the testi-
mony of employees of Respondent, including William
Plunkard, all of whose testimony I do find to be credible,
convincingly shows that Plunkard’s discharge was pretextual.
There is strong evidence of Claypool’s antipathy to unioniza-
tion of Dlubak Corporation, generally, and strong evidence
that he believed that Plunkard was involved at an incipient
union organizing campaign at Dlubak Corporation, and sin-
gled out Plunkard at the inception of the union organizing
campaign to make an early example of him, for the purpose
of intimidating other employees. Further, there is credible
evidence that Respondent’s treatment of Plunkard was dis-
parate. Respondent knew long beforehand that both Offredi
and Plunkard were in the habit of filling out timekeeping
records in advance, but did little to curb that practice, and,
unlike Plunkard, who was fired, took no disciplinary action
against Offredi for similar practices; indeed Claypool testi-
fied that there were still times when Offredi filled out
timekeeping records in advance, but, he said, Offredi was
getting better about it. The pretextual nature of Plunkard’s al-
leged offense, coupled with Respondent’s disparate treatment
of Plunkard, Claypool’s awareness of Plunkard’s involvement
in the union organizing campaign, and the timing of
Plunkard’s discharge in relation to his protected union activ-
ity, are sufficient to support the inference that the protected
activity was a motivating factor in Claypool’s discharge deci-
sion. Huttig Sash & Door Co., supra.
There is credible evidence that Plunkard, although not one
of the employees who attended the first union organizing
meeting on September 30, 1988, began distributing union au-
thorization cards on October 3, 1988. On October 5, 1988,
Claypool asked another employee if Plunkard had been hand-
ing out union authorization cards, and questioned the em-
ployee and other members of his crew about union orga-
nizing activities at the plant. Claypool told the crew members
that he would be back to plant that night, but not to tell any-
one.
Late in the evening of October 5, 1988, at about 10:20
p.m., Claypool appeared in the pan shop area, and confronted
Plunkard over certain recordkeeping practices which
Claypool, by his own admission, knew that both Plunkard
and Bruce Offredi, the senior employee in the pan shop and
the senior employee on the daytime pan shop shift, used. On
the evidence, I find that the encounter was not one of
chance. Rather, Claypool deliberately sought out Plunkard
that night, with the intent of the provoking an incident,
which conveniently, and from Claypool’s perspective prob-
ably not unexpectedly, turned up in the form of record-
keeping practices which he well knew that not only
Plunkard, but Offredi, as well, used. The fact that he singled
out Plunkard, whom he suspected of being involved in the
incipient union organizing campaign, at a time when
Plunkard was on duty, but Claypool was not, supports the
conclusion that the confrontation and Claypool’s suspicions
about Plunkard’s union organizing activities are related.64
In any event, the evidence clearly shows that Plunkard did
not disobey or refuse to comply with with any directive from
Claypool that night. Claypool did not tell him to change the
existing records, nor did Plunkard tell Claypool that he
would not keep the records in the future. The plain inference
to be drawn from the incident is that Claypool came to the
plant that night, with the intent of finding something which
he could use to make an example of Plunkard.
For reasons stated more fully in part I, above, I find that
Benjamin Claypool is not a credible witness. Over the period
from October 1988 to the election in January 1989, he time
and again demonstrated extreme antiunion animus, and a de-
termination to pressure the employees he supervised not to
support the Union. His denial under oath that he had engaged
in 8(a)(1) violations set out in part I, above, was contrary to
the evidence and was false. I do not find his testimony that
he did not fire Plunkard because he had engaged in union
activity to be anymore truthful.
As justification for firing Plunkard, Claypool, who rec-
ommended discharge, and CEO Bazzano, who approved it,
relied on a note which Claypool found the next morning in
a notebook which Offredi and Plunkard, who worked dif-
ferent shifts, used to communicate with each other about job-
related and other nonjob-related matters. It is undisputed that
they were not required by the Company to keep a notebook
for that purpose, and, there is no claim by the Company that
the notebook containing the note from Plunkard was fur-
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
65 Smith was originally hired by Respondent in September 1979,
and was promoted to foreman, a position he held for 2 years until
he was laid off in 1987. After being laid off, he worked for another
employer for 5 months before returning to work for Dlubak Corpora-
tion in the summer of 1987. When he returned to work, he was paid
at the rate of $9 per hour, rather than the new employee starting rate
of $4 per hour, and received 2 weeks of vacation, as he had before
being laid off. The Company granted 2 weeks of vacation to em-
ployees with 5 years of service. Smith testified that when he re-
turned to work for the Dlubak Corporation, CEO Bazzano told him
there was no problem with his keeping his seniority. After being laid
off on October 7, 1988, Claypool told him that his seniority date
was 1 year. If his seniority date is considered to be September 1979,
there were a number of employees with less seniority than he had
who were not laid off. If his seniority date is considered to be the
summer of 1987, Mark Gorog, who seniority is less, was recalled
ahead of Smith.
nished by the Company or was company property. The un-
disputed evidence is that the notebook was the property of
Offredi and Plunkard, and that they used it for their own
convenience and their own ends. Thus, the insubordination,
if that is what it was, was not committed by Plunkard in the
performance of any company-assigned duty.
Further, the note, although intemperate, does not clearly
state a refusal to perform assigned recordkeeping duties.
Taken out of context, refusal is one element of the note, cer-
tainly. However, read as a whole, the note also expresses
frustration about a lack of training from the Company con-
cerning how they wanted the records kept, and a desire on
Plunkard’s part for such training. Thus, I conclude that the
meaning of the note is equivocal, and, clearly, Claypool and
Bazzano chose to give it the worst possible interpretation.
Not only did Claypool and Bazzano give the note, which
the evidence shows was never intended to be communicated
to management, the worst possible interpretation, they took
the action of firing Plunkard without affording him any op-
portunity to explain his intention. And, not only did Claypool
and Bazzano act precipitously, they chose the harshest puni-
tive action, ignoring other forms of lesser punishment which
might have been equally appropriate, even assuming that
Plunkard was insubordinate. For example, they could have
reprimanded Plunkard, reassigned the recordkeeping duty to
the other member of the pan shop’s afternoon shift, or even,
suspended Plunkard for a time. That none of these or other
options were discussed, added to their failure to give
Plunkard even the most rudimentary due process of giving
him a chance to explain himself, confirms that the note and
its contents were seized upon by Claypool and Bazzano as
an excuse to rid the company of a suspected union supporter.
I find that the reasons given by Claypool and Bazzano for
firing Plunkard are pretextual. Respondent has not overcome
the strong prima facie evidence of union animus by showing
that Plunkard would have been fired for cause in the absence
of his union activity. The contention by Respondent that
Plunkard was fired because he refused to complete certain
paperwork associated with his job is unpersuasive. Respond-
ent has failed to present any convincing evidence that it con-
sidered insubordination to be automatic grounds for dis-
missal. The evidence convincingly shows that Respondent’s
treatment of Plunkard was disparate. Even though Claypool,
and thus, Respondent, knew beforehand that both Offredi and
Plunkard filled out timesheets in advance, Offredi and
Plunkard were never informed that they risked discharge if
they repeated the practice, nor was any effort made to train
them in the Company’s preferred method of recordkeeping,
not, that is, until after Plunkard had been fired. Neither was
Offredi fired for doing the same thing for which Respondent
asserts it fired Plunkard. I conclude that there is insufficient
evidence to corroborate Respondent’s claim that the dis-
charge of Plunkard was consistent with punishment adminis-
tered in the past to other employees who committed similar
acts of insubordination.
Any possible lingering doubt concerning Respondent’s dis-
criminatory motives in firing Plunkard were resolved against
Respondent by the statement made by Plant Owner Frank
Dlubak, who said of Plunkard and Brion Smith, another
known union supporter, that ‘‘those guys aren’t here for one
reason only, they’re not here because I don’t want them here,
and as far as I am concerned they’ll never work here again.’’
I find that Respondent has not met its burden under Wright
Line of overcoming the General Counsel’s prima facie case
of discriminatory discharge because of antiunion animus by
showing that it would have discharged Plunkard even in the
absence of his union activity. Cf. Eddyleon Chocolate Co.,
301 NLRB 887 (1991); Family Foods, 300 NLRB 649
(1990). Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act by terminating the employment of
William Plunkard because he joined, supported, or assisted a
union.
b. Layoff of employees. On October 7, 1988, Respondent
laid off seven of its aluminum division employees: Mark R.
Gorog, Kevin Dosch, Mark A. Kijowski, Nicholas J. Kuchta,
Brion Smith, Jeffrey Copeland, and Ron Vantine. Of those
employees, Mark Kijowski was not recalled until January 14,
1989, and Brion Smith and Kevin Dosch have not been re-
called at all. The remainder were recalled approximately a
week after being laid off. The General Counsel contends that
the aluminum division employees were laid off in retaliation
for their union organizing and support activities. Respondent
contends that the employees were laid off for business rea-
sons.
The Respondent contends that the layoff was prompted by
a slowdown in work for the aluminum division, and the
seven employees laid off were the seven employees with the
lowest seniority, in terms of time employed by the Company.
Except for Brion Smith, the General Counsel does not chal-
lenge the assertion that the employees laid off were lowest
in seniority in the aluminum division.65
Steven B. Meleason, a crew chief in the aluminum divi-
sion for 3 years, testified that work in the aluminum division
slowed down prior to the October 7, 1988, layoff. Earlier
that week, Ben Claypool told him that the aluminum divi-
sion, which had been operating three shifts a day, would
probably be cut back to two shifts. He stated that would only
affect Mark Gorog and Mark Kijowski, and they would have
the option of transferring to the glass division for a week or
so. Meleason said that prior to the October 7 layoff, layoffs
were by seniority.
Jeffrey S. Snyder, also a crew chief in the aluminum divi-
sion, testified that prior to the layoff, Ben Claypool told him
that work in the aluminum division would be slow for 3 to
4 days, and that employees in the aluminum division could
be transferred to the glass division or outside maintenance,
in place of being laid off. Snyder said that in the past, lay-
offs and recalls had been by seniority. Shortly before the lay-
1157DLUBAK CORP.
66 Bowser had accepted a voluntary layoff.
67 Smith, Dosch, and Kijowski were still on layoff in November
1988.
68 Kijowski said that he was aware that in the past employees were
transferred to other divisions to avoid a layoff. He added, however,
that past layoffs by the Company had not always been based on se-
niority. Kijowski said that he considered the Company’s layoff pol-
icy to be unfair and that was one of the reasons he contacted the
Union.
69 Mark Gorog, a less senior employee, was recalled after being
on layoff for 1 week.
70 The Company appears to have asked employees from time to
time to volunteer to be laid off. Employee Robert Bowser accepted
a voluntary layoff during the week Dosch and the others were invol-
untarily laid off.
off, Claypool said that ‘‘they’re trying to get a goddamn
union in here again. If they want to try to get a union in
here, they’ll all be laid off.’’ In December 1988, Claypool
said that neither Brion Smith nor Bill Plunkard would ever
work for the Company again.
Snyder stated that none of the employees who were laid
off were offered transfers to other divisions. Following the
layoff, Claypool stated that from then on there would be no
transfers between the glass and aluminum divisions.
Snyder testified that the workload in the aluminum divi-
sion was heavy during the week following the layoff. The
first of the laid-off employees to be recalled were Nick
Kuchta and Bob Bowser. Claypool told Snyder that he was
not to allow Bowser and Kuchta to work together, or to wan-
der through the shop. Snyder stated that he had never re-
ceived instruction like that before.66
Snyder stated that during December 1988, Frank Dlubak
said that he did not want a union in the plant and would not
have one. He spoke of the men on layoff, stating that he
wanted only people who would work together as a team, and
that the reason that the men were on layoff was because he
did not want them at the plant, and they would never work
there again.
David Crotallo, a glass cutter, testified that on October 5,
1988, Benjamin Claypool asked questions about a union get-
ting started. Claypool specifically asked if Brion Smith,
Kevin Dosch, and Mark Kijowski had been handing out
union authorization cards. On several occasions, he heard
Benjamin Claypool state that the laid-off employees should
not be getting a bonus given by the Company, because of
their union activities. In November 1988, he heard Claypool
state that the aluminum division employees on layoff would
not be recalled.67
After Bowser and Kuchta were recalled, the aluminum di-
vision worked either 5 10-hour or 6 8-hour days a week until
March 1989. The overtime was mandatory. In the past when-
ever the aluminum division had been reduced to two shifts,
it was rare to work overtime. At about the same time as the
layoff in the aluminum division, the Company hired new em-
ployees in the glass division.
Approximately a week after the October 7 layoff, Nick
Kuchta, Jeff Copeland, Mark Gorog, and Ron Vantine were
recalled. At about the same time, the aluminum division per-
sonnel began working 6 days a week, sometimes 10 hours
a day. Prior to that, the average workweek had been 5 days
a week, 8 hours a day. The extended work schedule re-
mained in effect until Easter 1989.
Five of the seven employees laid off on October 7, 1988,
had attended the union organizing meeting on September 30,
1988, and at that time, signed union authorization cards. The
employees who attended the meeting were Nicholas Kuchta,
Mark Gorog, Mark Kijowski, Brion Smith, and Kevin Dosch.
Jeffrey Copeland signed a union authorization card, given to
him by Nicholas Kuchta, on October 4, 1988.
Mark Kijowski testified that on October 4, 1988, Ben
Claypool told him and Mark Gorog that work in the alu-
minum division was becoming slow, but Claypool did not
want to lay anyone off. Claypool told Kijowski that as the
senior man, he had the opportunity to transfer to boxing, the
cutting table, or plant 2.68 Claypool told them to think about
it, and he would get back to them. Instead, on October 7,
1988, Claypool told Kijowski that the aluminum division was
going down to one shift, and that Kijowski would be laid off.
Kijowski was laid off on October 7, 1988. He was not re-
called until approximately January 15, 1989. He testified that
the recall was not conducted by seniority.69
Kijowski testified that he had contacted the Union in mid-
September 1988, and that he met with the Union’s represent-
ative, John Shinn, On September 30, 1988. Also attending
the meeting were Dlubak employees Mark Gorog, Nick
Kuchta, Bob Bowser, Brion Smith, and Kevin Dosch. All the
employees who attended the meeting signed union authoriza-
tion cards, and Kijowski agreed to solicit cards from other
employees. Kijowski started distributing cards to Dlubak em-
ployees on October 2, 1988, and in the first week he ob-
tained 28 signed cards.
Mark Gorog corroborated Kijowski’s testimony concerning
their conversation with Ben Claypool on October 2, 1988.
He testified that Claypool said they were in a slow period,
and he would give Kijowski and Gorog their pick of places
they could work: the Kittanning plant, boxing, or the cutting
table.
Gorog stated that the aluminum division had been working
5-day weeks before the layoff, but between October 17,
1988, after he was recalled, through March 1989, there was
no shortage of work in the aluminum division, which worked
6 days a week throughout the period.
Kevin Dosch testified that he has been on layoff since Oc-
tober 7, 1988, and that less senior employees, including
Mark Kijowski, Jeff Copeland, Ron Vantine, and Mark
Gorog, have been recalled. Dosch testified that earlier in the
week preceding October 7, Claypool had asked him if he
wanted a voluntary layoff,70 which Dosch declined. Claypool
assured him that the layoff would be by seniority. Claypool
told him that there was to be a cut back of one shift, and
that the layoff was not permanent.
Dosch, who attended the September 30 union organizing
meeting and signed a union authorization card, said that on
October 4, 1988, while in the company parking lot, he gave
a union authorization card to another employee, at a time
when Greg Claypool, the son of Ben Claypool, was standing
nearby. He could not say with certainty that the younger
Claypool overheard his conversation with the other em-
ployee.
Nicholas Kuchta said that about a week before he was laid
off on October 7, 1988, Ben Claypool told him that work in
aluminum was getting slow. Claypool said they were going
to move Kijowski and Gorog. Towards the end of the week,
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 Bazzano said the layoff was by inverse seniority, that is the per-
son with the least time with the Company were laid off first. He said
that Smith had been terminated as a supervisor of the aluminum di-
vision, and after a break in employment of several months, was re-
hired as a production worker. He acknowledged that when Smith
was rehired, he was given wages and benefits of a longer term em-
ployee.
72 The three employees Bazzano did not recall were Brion Smith,
Kevin Dosch, and Mark Kijowski. The four who were recalled were
Mark Gorog, Jeffrey Copeland, Ron Vantine, and Nicholas Kuchta.
73 Where the employer has not offered a credible explanation for
the timing of the layoff and selection criteria, the fact that an em-
ployee who may not have engaged in union activity was laid off
with others who had, does not preclude a finding that discriminatory
motives lay beneath the timing and selection. Eddyleon Chocolate
Co., supra at 891. The timing of the layoff, coinciding as it did with
the beginning of the union organization campaign, together with Re-
after hearing a rumor there was to be a layoff, Kuchta asked
Claypool whether there would be a layoff, or would people
be moved around. Claypool did not give him an answer. In-
stead, Claypool later spoke to Kuchta’s wife by telephone,
and informed her that Kuchta had been laid off.
Kuchta was aware that employees had been moved to
other divisions in the past to avoid layoffs. Approximately 1-
1/2 years’ earlier, he and Jeff Copeland had been given a
choice of being laid off or moving to the glass division.
Kuchta said that in the past layoff were mostly by seniority,
and, as far as he knew, recalls were by seniority. One em-
ployee, however, had been laid off out of seniority, and
never recalled. Kuchta stated that a few times in the past 5
years, the Company had laid-off employees and never re-
called them. He said it was the way they fired people.
After being recalled, Kuchta worked a 6-day shift until the
holidays, when the shift changed to 5 days a week for a cou-
ple of weeks. After the holidays, he reverted to a 6-day shift.
During this period, the aluminum division operated with two
shifts a day; however, for a time, it operated with a third,
one man, shift. He stated that the aluminum division has not
gone back to three full shifts since the October 7 layoffs.
David Bazzano, Dlubak Corporation’s CEO, testified that
he made the decision to lay off employees Smith,71
Kijowski, Dosch, Kuchta, Copeland, Vantine, and Gorog,
based on information he received from Barbara Fratta that
work in the aluminum division was extremely low. He said
that he decided to cut back the aluminum division from three
shifts to one shift. He stated that all those laid off were em-
ployed in the aluminum division, but a couple were in the
wrapping or packaging area of the department.
Bazzano acknowledged the Company hired new employees
for the glass division the same week as the layoff occurred.
He said that the glass division was busy, and he intended to
put the newly hired people into full-time positions after 90
days. According to Bazzano, transferring people from the
aluminum division to the glass division for a week or two
would not have accomplished his overall goal of augmenting
the glass division work force. He denied that he had author-
ized Ben Claypool to ask employees if they would be inter-
ested in moving to another department prior to the layoff.
Bazzano stated that the layoff lasted 1 week, during which
the aluminum division remained at one shift. After a week,
four of the laid-off employees were recalled so that the alu-
minum division could go to two shifts, to meet its increased
workload. He stated that although the Company usually fol-
lowed seniority in recalling laid-off employees, it did not al-
ways do so, and he decided to recall on the basis of ability,
not seniority, in this instance. He decided to recall the four
employees he thought would be most interested in ‘‘getting
the product out the door.’’ He decided not to recall the other
three until the workload required.72
Bazzano denied that he knew at the time of the layoff that
any of the employees selected for layoff were engaged in
union activities, but, he acknowledged that at the time of the
recall he knew through letters which the Company received
from the employees that Mark Gorog, Kevin Dosch, Brion
Smith, and Bob Bowser had engaged in union activities.
According to Bazzano, he learned that the three laid-off
employees had been active in making phone calls to other
employees and visiting them at their homes, as well as at the
shop during the afternoon and midnight shifts. Claypool told
him that the purpose of the phone calls was to get other em-
ployees to support the Union. Bazzano said that it was his
opinion that these three employees were more likely to put
their communications with other employees concerning their
feelings about the Union ahead of the job functions which
they performed. He said he wanted people who would be
more likely to get the product out the door and to continue
working, and who would keep whatever opinions they held
as a secondary matter. Although Bazzano denied that he de-
cided not to recall them because of visible signs of their sup-
port of the Union, he admitted that he felt that these three
employees would be more interested in ‘‘conveying the idea
of the union,’’ than in ‘‘producing the product and getting
it out the door.’’ He added that if there was enough work
for three shifts, he would have recalled these three employ-
ees, also.
Benjamin Claypool denied that he said anything to
Kijowski before the layoff about moving employees to other
areas of the plant. He denied talking to Kuchta about the
Union, at all. He denied that he told any employees that
other employees who wanted the Union would be laid off or
not recalled because of their union activities. He acknowl-
edged that he told Crew Chief Snyder that recalled employ-
ees were not allowed to work together, but he admitted tell-
ing Snyder that they were to stay in position and do the
work. He denied that he told Snyder that they were not al-
lowed to leave the work area together.
I credit the testimony of the employees over that of CEO
Bazzano and Benjamin Claypool. Neither of them has been
candid in their testimony concerning incidents relating to the
union organizing campaign. The employees, on the other
hand, were, with the exception of Bowser, still employees of
Dlubak Corporation, and underwent considerable risk in testi-
fying against company interests.
Applying the Wright Line analysis, I find that the General
Counsel has established a prima facie case that protected
union activity was a motivating factor in Respondent’s layoff
of seven of its employees on October 7, 1988. Respondent’s
awareness that at least four of the employees it laid off were
openly engaged in union activities, and the timing of the lay-
off in relation to that activity, and to the discriminatory dis-
charge of William Plunkard 2 days before because of his
open union activities, are sufficient to support the inference
that the employees’ union activities were a motivating factor
in their layoff.73 It is clear that earlier in the week of the
1159DLUBAK CORP.
spondent’s well-established antiunion animus, is sufficient to support
the inference that it laid off one or two employees whose union ac-
tivities were not known, in order to reach at least four of the prin-
cipal union organizers, with higher seniority, whose union activities
were open and unconcealed.
74 The comparisons of the number of hours worked in 1988 with
hours worked by employees the year before is inconclusive. The
question here is not whether good economic reasons existed for a
layoff, but whether the layoffs were meant to be an object lessons
to the Company’s employees that it did not pay to support the
Union.
75 Especially since several of the laid-off employees had previous
experience in the glass division.
layoff, Benjamin Claypool told two or more employees that
they would be allowed to switch to other departments be-
cause work in the aluminum division was getting slow. That
did not occur, however, and on October 7, 1988, those two
employees and five others were laid off. It may well be that
work in the aluminum division dropped off.74 However, it is
evident that over several days time, something happened to
cause the Company to layoff seven employees, rather than to
temporarily assign them to other departments of the Com-
pany, as had been its past practice. There is a strong infer-
ence that the ‘‘something’’ which happened was the start of
the union organizing campaign.
By CEO Bazzano’s own admission, the Company hired
new employees for the glass division at or about the same
time it laid off seven aluminum department employees. His
excuse that he needed permanent employees to augment the
glass division is unconvincing,75 not to mention being rather
callous.
Motive can seldom be proved by direct evidence. Here the
circumstantial evidence is compelling that the circumstance
which prompted the Company to change from its announced
intention to temporarily transfer aluminum division employ-
ees to other jobs in the plant to a surprise layoff was the in-
volvement of six of the seven aluminum division employees
in a newly started union organizing drive. There is strong
evidence that Benjamin Claypool learned of the union orga-
nizing activity soon after it started, and suspected that Smith,
Kijowski, and Dosch, three of the employees laid off on Oc-
tober 6, 1988, were involved in distributing union authoriza-
tion cards.
It was no mere coincidence that six of the seven employ-
ees laid off on October 7 had signed union authorization
cards, and that five of them had attended the initial union
meeting on September 30, 1988, and were active in the union
organizing campaign which was just getting started. The
Company made no pretense of neutrality, but immediately
made its opposition to a union known to its employees. The
timing of the layoff, which coincided with the beginning of
a union organizing campaign among its employees and in-
volved at least four of the principal solicitors of union au-
thorization cards and most outspoken union sympathizers,
rather strongly points to the conclusion that the layoff and
the union organizing campaign were connected. The layoff
was motivated by the Company’s desire to cut short the
union organizing drive and intimidate its employees into not
supporting the union.
Moreover, whatever may have been Bazzano’s reason for
laying off the seven employees, he admitted that involvement
in union activities was a factor he considered in determining
which employees to recall first, and that he discriminated
against three of the employees because he believed that they
were actively soliciting support for the Union from other em-
ployees. That discrimination, standing alone, is a violation of
the Act.
It is well established that layoff of employees because of
activities on behalf of labor organization violates Section
8(a)(3) and (1). Hambre Hombre Enterprises v. NLRB, 581
F.2d 204 (9th Cir. 1978). The Respondent has not met its
burden under Wright Line of overcoming the General Coun-
sel’s prima facie case by proving that it would have laid off
the employees at the time it did in the absence of the union
activities of at least six of the seven employees who it laid
off. Accordingly, I find that Respondent violated Section
8(a)(1) and (3) of the Act by laying off the seven employees,
and by failing to recall employee Mark Kijowski until Janu-
ary 14, 1989, and failing to recall employees Brion Smith
and Kevin Dosch, at all.
c. Transferring Tracy Reuter. On February 27, 1989,
Tracy Reuter, a laminator in the glass division, was trans-
ferred from plant 1 (the Freeport plant) to plant 2 (the West
Kittanning plant), where she remained until a week-and-a-
half later she was transferred back to plant 1. The General
Counsel contends that she was transferred because she was
a union supporter and wore a union T-shirt. The Respondent
argues that she was transferred because the only person on
her crew who was not a union supporter was being harassed,
and something had to be done about it. The Respondent con-
cedes, however, that at the time of the transfer, there was no
proof that she was to blame for the harassment.
Tracy Reuter, a 3-year employee of Dlubak Corporation,
was a member of Tina Goodgasell’s team in the lamination
department. On February 27, 1989, her mother received a
telephone call from Ben Claypool, during which he left the
message that Tracy Reuter had been transferred to the West
Kittanning plant. She testified that when she asked Claypool
why she had been transferred, he told her it was because she
was boisterous and her crew was always goofing off. He also
told her that the transfer would not have happened if she,
and, apparently other members of her crew, had not worn
union T-shirts. She said that he told her that she knew the
way Dlubak Corporation was run, and if she did not like it
she should find another job. She stated that the first time she
wore a union T-shirt was the night before the election, and
that the only members of her crew who did not wear union
T-shirts were Tina Goodgasell, her crew chief, and Lisa
Minteer.
Reuter also testified that Claypool told her that her crew
chief, Tina Goodgasell, had agreed with her transfer. Reuter
said that when she asked Goodgasell if that was true, she de-
nied it.
Reuter stated that she heard that someone put a razor in
Lisa Minteer’s hardhat. She denied any knowledge of the
event. She said that Ben Claypool told her that she did not
get along with other crew members, and there was bickering
back and forth.
David Bazzano testified that he decided to transfer Reuter
to plant 2, because Ben Claypool had reported to him that
there was horseplay on her shift when management was not
there, and that someone had cut another employee’s hat with
a razor and put razors in the fingers of an employee’s gloves.
Bazzano stated that Claypool mentioned that Reuter was on
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
76 Pursuant to the stipulation, Respondent withdrew testimony by
CEO David Bazzano that the $50 bonus was related to the Com-
pany’s revenues.
77 Respondent argued that it had in the past paid a series of small
bonuses of $25 to $50, four times a year; however, there is little evi-
the shift, and that she might or might not have been involved
in that activity. Bazzano stated that Reuter only worked at
plant 2 for a short time, and that she did not lose any pay
or benefits. While at plant 2, she did construction work. At
plant 1 she had been a laminator. Bazzano denied that her
transfer had anything to do with her support for the Union.
Bazzano further stated that within the same timeframe,
Lisa Minteer was transferred to another shift, because she
was the subject of a lot of criticism for holding different
views from most of the others on her shift. Bazzano said that
he had not heard of any further trouble on Reuter’s shift after
she returned from plant 2.
Benjamin Claypool testified that Lisa Minteer had com-
plained about her treatment because she was the only mem-
ber of her crew who was not for the Union, and asked to
be put on another crew. She complained that someone had
put razor blades in her glove. Claypool stated that in order
to put a stop to that activity, he transferred Tracy Reuter,
who was a boisterous person, to plant 2. He acknowledged
that he had no proof that she had done anything. He denied
having the conversations which Reuter testified he had with
her.
It is evident that the impetus for Reuter’s transfer came
from Benjamin Claypool, and Bazzano did little more than
approve of his decision. It is also clear that Claypool selected
Reuter for transfer because he considered her to be bois-
terous, and she was a known union supporter. I do not find
Claypool to be a credible witness insofar as his antiunion ac-
tivities are concerned. His actions in this instance are entirely
consistent with his antiunion bias and his persistent harass-
ment and intimidation of union supporters.
In this instance, by his own admission, Claypool singled
out a union supporter for punitive action without any evi-
dence that she had been guilty of any misbehavior, other
than being boisterous.
Respondent admitted in its answer to the complaint that
Tracy Reuter’s transfer was a mandatory subject for the pur-
pose of collective bargaining, and that transferred Reuter
without prior notice to the Union and without affording the
Union an opportunity to negotiate and bargain as the exclu-
sive bargaining representative of the employees in the appro-
priate unit for collective-bargaining purposes.
By transferring Reuter to another plant, over her objec-
tions, for no other reason than she was a union supporter,
Respondent discriminated against her, and in doing so viola-
tion Section 8(a)(1), (3), and (5) of the Act.
d. Bonuses of $500 and $50. It is undisputed that Re-
spondent paid its employees bonuses of $500, on or about
October 13, 1988, and $50, on or about February 16, 1989.
The General Counsel contends that in the absence of a
business reason justifying the awarding of a $500 bonus to
its employees only 8 days after the earliest notice the Com-
pany could have had of the union organizing campaign, the
timing of the bonus and the unusually high amount compel
a finding that the Respondent, by its apparent largesse, was
attempting to dissuade its employees from supporting the
Union. Respondent contends that the decision to pay the
bonus had been made in July 1988, months before the union
organizing campaign began, and that payment was made as
soon as possible after September 30, 1988, the close of the
fiscal year.
The General Counsel further contends that the payment of
the $50 bonus on February 16, 1989, constituted an implied
reward for voting against the Union, and that it was a man-
datory subject for collective bargaining. Respondent contends
that the bonus was paid after the election, and was consistent
with the Company’s practice of rewarding its employees for
good fiscal year quarters. Respondent admitted in its answer
to the complaint that the $50 bonus was a mandatory subject
for collective bargaining, and that it granted the bonus with-
out prior notice to the Union and without affording the
Union an opportunity to negotiate and bargain as the exclu-
sive representative of its employees in the appropriate unit
for collective-bargaining purposes.
In the course of this case, the General Counsel served a
subpoena for financial records on Respondent, including
records of revenue and profit or loss for the fiscal years end-
ing September 30, 1986, September 30, 1987, and September
30, 1988. Respondent refused to comply with the subpoena,
arguing that the payments of the two bonuses (the $500
bonus paid on October 13, 1988, and a $50 bonus paid on
February 16, 1989) were not within the critical period, and
disclosure of information concerning profitability could be
used against the Company by its competitors or the Union.
I found the information requested in the subpoenas to be rel-
evant and not burdensome, and I issued a protective order re-
stricting the General Counsel from disclosure outside of the
NLRB of financial information provided by the Respondent
in compliance with the subpoena. It is undisputed that Re-
spondent thereafter continued to refuse to comply with the
subpoena.
The parties entered into a stipulation at the hearing that the
Respondent would not offer any financial justification for
granting the $500 bonus. Likewise, it was stipulated that the
Respondent would not offer any evidence indicating a finan-
cial justification for granting its employees a $50 bonus, on
February 16, 1989. The parties agreed that the General Coun-
sel and the Charging Party may argue that an adverse infer-
ence should be drawn against Respondent because it failed
to turn over, as ordered, the financial information requested
in the subpoena.76
The General Counsel urges that because of Respondent’s
failure to comply with the subpoena for financial informa-
tion, an adverse inference should be drawn against the Re-
spondent that ‘‘the documents, if produced would not support
any defense advanced by Respondent, but would support
counsel for the General Counsel’s contention that Respond-
ent granted the bonuses to dissuade its employees from sup-
porting the Union.’’
I find that the Respondent’s failure to comply with the
General Counsel’s subpoena for financial information is un-
excused. Accordingly, I hereby grant the General Counsel’s
request that an adverse inference be drawn against the Re-
spondent that Respondent had no financial justification for
granting the two bonuses.
Testimony by Dlubak employees established that the Re-
spondent had in the past made a practice of paying its em-
ployees bonuses once or twice a year,77 usually in the sum-
1161DLUBAK CORP.
dence to corroborate that argument. In any event, it appears to be
undisputed that Respondent had not in the past given a bonus to its
employees in the amount of $500.
78 There is testimonial evidence that the Respondent also gave its
employees a $25 Christmas bonus in December 1988, the same
amount it had given its employees in December 1987. The General
Counsel has not advanced an argument that this bonus, if indeed
there was one, violated the Act.
79 The letter is addressed: ‘‘To: All Employees,’’ ‘‘From: Frank,’’
‘‘Date: February 16, 1989.’’ CEO Bazzano testified that he signed
the name, ‘‘Frank,’’ with Frank Dlubak’s approval. The text of the
letter is as follows:
I realize that over the past few months there have been some
tense moments here at our company. I want to congratulate all
of you who have put your personal feelings aside and continued
to do your jobs well in the face of this turmoil. Keep up the
good work, and again thank you one and all.
80 This case is distinguishable, therefore, from Huttig Sash & Door
Co., 300 NLRB 93 (1990), in which the Board found that announce-
ment during a union campaign of a previously unannounced, but ex-
isting, benefit did not violate Sec. 8(a)(1).
mer and at Christmastime.78 The bonuses ranged from $20
to $100.
CEO David Bazzano testified that he participated in the
decision, made in July 1988, well in advance of the union
organizing campaign, to pay the employees a $500 bonus as
soon as possible after the end of the fiscal year, September
30, 1988. Bazzano said he had no knowledge of a union’s
attempt to organize the plant at that time, and the Company
did not pay the bonus of $500 in October 1988 for any rea-
son related to the union organizing campaign.
Bazzano stated that in early to mid-February 1989, he de-
cided, with Frank Dlubak’s authorization, to pay the employ-
ees a bonus of $50. He stated that he made the decision a
week to a week and a half before it was paid. He further
stated that General Counsel’s Exhibit 51 is a letter describing
why the Company paid its employees a $50 bonus in Feb-
ruary 1988.79 Bazzano explained that his reasons for paying
the bonus were that despite the tensions created by the
unionization campaign, in which there was a large group of
employees against the Union, and a group for the Union, the
employees worked hard, did a good job, and got things done,
resulting in a very good quarter.
An employer’s grant of benefits during an organizational
campaign may be an unlawful interference. In Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944), the Su-
preme Court said: ‘‘The action of employees with respect to
the choice of their bargaining agents may be induced by fa-
vors bestowed by the employer as well as by his threats or
domination.’’ The Supreme Court, in NLRB v. Exchange
Parts Co., 375 US 405, 409 (1964), said that the danger is
in the timing of increases and benefits:
The danger inherent in well-timed increases and bene-
fits is the suggestion of a fist inside a velvet glove. The
employees are not likely to miss the inference that the
source of benefits now conferred is also the source
from which future benefits must flow and which may
dry up if it is not obliged.
In Crown Tar & Chemical Works v. NLRB, 365 F.2d 588,
590 (10th Cir. 1966), the court said the ‘‘granting of eco-
nomic benefits by the unilateral action of an employer while
union organizational efforts are underway, or while a rep-
resentation election is pending, is a violation of Section
8(a)(1) and 8(a)(5) of the Act.’’ The Board, however, has
said that the ‘‘granting of benefits during an election cam-
paign is not per se unlawful where the employer can show
that its actions were governed by factors other than the pend-
ing election.’’ American Sunroof Corp., 248 NLRB 748
(1980). Among the factors which the Board will consider in
determining whether an employer’s grant of benefits during
an organizational campaign was unlawful interference are
whether the employer had previously told the employees of
the benefit change, and whether the benefit change was con-
sistent with the employer’s past practice. Crown Tar &
Chemical Works v. NLRB, supra; Automated Products, 242
NLRB 424 (1979).
The Board’s standard in preelection benefit cases is an ob-
jective one. As stated by the Board in B & D Plastics, 302
NLRB 245 (1991):
To determine whether granting the benefit would tend
unlawfully to influence the outcome of the election, we
examine a number of factors, including: (1) the size of
the benefit conferred in relation to the stated purpose
for granting it; (2) the number of employees receiving
it; (3) how employees reasonably would view the pur-
pose of the benefit; and (4) the timing of the benefit.
In determining whether a grant of benefits is objection-
able, the Board has drawn the inference that benefits
granted during the critical period are coercive. It has,
however, permitted the employer to rebut the inference
by coming forward with an explanation other than the
pending election, for the timing of the grant or an-
nouncement of such benefits. [Citations omitted.]
In B & D Plastics, supra, 2 days before an election, the
employer granted its employees a paid day off, no strings at-
tached, and held a cookout at which it delivered the final
message in its antiunion campaign. The Board found that the
employees, including those who elected not to attend the
cookout, received a substantial bonus because of the upcom-
ing election, and could reasonably have viewed the employ-
er’s actions as an attempt to influence their votes in favor
of the employer’s position. That, the Board said, was suffi-
cient to require that the election be set aside, unless the em-
ployer came forward with a ‘‘persuasive business justifica-
tion for granting the benefit when it did.’’ The Board went
on to find that the employer’s asserted business justification,
that the cookout was necessary as a means to gather all three
shifts together, was insufficient to warrant a different result.
The Board said that the employer’s ‘‘business justification’’
had little or nothing to do with ‘‘business,’’ but amounted
only to a claim that the paid day off and cookout were the
most effective way to influence the election in its favor.
In this case, there is no evidence to corroborate CEO
Bazzano’s claim that the $500 bonus had actually been de-
cided upon by the Company several months before the union
campaign started, or that it had been previously announced.80
Further, the $500 bonus was significantly greater than the
amounts it had paid in bonuses in the past. It appears that
Respondent had not previously awarded bonuses during the
fall of the year, and that the bonuses which it had previously
given to its employees, were considerably smaller. The $500
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bonus, it appears, was much larger than any previous bonus
by a multiple of as much as five times. For these reasons,
I do not credit Respondent’s explanation for awarding to its
employees an abnormally large bonus within a matter of ap-
proximately 2 weeks after a union campaign started.
The potential impact on the employees created by paying
a substantial bonus at the commencement of a union organi-
zational campaign is evident. Whether intended by the Re-
spondent or not, by virtue of the timing of the substantial,
previously unannounced bonus, the employees could hardly
miss the message that the source of their benefits was the
Company, not the Union. Not only was the $500 bonus ex-
cessive in relation to previous bonuses, and paid shortly after
the start of a union campaign, it also was paid shortly after
the Respondent had summarily discharged one employee for
actively supporting the Union, and laid off a group of union
supporters, including several of the most active union sup-
porters. As stated by the Board in Crown Zellerbach Corp.,
225 NLRB 911, 913 (1976),
[I]t is not always necessary for an employer to shout
from the rooftops its power and willingness to reward
or punish employees depending on their response to a
union campaign. Indeed, we are satisfied that only a re-
markably obtuse employee would fail to see in this Re-
spondent’s grant of benefits and nearly simultaneous
discharge of a leading union proponent the proverbial
‘‘fist inside a velvet glove.’’ N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405, 409 (1964).
The adverse inference which I draw from the Respondent’s
unlawful refusal to comply with the General Counsel’s law-
ful subpoena for financial information is that there was no
increase in the Respondent’s gross revenues or profits which
would support the payment to its employees of a bonus in
the order of magnitude of perhaps as much as five times the
amount of any previous bonus. Although CEO Bazzano
claimed that the decision to the pay the bonus was made
months before the start of the union organizational campaign,
as noted, there is no evidence to support that assertion. To
the contrary, the evidence indicates that the payment of the
$500 bonus was a radical departure from Respondent’s pre-
vious practices, both in terms of the amount of the bonus,
which was disproportionately large compared to any previous
bonus, and in terms of the time of year when the Respondent
had previously paid much smaller bonuses.
Implicit in the testimony of CEO Bazzano concerning the
February 16, 1989, bonus of $50 is that, indeed, it was re-
lated to the union organizational campaign. Although the
election had been held, the results were inconclusive, and all
employees knew that the question of whether or not the
Charging Party Union would be the employees’ bargaining
agent was far from settled. CEO Bazzano offered the expla-
nation that he meant the bonus to be a reward to all the em-
ployees for working hard despite the tensions created by the
divisive election campaign. Viewed from the employees’ per-
spective, however, the bonus could reasonably be considered
as a reward for not selecting the Union as the employees’
bargaining agent, and a reminder of the benefits that the Re-
spondent had in its power to bestow in the future.
Even viewed in the light most favorable to Respondent,
the award of the $50 postelection bonus was a benefit related
to job performance, and, as conceded by Respondent in its
answer to the complaint, was a mandatory subject of bar-
gaining. Boise Cascade Corp., 304 NLRB 94 (1991).
I find, therefore, that Respondent had no ‘‘business jus-
tification’’ for the two bonuses which, in fact, had little or
nothing to do with ‘‘business.’’ Instead, the bonuses amount-
ed only to a transparent attempt by the Respondent to con-
vince its employees that it, and not the Union, was the
source of any benefits which they might expect to receive.
The evidence does not support the Respondent’s argument
that there was ‘‘persuasive business justification for granting
the benefit[s] when it did.’’ B & D Plastics, supra. It is a
reasonable inference which the employees were not likely to
miss that the $500 bonus, in October 1988, and the $50
bonus, in February 1989, were intended by the Respondent
to influence them not to select the Union as their bargaining
agent. As such, the bonuses interfered with the employees’
exercise of their Section 7 rights, in violation of Section
8(a)(1) and (3), and, with respect to the $50 bonus, Section
8(a)(5) of the Act, because the Respondent failed to bargain
with the Union as the exclusive representative of its employ-
ees in the appropriate bargaining unit for collective-bar-
gaining purposes.
e. Written warning issued to Bruce Offredi. On November
9, 1988, employee Bruce Offredi received a written warning
from Plant Manager Benjamin Claypool for defacing com-
pany property. The General Counsel asserts that the basis for
the written warning was Offredi’s display of a union insignia
on his hardhat, and, therefore, the written warning violated
the Act. The Respondent admitted in its answer to the com-
plaint that Plant Manager Claypool issued a written warning
to Offredi on November 9, 1988, but denies any violation of
the Act.
The Respondent requires its employees working on the
production floor to wear a hardhat, which, apparently the Re-
spondent furnishes. On November 9, 1988, Plant Manager
Claypool told employee Bruce Offredi to remove the words,
‘‘Solidarity’’ and a union pin from his hardhat. Offredi ini-
tially refused, then after some argument, and a threat by
Claypool to write him up for having an argument, complied
with Claypool’s order. Claypool told him to consider the in-
cident a verbal warning, and left. A short time later, he re-
turned and handed Offredi a written warning for defacing
company property. Other employees testified that they regu-
larly decorated their hardhats with stickers or words, and
were never told by Respondent to remove them.
CEO David Bazzano testified that he learned the next day
that Claypool had given Offredi a written warning for defac-
ing his hardhat. Bazzano said that there was no reason to
give Offredi a written warning for that, and that he had in-
structed Claypool to take it out of Offredi’s file, and to
‘‘throw it away.’’ Bazzano said that it was company policy
to allow the employees to put anything they wanted on their
hardhats. He stated that he did not know if his instructions
to Claypool were ever communicated to Offredi.
There is no question that Claypool exceeded his authority
by selectively issuing the written warning to Offredi for de-
facing his hardhat by wearing a union pin and a union slogan
on it. Claypool singled out for punishment one individual,
from among others who decorated their hardhats with per-
sonal stickers or words, for wearing union paraphernalia on
1163DLUBAK CORP.
81 The stipulation (G.C. Exh. 88), which is signed by CEO
Bazzano for the Respondent and Attorney LaBelle for the Union, is
undated. There appears to be no dispute, however, that it was signed
in November 1988.
82 The document was prepared by Respondent. It is not Dlubak
Corporation’s complete payroll, and includes the name of William
Plunkard, who had been fired in October 1988, and was not on
Dlubak Corporation’s payroll as of November 20, 1988.
83 Not included on the list are the names of two employees, Mark
Livengood and Richard Anthony, whose ballots were challenged by
the Respondent. The parties stipulated that these two employees
were terminated prior to the election, and that the Respondent’s chal-
lenges should be upheld.
his hardhat. His action was discriminatory, and serves to fur-
ther demonstrate his antiunion attitude.
The chief executive officer of the Company, David
Bazzano, testified that the Company had no policy against
employees putting anything they wanted on their hardhats,
and ordered Claypool to remove the warning from Offredi’s
file. Bazzano, however, acted after the fact, and his action
was ineffective in dissipating the impact of the written warn-
ing on Offredi and other employees. Claypool, as plant man-
ager, had the apparent authority to bind his employer by his
actions. Bazzano’s after-the-fact disavowal of Claypool’s ac-
tion, even if communicated to Offredi and other employees,
was too late to undo the chilling impact of Claypool’s re-
prisal against Offredi for exercising his Section 7 rights. At
best, Bazzano’s disavowal is no more than a mitigating fac-
tor.
Citing Republic Aviation Corp. v. NLRB, 324 U.S. 793
(1945), the Board stated in Burger King Corp., 265 NLRB
1507 (1982), enforced in part and denied in part 725 F.2d
1053 (1984), that ‘‘[i]t is well settled that, in the absence of
special circumstances, an employee’s wearing a union button
at work is a protected activity under Section 7 of the Act.’’
In this case, there is no issue of ‘‘special circumstances,’’ be-
cause the chief executive officer of the company testified that
it is the Respondent’s policy to allow employees to wear
anything they wanted on their hardhats.
The Respondent, through its chief executive officer, hav-
ing denied that the Company had any rule against employees
putting the word ‘‘solidarity’’ or a union pin on their hard-
hats, Plant Manager Claypool’s issuance of a written warning
to employee Bruce Offredi for defacing company property in
that manner interfered with Offredi’s exercise of his Section
7 rights, and violated Section 8(a)(1) and (3) of the Act.
III.
a. Unit determination. On October 24, 1988, the Union
filed a petition for certification as the representative of all
Dlubak Corporation’s production and maintenance employees
for collective-bargaining purposes. In a Stipulated Election
Agreement, dated November 14, 1988, signed by David S.
Bazzano, for the employer, Attorney R. Michael LaBelle, for
the Union, and Board Agent Ronald A. Kisak, the appro-
priate collective-bargaining unit was defined as:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Freeport, Pennsylvania, and Kittanning, Pennsyl-
vania, facilities; excluding office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
The parties hereby agree that inasmuch as there is a
dispute with respect to the eligibility of employees em-
ployed in Shipping/Receiving/Purchasing Clerk, Alu-
minum Bending Coordinator and Glass Bending Coor-
dinator classification these employees will vote subject
to challenge.
Sometime in November 1988 the Union and Respondent
signed the Stipulated Election Agreement, the Union and the
Respondent signed a stipulation (G.C. Exh. 88) listing the
names of the Dlubak Corporation employees ‘‘who were
agreed to be included or excluded from the list of employees
eligible to vote’’ in the January 12, 1988 election.81 There
are a total of 69 names included on the list of employees eli-
gible to vote, and 26 names on the list of employees ex-
cluded from voting.
At the hearing, the parties to this proceeding stipulated
that General Counsel’s Exhibit 55, which is entitled ‘‘Dlubak
Corporation Payroll, November 20, 1988,’’ ‘‘accurately re-
flects the complete employee complement employed by Re-
spondent on November 20, 1988, in the job classifications
contained in the unit description found in paragraph 26 of the
complaint.’’82 The parties stipulated that the status of 11 of
the employees whose names are on the payroll list is dis-
puted, but, there is no dispute that the remaining (69) em-
ployees were employed in the bargaining unit.83 However,
the parties further stipulated that three of the employees list-
ed on General Counsel’s Exhibit 55 terminated their employ-
ment with Dlubak Corporation before January 12, 1988, the
day of the election. They are Nicholas G. Relich, whose last
day of employment was November 20, 1988; Gloria J.
Young, whose last day of employment was December 21,
1988; and, Georgia A. Shernock, whose last day of employ-
ment was December 27, 1988. The parties also stipulated
that no new employees were hired between November 20,
1988, and January 12, 1989. Thus, the parties agree that as
of December 27, 1988, the date Georgia A. Shernock’s em-
ployment ended, at least 66 employees were members of the
appropriate unit and were eligible to vote in the election held
on January 12, 1989, and disagree on the status of 11 other
employees.
Following are the names, and the job assignments, of the
66 employees whose inclusion in the bargaining unit as of
December 27, 1989, is not disputed:
Ann Marie Bartoe—Lamination
Kirk A. Bauer—Glass Production
Michael R. Bauer—Glass Production
Robert A. Beale—Lamination
Rena L. Bellotti—Lamination
Sandra L. Berry—Lamination
Charles E. Booher—Glass Production
Kenneth W. Bowser—Glass Production
Robert L. Bowser—Aluminum
Arthur Brendlinger—Maintenance
Richard J. Charney—Maintenance
Gregory L. Claypool—Glass Production
Harriet A. Collar—Lamination
Jeffrey W. Copeland—Aluminum
Barbara A. Cousins—Lamination
James E. Cravener—Glass Production
Elaine Crissman—Lamination
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
84 The names of those employees who voted in election on the
January 12, 1989, are preceded by an asterisk (*).
85 Of these employees, the following voted in the election and
their ballots are challenged: William Plunkard, Timothy Ballas, Fred
Ruppersberger, Kathy Claypool, Nancy Noroski, and Barbara Fratta.
Greg S. Crissman—Glass Production
David A. Crotallo—Glass Production
Frank D. Cushey—Glass Production
Kevin M. Dosch—Aluminum
Donald Lee Emery—Glass Production
Dirk A. Fennell—Glass Production
Todd A. Fennell—Glass Production
Robert K. Fox—Maintenance
Michael J. Ferotte—Glass Production
C. J. Goodgasell—Lamination
Mark R. Gorog—Aluminum
Dana Lynn Hagofsky—Lamination
Rhonda S. Hartman—Lamination
Gary H. Heigley—Glass Production
James S. Hudek—Glass Production
Randy Lee Johns—Aluminum
Mark A. Kijowski—Aluminum
Nicholas J. Kuchta—Aluminum
Bradley N. Kuhn—Glass Production
Douglas J. Leipertz—Glass Production
Ronald M. Lowry—Glass Production
Phyllis Lubiniecki—Lamination
James R. McAfoose—Glass Production
Stephen D. Meleason—Aluminum
John J. Milligan—Glass Production
Kathy Ann Milligan—Lamination
Lisa M. Minteer—Lamination
James H. Mitchell—Aluminum
Bruce A. Offredi—Glass Production
John A. Osche—Glass Production
Todd A. Placek—Glass Production
David C. Plunkard—Glass Production
Connie S. Reed—Glass Production
Tracy D. Reuter—Lamination
Francis K. Righi—Glass Production
Glenn S. Ross—Aluminum
Randy L. Ross—Glass Production
David C. Schuey—Glass Production
Francine J. Schaffer—Lamination
Keith C. Shaffer—Glass Production
Ronald A. Shankle—Glass Production
Thomas Paul Shankle—Glass Production
Brion D. Smith—Aluminum
Jeffrey S. Snyder—Aluminum
Janet L. Toy—Lamination
John J. Valasek, III—Glass Production
Ronald T. Vantine—Aluminum
Jimmy D. Walker—Lamination
Fred A. White—Maintenance.
The employees whose status is in dispute are:84
*Timothy S. Ballas—Glass Production
*Kathy Claypool—Purchasing, Shipping/Receiving
Thomas Ellenberger—Glass Production
*Barbara J. Fratta—Customer Service, Aluminum
Glenn E. Livengood—Glass Production
*Nancy Noroski—Customer Service, Glass Produc-
tion
*William Plunkard—Glass Production
*W. B. Ruppersberger—Glass Production
Timothy A. Shirley—Glass Production
Gary S. Slee—Glass Production
Joseph F. Visnovsky—Glass Production
Of these employees, the General Counsel argues that only
William Plunkard was a member of the bargaining unit. The
Respondent disputes that William Plunkard was a member of
the bargaining unit, and asserts that the remaining 10 em-
ployees were included in the bargaining unit.85
Comparison of the names on General Counsel’s Exhibit
55, the November 20, 1988 payroll, and General Counsel’s
Exhibit 88, the prehearing stipulation of names of employees
included or excluded from the list of employees eligible to
vote, discloses that General Counsel’s 88 does not include all
of the names appearing on General Counsel’s Exhibit 55.
Further, neither General Counsel’s Exhibit 55 nor General
Counsel’s Exhibit 88 is identical to the Excelsior list (G.C.
Exh. 89) supplied by the Respondent for the payroll period
ending November 12, 1988.
Listed on General Counsel’s Exhibit 55, but not on Gen-
eral Counsel’s Exhibit 88, are the names of Lisa M. Minteer,
Timothy Ballas, Kathy Claypool, Barbara Fratta, Nancy
Noroski, William Plunkard, and W. B. Ruppersberger. Ex-
cept for Lisa Minteer, the status of all of these employees
is in dispute. The name of Lisa Minteer is also missing from
General Counsel’s Exhibit 89, the Excelsior list. Listed on
General Counsel’s Exhibit 88, but not on General Counsel’s
Exhibit 55, is the name of Lisa Meyer. All the names listed
in the included column on General Counsel’s Exhibit 88 also
appear on General Counsel’s Exhibit 89. In addition, General
Counsel’s Exhibit 89 also contains the names of Timothy
Ballas, Kathy Claypool, Barbara Fratta, Nancy Noroski, and
W. B. Ruppersberger, none of which appear on General
Counsel’s Exhibit 88, either in the included or excluded col-
umn.
The General Counsel, citing Norris-Thermador Corp., 119
NLRB 1301 (1958), argues that the Board will respect a
written preelection agreement that is expressly made final
and binding as to specified questions of eligibility, unless it
is contrary to the Act or Board policy. It is the General
Counsel’s position, then, that since employees Ellenberger,
Shirley, Reed, Slee, and Visnovsky were excluded from vot-
ing by General Counsel’s Exhibit 88, the preelection stipula-
tion, they should be excluded from the bargaining unit for
the purpose of determining a majority. Respondent, citing
Westlake Plastics Co., 119 NLRB 1434, 1436 (1964), argues
that it is contrary to the Act and Board policy to exclude
probationary employees, such as Ellenberger, Shirley, Reed,
Slee, and Visnovsky. Therefore, Respondent urges that these
employees, whose names appear on General Counsel’s Ex-
hibit 55 (and Jt. Exh. 1), should be included in the bar-
gaining unit.
The preelection stipulation in the instant case does not
meet the criteria set out in Norris-Thermador Corp., supra,
which must be met before the Board will consider a
preelection agreement to be a final determination of eligi-
bility issues. In Norris-Thermador Corp., supra, 119 NLRB
at 1302, the Board concluded that,
1165DLUBAK CORP.
where the parties enter into a written and signed agree-
ment which expressly provides that issues of eligibility
resolved therein shall be final and binding upon the par-
ties, the Board will consider such an agreement, and
only such an agreement, a final determination of the
eligibility issues treated therein unless it is, in part or
in whole, contrary to the Act or established Board pol-
icy. [Emphasis in original.]
Here, there is no provision in the preelection stipulation ex-
pressly providing that it is to be final and binding upon the
parties.
Indeed, in this proceeding, the General Counsel seeks no
more than selective enforcement of the preelection stipula-
tion, clearly negating the proposition that the stipulation is a
final and binding determination of eligibility issues. Relying
upon the determination contained in the preelection stipula-
tion excluding employees Ellenberger, Reed, Shirley, Slee,
and Visnovsky, the General Counsel argues that they should
not be counted as members of the bargaining unit. But, the
General Counsel also argues that Glenn E. Livengood should
not be included and counted, although his name appears in
the included list in the preelection stipulation, and William
Plunkard should be included in the bargaining unit, despite
the fact that his name does not appear at all in the
preelection stipulation. Missing entirely from General Coun-
sel’s Exhibit 55, without any evidence of record to explain
her absence, is the name of Lisa Meyer, whose name ap-
peared on the eligible list in General Counsel’s Exhibit 88.
By failing to object to Lisa Meyer’s absence from General
Counsel’s Exhibit 55, it appears that the General Counsel
and the Union accept the fact that she was not a member of
the bargaining unit at the time of the election. Thus, the Gen-
eral Counsel takes the inconsistent position that the
preelection determination of eligibility contained in the
preelection stipulation is final only as to some employees.
Neither on its face, nor in its implementation as sought by
the General Counsel and the Charging Party, does the
preelection stipulation in this case meet the Norris-
Thermador criteria for enforcement as a final determination.
Accordingly, I find that the preelection stipulation does not
constitute a final, binding determination of the eligibility of
employees Ellenberger, Reed, Shirley, Slee, and Visnovsky.
In any event, the preelection stipulation has been
superceded by the stipulation into which the parties entered
during the hearing concerning which employees should be
included in the bargaining unit, and, thus, were eligible to
vote in the election, and those employees whose status is in
dispute. The parties agreed that 66 employees were includ-
able in the bargaining unit, and disagreed on the status of 11
more employees. The status of those employees whose status
is disputed remains to be determined. By agreement by the
parties, the maximum possible size of the bargaining unit as
of January 12, 1989, was 77 employees.
The name of Connie Reed appears on General Counsel’s
Exhibit 55, the November 20, 1988 payroll list (G.C. Exh.
55). It also appears on General Counsel’s Exhibit 88, the
preelection stipulation, as an excluded employee. The parties
did not stipulate that she was one of the employees on Gen-
eral Counsel’s Exhibit 55, the November 20, 1988 payroll
list, whose status is in dispute. The General Counsel, how-
ever, now contends that she, too, should be excluded from
the unit, because the evidence shows that her employment
status was the same as that of Ellenberger, Shirley, Slee, and
Visnovsky, all of whom the General Counsel argues should
be excluded from the unit based on the parties’ preelection
agreement.
In a recent case, R. H. Peters Chevrolet, 303 NLRB 791,
792 (1991), the Board said that in a stipulated-unit election,
its function is ‘‘to ascertain the parties intent with regard to
disputed employees,’’ and ‘‘if the intent is unclear or the
stipulation ambiguous, then community-of-interest principles
come into play.’’ The Stipulated Election Agreement in this
case specifically includes ‘‘all full-time and regular part-time
production and maintenance employees,’’ and specifically ex-
cludes ‘‘office clerical employees and guards, professional
employees and supervisors as defined in the Act.’’ The par-
ties could not agree in the stipulation on the eligibility of
employees employed as shipping/receiving/purchasing clerks,
aluminum bending coordinator, and glass bending coordi-
nator. Therefore, whether or not employees in these positions
belong in the unit must be determined by using community-
of-interest principles.
An appropriate bargaining unit involving previously unrep-
resented employees is one made up of employees who share
a community of interest, that is, employees who share a com-
mon interest in wages, hours, and other conditions of em-
ployment. ‘‘In defining bargaining units, its [the Board’s]
focus is on whether the employees share a ‘community of in-
terest.’’’ NLRB v. Action Automotive, 469 U.S. 490, 494
(1985). In Kalamazoo Paper Box Corp., 136 NLRB 134, 137
(1962), a case involving unit severance, the Board discussed
factors to be considered in determining whether employees
lack a sufficient community of interest to group them to-
gether for purposes of collective bargaining:
Factors which warranted consideration in determining
the existence of substantial differences in interests and
working conditions included: a difference in method of
wages or compensation; different hours or work; dif-
ferent employment benefits; separate supervision; the
job functions and amount of working time spent away
from the employment or plant situs . . .; the infre-
quency or lack of contact with other employees; lack of
integration with the work functions of other employees
or interchange with them; and the history of bargaining.
In R. H. Peters Chevrolet, supra, the Board found a suffi-
cient community of interest existed between service advisors
and mechanics employed by an automobile dealership, where
they worked under the same supervision, they were required
to take the same yearly examination, they worked together
in preparing estimates, sometimes mechanics substituted for
absent service advisors and one mechanic had previously
been employed as a service advisor, service advisors and me-
chanics took turns working on Saturdays, incomes for both
types of employees potentially could vary, and they received
the same health benefits. The fact that service advisors some-
times gave work orders directly to mechanics, and could re-
quest mechanics to redo work or work overtime, did not dis-
qualify service advisors from inclusion in the unit.
Thus, among the factors which the Board has looked at in
determining whether a community of interest exists are simi-
larity in method of computation of wages or compensation,
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
86 Shirley, Slee, and Reed were hired on October 13, 1988;
Visnovsky was hired on October 16, 1988; and Ellenberger was
hired on October 17, 1988.
hours of work, job functions, employment benefits, common
supervision, and whether there is frequent contact with other
employees and integrated work functions, or whether there is
a prior history of bargaining together.
Thomas Ellenberger, Timothy A. Shirley, Gary C. Slee, Jo-
seph V. Visnovsky, and Connie S. Reed. The evidence indi-
cates that Ellenberger, Reed, Shirley, Slee, and Visnovsky
were newly hired production employees in the glass division
in November 1988.86 It was the Company’s practice to clas-
sify new production employees as part-time employees dur-
ing a 90-day probationary period, even though they worked
full-time hours and performed the same duties as other pro-
duction employees with similar jobs. As Respondent points
out, regular part-time employees are includable in a bar-
gaining unit. However, this case is distinguishable from
Westlake Plastics Co., supra, cited by Respondent, because
here part-time employees were not excluded as a group by
the stipulated election agreement.
Having entered into a stipulation which includes Connie
Reed as a member of the bargaining unit, counsel for the
General Counsel may not now selectively disavow part of the
stipulation, and take a position inconsistent with the stipu-
lated facts at the hearing. Accordingly, I find that employee
Connie Reed was a member of the unit on November 20,
1988, and remained so through March 14, 1989, and, thus
was eligible to vote in the election of January 12, 1989.
There is no question but that these five part-time employ-
ees fact share a community of interest with the other 66 em-
ployees who are undisputed members of the bargaining unit.
These five employees, Connie S. Reed (glass production),
Thomas Ellenberger (glass production), Timothy A. Shirley
(glass production), Gary C. Slee (glass production), and Jo-
seph F. Visnovsky (glass production), differ from the other
glass production employees only in that they were new em-
ployees working during a 90-day probationary period. Their
method of pay (hourly), benefits, duties, supervision, work-
ing conditions, and hours of work were no different than
those of the other glass production employees. The only
basis raised for excluding them from the bargaining unit is
that four of them, Thomas Ellenberger, Timothy A. Shirley,
Gary S. Slee, and Joseph F. Visnovsky, were not included
in the preelection stipulation. As previously stated, I find that
the preelection stipulation is not determinative of the com-
position of the bargaining unit. It is well established that reg-
ular part-time employees are includable with regular full-time
employees in a collective-bargaining unit. Accordingly, I find
that these employees should be included in the bargaining
unit. Adding employees Ellenberger, Shirley, Slee, and
Visnovsky to the 66 employees whose membership in the
unit was not disputed by the parties at trial (a list which in-
cludes the name of Connie Reed), brings membership in the
unit to 70 employees.
William Plunkard. In view of my finding that the Re-
spondent violated the Act by discharging William Plunkard
(glass production) because he engaged in union activities,
which entitles him to reinstatement and backpay, there is no
question but that he should be included in the bargaining
unit.
Adding the name of William Plunkard to the roster of bar-
gaining unit employees raises the number of bargaining unit
employees at the time of the January 12, 1989 election to 71.
Respondent employs both salaried and hourly wage em-
ployees. The difference in the method of computing com-
pensation, however, is not the only significant difference in
the benefits and conditions of employment of salaried and
hourly workers. The Respondent pays the premium for health
insurance covering salaried workers, their spouses, and their
families. Hourly workers receive company-paid health insur-
ance only for themselves; they have the option of purchasing
supplemental health care coverage for their spouses and fam-
ilies at their own expense. Salaried employees also receive
substantially better company-paid life insurance benefits.
Hourly employees normally work a 40-hour week of 5 8-
hour days, with a paid one-half hour lunch period. When
hourly workers work overtime, as, apparently, was often the
practice at Dlubak, they receive overtime pay. Salaried em-
ployees work an 8-1/2 hour day, which includes an unpaid
one-half hour lunch period. Hourly employees work rotating
shifts, and are paid for overtime work. Salaried employees do
not work rotating shift, and do not receive overtime pay.
Hourly workers rotate shifts between the morning or daylight
shift, the afternoon or evening shift, and the night shift. Sala-
ried employees work only during daylight hours. Also of sig-
nificance, it appears that as a practical matter, Respondent
limits layoffs to hourly wage workers.
The remaining six employees whose eligibility for inclu-
sion in the bargaining unit is disputed are all salaried em-
ployees. The General counsel argues that four of these em-
ployees, Timothy Ballas (glass production), Glenn E.
Livengood (glass production), Barbara J. Fratta (customer
service, aluminum), and W. E. Ruppersberger (glass produc-
tion), should be excluded from the bargaining unit because
they are supervisors and/or lack a community of interest with
the other employees who make up the bargaining unit. The
General Counsel argues that Nancy Noroski (customer serv-
ice, aluminum) and Kathy Claypool (purchasing, ship-
ping/receiving) should be excluded because they are office
clerical employees and/or do not share a community of inter-
est with the employees who make up the unit. The Respond-
ent denies that these employees are supervisors or office cler-
ical employees, or that they lack a community of interest
with the other employees who make up the bargaining unit.
Timothy S. Ballas. Company records list Ballas’ depart-
ment as ‘‘glass supervision.’’ Ballas has worked for Dlubak
Corporation for 5 years. He received the title of supervisor
while working at plant 2 when it was in full production.
Since July 1988, he has worked at plant 1, and retains the
job title of supervisor. He is a salaried employee. His current
duties include quality control. He checks architectural and
showcase glass for flaws or deviations from customer speci-
fications. If he is uncertain about a particular piece of glass,
he calls Dan Porter or Ben Claypool, both of whom are un-
disputed statutory supervisors. Ballas also does production
work on special or unusual projects, helps load and unload
glass trucks, delivers and picks up glass to and from cus-
tomers and vendors, and delivers glass to job sites. He helps
crew chiefs go over paperwork for jobs, resolving any prob-
lems or questions that may come up. If there are discrep-
ancies, he gets clarification from Nancy Noroski or Dan Por-
ter. For special jobs, he fills out his own timesheet. His su-
1167DLUBAK CORP.
pervisors are Dan Porter and Ben Claypool, and he is al-
lowed use of Dan Porter’s office. He supervises other em-
ployees assigned to him for special projects. He exercises
independent judgment in quality control matters. In the ab-
sence of Dan Porter and Ben Claypool, Ballas has substituted
as supervisor of the glass employees. He dresses in work
clothes. Production employees seem to be unsure of Ballas’
position, but they regard him as a person to whom they can
go to resolve problems with jobs or paperwork, and they
view his decisions as controlling. He does not have authority
to hire or fire, or discipline employees. He does not rec-
ommend actions affecting the status of employees, such as
promotions, transfers, layoffs, or time off. He does not punch
a timeclock. He stated that his present position is a pro-
motion from crew chief. If he disagrees with a crew chief
on quality control issues, his decision prevails. He works
only the day shift, from 7 a.m. to 3 p.m. CEO Bazzano char-
acterized Ballas as a ‘‘key’’ employee.
On the basis of his duties, I find that Timothy Ballas is
not a statutory supervisor, within the the meaning of Section
2(11) of the Act. However, I also find that he lacks a suffi-
cient community of interest with the hourly production and
maintenance employees to be included with them in the same
bargaining unit. As a salaried employee, Ballas’ interests,
both in fact and as perceived by production workers, are
more closely related to management than to hourly produc-
tion workers. He does not share a common interest with
hourly workers concerning wages, hours, and other working
conditions. There is no similarity in the method by which his
compensation is determined, and he receives better benefits
than hourly workers. Unlike production and maintenance
workers, he does not work rotating shifts, nor does he punch
in on a timeclock. His work place is not among the produc-
tion employees, but in an office which he shares with Dan
Porter, an acknowledged supervisor. Further, Ballas, unlike
production workers, spends an appreciable percentage of his
time away from the plant.
Although Ballas’ duties are production related and he re-
ports to the supervisors of the glass division, there are suffi-
cient dissimilarities which, in the aggregate, clearly show
that he has little in common with hourly workers. He reports
to Dan Porter and Ben Claypool, directly; unlike hourly
workers who report to their crew chiefs, who, in turn report
to Porter and Claypool. Crew chiefs recognize that Ballas’s
position is higher than theirs, and his decisions and instruc-
tions are binding on them. Ballas spends an appreciable
amount of his time away from the plant, unlike production
and maintenance employees. When he is at the plant, it ap-
pears that he spends part of his time in Dan Porter’s office
performing recordkeeping duties, and when he has occasion
to be in production area, whether performing a specialized
production task, himself, performing quality control inspec-
tions, or helping crew chiefs with their recordkeeping duties,
he has authority to direct the work of crew chiefs and pro-
duction employees. Whenever Ballas has contact with pro-
duction employees, it is clear that a superior-subordinate re-
lationship exists. Unlike production workers, he receives a
fixed income as a salaried employee, he does not receive
overtime pay, and he works only on the daylight shift. He
has a degree of independent judgment which hourly workers,
including crew chiefs, do not have. Finally, it appears that
Ballas does not share with hourly workers the risk of being
laid off.
In the absence of a sufficient community of interest with
production and maintenance employees, I find that Timothy
Ballas should be excluded from the bargaining unit, and was
not eligible to vote in the election of January 12, 1989.
Glenn Livengood. Glenn Livengood has been employed by
Dlubak Corporation since 1982. He was promoted to super-
visor in November 1986, a job title which he still holds. He
is a salaried employee, and works only the daylight shift. He
does not punch a time clock. He dresses in work clothes. He
does not receive overtime pay. Company payroll records list
his department as ‘‘glass supervision.’’ CEO David Bazzano
called him a ‘‘very valuable and key employee.’’ Bazzano
stated that he would call Livengood a glass supervisor, but
he has no official title. Bazzano determines his pay.
Livengood’s supervisor is Dan Porter, with whom he
shares an office. He has a wide range of duties in the glass
division. Every Monday, he goes over the employees’ time-
cards, tallies their hours, determines whether the hours
worked by the employee are regular or overtime hours, and
turns in that information to the accounting clerk. On Thurs-
days, he picks up paychecks from the accounting clerk, and
distributes them to the employees. Livengood receives job
folders from Dan Porter and Nancy Noroski, and, after proof
reading them to make sure all necessary information is in-
cluded, hands them out to the crew chiefs. He attends crew
chief meetings, and production meetings attended by the
crew chiefs, Marti Patton (in charge of lamination), Dan Por-
ter, Ben Claypool, David Bazzano, Brian Henry, and Dave
Passarelli. Livengood makes up employee work schedules,
based on instructions he receives from Ben Claypool.
Livengood reviews crew chiefs’ daily reports, on which
are recorded the jobs the crew worked on, the time spent on
each job, and the number of pieces of glass completed. He
tallies the hours worked by the crew members, and if they
do not total 8 hours for each employee, he asks the crew
chief for an explanation. He turns the crew chiefs’ report
over to Brian Henry.
Livengood fixes furnaces in the absence of maintenance
personnel. He also helps unload glass trucks when they ar-
rive, and he fills in for absent glass production workers,
when needed. Livengood is also responsible for quality con-
trol for the Marvin Windows job.
Livengood does not regularly supervise other employees.
He has no authority to discipline employees, or to hire or fire
employees. He does not adjust employee grievances. He has
no authority concerning making personnel changes, nor does
he make recommendations concerning the status of employ-
ees. He has no authority with regard to transfers, layoffs, re-
calls, or rewards.
Glenn Livengood does not meet the criteria to be consid-
ered a supervisor under Section 2(11) of the Act. However,
as in the case of Timothy Ballas, he also lacks a sufficient
community of interest to be included in a bargaining unit
with production and maintenance employees. Livengood ap-
pears to hold a position between the crew chiefs and the
glass division supervisors. He has administrative duties
which neither crew chiefs nor production and maintenance
workers have. These duties involve checking job folders and
assigning jobs to the crew chiefs, resolving production prob-
lems encountered by crew chiefs, collecting and totalling em-
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees’ work hours for purposes of preparing the payroll,
handing out paychecks, and supervising recordkeeping re-
quired of crew chiefs. He also attends production meetings.
He is a salaried employee. He does not share a common
interest with hourly workers concerning wages, hours, and
other working conditions. There is no similarity in the meth-
od by which his compensation is determined, and he receives
better benefits than hourly workers. Unlike production and
maintenance workers, he does not work rotating shifts, and
he does not punch a timeclock. His pay is not subject to
fluctuations, depending upon the hours he works. While he
has frequent contact with crew chiefs, it appears that he has
less frequent contacts with other production and maintenance
employees. While some of his duties require him to be on
the production floor, where production and maintenance em-
ployees work, he shares an office with Dan Porter, where he
performs his administrative duties.
Weighing all the factors, including both those which point
to a community of interest with production and maintenance
employees, and those which do not, it is clear that there are
substantial difference in interests and working conditions.
Livengood’s interests are more closely tied to management
than to hourly workers, and his interests are different from
those of production and maintenance employees. I find that
Livengood does not share sufficient common interest in
wages, hours, and other conditions of employment with pro-
duction and maintenance employees to be included in the
same collective-bargaining unit.
Kathy Claypool. Kathy Claypool is the wife of Benjamin
Claypool, Respondent’s production or plant manager. CEO
Bazzano, who is her direct supervisor, stated that she is a
salaried employee. She is the office coordinator, and she is
also in charge of shipping and receiving, and purchasing for
the Company. She appears on Dlubak Corporation’s payroll
in department 500, office personnel. Her purchasing respon-
sibility is to purchase all materials that are needed to keep
the Company running on a day-to-day basis. She has an of-
fice in the area of plant 1 where the executive offices are
located. She has occasion to go out onto the production floor
in connection with performing her shipping and receiving du-
ties; however, she normally wears dresses and high-heel
shoes, rather than work clothing such as is worn by produc-
tion employees. She coordinates timely shipment of products
with trucking companies and the loading dock.
Kathy Claypool stated that she has been employed by
Dlubak Corporation for 6 years, and that she currently holds
the job titles of purchasing and shipping agent, and office co-
ordinator. She purchases all materials needed to run the
plant. She has purchasing authority without approval up to
$300. She estimated that she spends 30 to 35 percent of her
time in the performance of her purchasing duties. In the per-
formance of her duties as shipping agent, she coordinates all
shipping from the aluminum and glass divisions. She pre-
pares all the necessary paperwork, calls trucking companies
to schedule shipments, and delivers shipping papers to the
loading dock, either in person or by having someone from
the shipping docks pick up the papers. She coordinates with
the aluminum customer service representative, Barbara
Fratta, and the glass customer service representative, Nancy
Noroski, in scheduling shipments. She estimated that she
spends 50 percent of her time in the performance of her ship-
ping duties. She has held the job of office coordinator since
October 1988. She is responsible for ensuring that office
clerical personnel are available to handle office work, and on
occasion will fill in for absent office personnel. She sched-
ules vacations and time off for office clerical personnel, and
handles their gripes and complaints. She has monthly plan-
ning meeting with the office personnel. She estimated that
she spends 15 percent of her time on office coordinating the
work of office personnel. She admitted that she spends 95
percent of her time in the office, and that she dresses for
work in dresses and high-heel shoes.
On these facts, I find that Kathy Claypool has a combina-
tion of clerical and managerial responsibilities. She has an
office in the area of the plant where the Company’s business
offices are located, and she is directly supervised by the
chief executive officer of the Company. She seldom has oc-
casion to go out onto the production floor, and does not
dress appropriately to work in that area of the plant. She per-
forms clerical functions in purchasing supplies and materials
needed for the day-to-day operation of the plant, and in co-
ordinating and scheduling shipping and preparing the nec-
essary paperwork, such as bills of lading, but, in performing
those functions she also exercises a substantial degree inde-
pendent judgment. Her responsibilities as office coordinator
are managerial in nature, but they also include filling in for
absent office clerical employees.
I find that there are substantial differences between her in-
terest in wages hours, and working conditions, compared to
those of production and maintenance employees. As a sala-
ried employee, she enjoys substantially higher pay and bene-
fits compared to hourly personnel. She does not work in the
area of the plant devoted to production, and is not supervised
by production supervisors. In fact, she has little day-to-day
contact with production personnel. Unlike production per-
sonnel, she does not work rotating shifts or punch a time-
clock. Her job functions have no similarity to those of pro-
duction employees. When her employment is evaluated by
the factors set out by the Board in Kalamazoo Paper Box
Corp., supra, it is quite apparent that she does not share a
sufficient community of interest with production and mainte-
nance employees to be grouped with them in a collective-
bargaining unit. Therefore, she should be excluded from bar-
gaining unit, and she was not eligible to vote in the election
of January 12, 1989.
Wilfred Ruppersberger. Wilfred Ruppersberger has been
employed by the Dlubak Corporation for 5 years. He has
held the job title of supervisor for approximately 3 years. He
was promoted to supervisor while working at the West
Kittanning plant (plant 2), at a time when Dlubak Corpora-
tion operated three shifts a day there. Dan Porter, now the
glass division supervisor, was in charge of plant 2, and
Ruppersberger was his assistant. Prior to being promoted to
assistant supervisor, and later to supervisor, he was a crew
chief. He changed from an hourly to a salaried employee
when promoted to assistant supervisor. Since then, Dan Por-
ter was transferred to plant 1 and Respondent reduced pro-
duction and the number of employees at plant 2, but it re-
mained Ruppersberger’s place of duty during the the July
1988 to March 1989 period. There is no indication that his
place of duty or job has changed since then. His job during
that period was to make difficult specialty bends which could
not be done on the production floor at plant 1. During the
period from October 1988 through March 1989, an average
1169DLUBAK CORP.
87 Prior to early 1988, Barbara Fratta’s office was in the aluminum
bending division area. She stated that it was dirty and cold, and the
floors were greasy and slippery, so she wore rubber-soled shoes,
jeans, and a sweater or sweatshirt.
of two to three employees were assigned to work under
Ruppersberger’s supervision at plant 2, and he had authority
to give them directions. Since January 1989, Robert Fox has
been assigned on a regular basis to be Ruppersberger helper
at plant 2. During the period from November 1988 to Janu-
ary 1989, Fred White, who also has the job title of ‘‘super-
visor,’’ worked at plant 2 on a specialty project. Five em-
ployees who worked at plant 2 at various times testified that
they received directions from Ruppersberger, and regarded
him as their supervisor.
Ruppersberger reports to Dan Porter or Ben Claypool. He
usually receives job assignments through Dan Porter, who ei-
ther gives him the job folders or tells him to pick them up
at the main plant. He completes the paperwork reflecting
how much time he and his helper spends on each job, and
turns it in to Glenn Livengood. He does not regularly sign
employee timecards, but on several occasions he has initialed
employee timecards to show that the employees had arrived
at plant 2 on time.
CEO David Bazzano stated that Ruppersberger works the
day shift, for the most part, and spends the majority of his
time doing production work. Ruppersberger parks his private
vehicle at plant 1, in the parking area used by management
and clerical employees. He drives to plant 2 in a company
vehicle, usually hauling glass, and opens and closes the facil-
ity each day. Other employees working with Ruppersberger
at plant 2 do not have keys to the facility. Ruppersberger has
had one to five employees assigned to him, and he assigns
work to his helpers. Bazzano stated that he never discussed
Ruppersberger’s duties with him.
During the November 1988 to March 1989 period,
Ruppersberger did not have the authority to hire, fire, or dis-
cipline employees. He did not have the authority to grant
employees overtime, leaves of absence, or vacations. He does
not have the authority to recommend personnel actions, in-
cluding promotions, transfers, layoffs, recalls, or rewards.
However, he is clearly considered by management to be in
charge of the Kittanning production facility, and he has the
authority to send employees home for misconduct, and to re-
port misconduct to management for disciplinary action.
It is clear from the evidence that Ruppersberger was in
charge of plant 2 during the November 1988 to March 1989
period. He had the title of supervisor, and other Dlubak Cor-
poration employees assigned to plant 2, usually on a tem-
porary basis, regarded him as their supervisor. It was his re-
sponsibility to direct the work of employees assigned to him,
and to keep the required records of jobs and time spent by
him and his helpers in completing the jobs. He reported to
Ben Claypool and Dan Porter, who plainly held him respon-
sible for work performed at plant 2.
Regardless of whether or not Ruppersberger had sufficient
authority to make him a statutory supervisor, as defined in
Section 2(11) of the Act, he had the authority to direct em-
ployees in their work, send employees home for misconduct,
and to report misconduct to senior management for discipli-
nary action. As a salaried employee, there were substantial
differences in his wages, hours, and other conditions of em-
ployment compared to those of production and maintenance
workers.
Ruppersberger, as a salaried employee with some super-
visory responsibilities, clearly did not share a common inter-
est in wages, hours, and other conditions of employment
with production and maintenance employees. While he per-
formed production work, the conditions under which he
worked differ greatly from the wages, hours, and other work-
ing conditions of production and maintenance employees.
Because Ruppersberger’s interests and working conditions
differed substantially from those of the Respondent’s produc-
tion and maintenance employees, I find that he did not share
a sufficient community of interest with production and main-
tenance employees to be included with them in a collective-
bargaining unit. Therefore, he was not eligible to vote in the
election of January 12, 1989.
Barbara Fratta. Barbara Fratta has been employed by
Dlubak Corporation for over 10 years, for the last 5 to 6
years as the Company’s customer service representative for
the aluminum division. Her duties have not changed in the
past 2 years. Payroll change notices pertaining to her, issued
by the Company in September 1988 and April 1989, contain
the entry, ‘‘office’’ in the block titled ‘‘Department.’’ She
works daylight hours, 8:30 a.m. to 5:00 p.m. She is a sala-
ried employee, earning $520 per week, considerably more
than earned by hourly workers, including several of the crew
chiefs, who were paid $9.50 an hour. She shares an office
in the ‘‘front office’’ area with Nancy Noroski.87 She nor-
mally wears a dress and high-heel shoes to work. She esti-
mated that she spends 90 percent of her time in her office,
and 10 percent in the aluminum shop. She normally eats in
the lunchroom near the office area. Her supervisor is CEO
David Bazzano. She does not supervise any other employees.
As customer service representative, she had occasion to trav-
el to customers’ places of business with the Company’s vice
president for sales.
Barbara Fratta testified that she has worked in many as-
pects of Dlubak Corporation’s operations. She started out
cleaning the shop, and then learned stained glass operations
and aluminum frame fabrication. Following a layoff, she
worked in the Company’s office, where she took care of ac-
counts receivable, and performed shipping and purchasing
functions. She also prepared bids for mailing to customers,
completing drawings where necessary. She did aluminum and
glass estimating, and prepared production folders. She stated
that 5 to 6 years ago, the Company’s growth required one
person for each of those jobs, and she started her present job.
As customer service representative, she prepares produc-
tion or job folders for each aluminum division job. The fold-
ers, which are for use by aluminum division production per-
sonnel, contain purchase orders, drawings, patterns, estimate
information, instructions, quantities, and bending specifica-
tions. She keeps track of the customer’s materials, after they
arrive, so that the materials can be matched to the job. Once
she has prepared the production or job folders, and produc-
tion has started, she follows the progress of the job by keep-
ing in contact with the crew chief or the person in charge
of setting up the job. On occasion, she goes to the production
area, but more frequently production personnel come to her
office, or talk to her by telephone. She ascertains from pro-
duction and inspection personnel how long the job will take,
and determines a shipping date. She follows the progress of
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
88 Ralph DeRose, whose job title was operations coordinator, left
the Company’s employ on December 31, 1987. Benjamin Claypool
took over the aluminum department in April 1988. During the in-
terim, Barbara Fratta scheduled work and crews.
89 CEO Bazzano stated that it is company policy to review each
employee every 6 months for a payraise, until they reach a certain
level of pay and are reviewed annually. He stated that Barbara Fratta
filled out a form for each employee and brought it to his attention
when the employee was due for evaluation. He stated that she did
not exercise any personal discretion in filling out the form.
90 She was asked about the qualifications of Jim Mitchell to be a
foreman in the aluminum division, and whether the shop foreman,
Ron Vantine was qualified for his job. In both instances she gave
favorable opinions.
91 The crew chiefs at that time were Steve Meleason, Jeff Snyder,
and Jim Mitchell.
jobs to make sure they are completed within the allotted
time. She has authority to give orders concerning scheduling
of jobs, or to direct that unsatisfactory work be done over.
Production personnel notify her if there are problems with a
job, and, if necessary she contacts the customer in order to
resolve problems. She examines doubtful bends, and decides
if they will be acceptable to the customer. If she cannot
make the decision, she gets help from higher management.
She talks by telephone to customers, keeping them informed
about progress and completion dates.
Barbara Fratta denied that she supervises production per-
sonnel, or that she performs the duties of the receptionist or
the accounting clerk. During the period from July 1988 to
March 1989, she went to the production floor to inventory
materials on hand. She admitted that when going down to the
production floor to perform an inventory or check a bend,
she may have taken job folders with her. She acknowledged
that she sometimes performs shipping duties for Cathy
Claypool. She sometimes performs estimating duties for spe-
cial customers. Her correspondence is typed by Kathy
Kasparek. She admitted that in November 1988, in a letter
she prepared for the NLRB, she called herself the production
coordinator for the aluminum division, but, she stated that is
not her official job title. She called herself production coordi-
nator,88 she testified, because she is the only person who has
the responsibility of keeping track of purchase orders from
start to finish.
From July 1988 to March 1989, Barbara Fratta determined
the order of jobs by their shipping dates, sometimes giving
particular jobs priority. She sometimes assigned work to Jeff
Snyder, who has particular skill in making elliptical bends.
She kept a record of the number of bends required for each
job, using figures contained in production folders, and fur-
nished that information to Ben Claypool or David Bazzano.
While she did not directly supervise production personnel,
it is apparent that she closely followed the progress of alu-
minum bending jobs, and exercised considerable discretion in
moving the job along and determining whether the product
produced was suitable for shipment. She had discretion to in-
spect work, and send it back if she concluded it did not meet
the customer’s specifications. She did not, however, inspect
each piece in a job, but only those which production per-
sonnel brought to her attention because of a problem. CEO
Bazzano said that during the July 1988 to March 1989 pe-
riod, crew chiefs directed their questions about work to
Fratta and Ben Claypool. Benjamin Claypool, the Company’s
production manager, said that he told Crew Chief Steven
Meleason that in his absence, he must follow Fratta’s direc-
tions concerning rush jobs.
During that period, she had authority to approve time off
requests from aluminum division employees, if there was no
conflict. If there was a conflict because more than one em-
ployee wanted a particular time off, she referred the matter
to CEO Bazzano. She also checked the mathematics on time
sheets which another employee, Jim Mitchell, prepared from
employees’ timecards, and if she found the mathematics to
be correct, initialled the timesheets. She had the authority to
send them back to Mitchell for correction of errors. She de-
nies that she had authority to initial individual employee
timecards. She stated that she prepared overtime schedules
which were posted in the work areas. She denied, however,
she makes decisions concerning when employees are sched-
uled to work. Such decisions were made by Ben Claypool.
She did not decide which shift a particular employee would
work, nor did she make the decision when overtime was
needed. However, because of her knowledge of the workload
in the aluminum division at any given time, her rec-
ommendations concerning overtime scheduling seem to have
been routinely followed. While she may not have had the au-
thority to make decisions concerning scheduling of crews
and work, she made recommendations concerning such mat-
ters to CEO Bazzano, which he generally accepted.
She also submitted payroll changes for employees who
were due 6-month pay increases. She did not exercise any
personal discretion in determining when to submit requests.89
Decisions concerning pay were made by CEO Bazzano. On
several occasions she has been asked by CEO Bazzano for
her opinion concerning the qualifications of certain employ-
ees to be crew chiefs.90
During the same period, Fratta attended production meet-
ings between crew chiefs and management. Attending for
management were David Bazzano, Brian Henry, and Dave
Passarelli. She stated that she attended only meetings at
which the crew chiefs were present.91
On the evidence of record, I conclude that Barbara Fratta
is not a supervisor, within the meaning of Section 2(11) of
the Act, but neither does she share a sufficient community
of interest with the Company’s production and maintenance
employees to be included with them in a collective-bar-
gaining unit. While she exercises some of the functions of
a supervisor, she is not responsible for day-to-day super-
vision of aluminum division production and maintenance em-
ployees. She exercises considerable discretion in connection
with scheduling of production orders, including assignment
of priority, and she has similar broad discretion in the area
of quality control. However, she spends little of her time on
the production floor, 10 percent by her estimate, and she
does not direct the day-to-day work of production employees.
Her involvement in production problems arises only when
production personnel bring problems to her attention.
She has routinely recommended scheduling of overtime
when the workload demands, and on occasion she has made
recommendations concerning the status of certain employees;
however, she does not have authority to take action in either
area on her own. Moreover, performance of the latter func-
tion appears to be isolated, and not a routine part of her du-
ties. Further, while she been delegated authority to authorize
1171DLUBAK CORP.
92 Using her experience in etching and sandblasting glass, she oc-
casionally shows production employees how to etch glass and mask
glass for sandblasting and engraving.
time off for employees, her authority is limited to those in-
stances in which there is no conflict arising from other em-
ployees requesting the same time off.
Fratta lacks the authority to hire, transfer, suspend, lay off,
recall, promote, discharge, reward, or discipline aluminum
division employees. She has no authority to adjust their
grievances. Her authority to assign and direct employees is
limited, and, in the absence of any other indicia of super-
visory authority, is insufficient to constitute her a supervisor
within the meaning of Section 2(11) of the Act.
Remaining are the questions of whether Barbara Fratta is
an office clerical employee, a class of employees excluded
from the bargaining unit, or even if she is not, does she have
sufficient community of interest to be included the collec-
tive-bargaining unit composed of the the Company’s produc-
tion and maintenance employees? Analysis of her duties dis-
closes the existence of substantial differences in interests and
working conditions compared to production and maintenance
employees. She is a salaried employee, the production and
maintenance employees are hourly employees. Apart from
the difference in how salaried and hourly employees’ wages
are computed, salaried employees of the Company enjoy sig-
nificantly better benefits, and a steadier, fixed income, with
substantially less chance of being laid off. As a salaried em-
ployee, her hours of work are constant and do not change ac-
cording to a rotating shift schedule. She does not punch a
timeclock. She is supervised by the chief executive officer of
the Company, not by the supervisors of the hourly produc-
tion and maintenance workers. She spends the majority of
her time (90 percent) in an office in the office area of the
plant, where she has little contact with production employ-
ees, and little of her time (10 percent) in the production areas
of the plant where production and maintenance employees
work. She customarily does not eat her lunch in the same
lunchroom used by production employees. She dresses for
work in street clothing, not work clothes. She does not per-
form production work, and her duties are distinctly different
from those of production and maintenance employees. Unlike
production and maintenance employees, she has substantial
contact with the Company’s customers, and many of her du-
ties, such as scheduling production and shipment of orders,
preparing shipping documents, taking inventory of supplies,
ordering replacement materials and supplies, and putting to-
gether production folders are more analogous to clerical du-
ties than to production duties.
Because she has substantially different interests and work-
ing conditions, I find that she lacks sufficient community of
interest to be included in the bargaining unit composed of the
Company’s production and maintenance employees. In view
of this finding, it is immaterial whether her duties fall pre-
cisely in the category of an office clerical employee, or in-
volve other areas of responsibility which are not clerical in
nature. Her duties, interests, and working conditions differ
substantially from those of the Company’s production and
maintenance employees, and, for that reason, she is excluded
from the bargaining unit, and was not entitled to vote in the
January 1989 election.
Nancy Noroski. Nancy Noroski is the Respondent’s cus-
tomer service representative for the glass division. Her job
title is customer service, glass division. She has been em-
ployed by Respondent for 11 years. Like Barbara Fratta, with
whom she shares an office, and who is her counterpart for
the aluminum division, Nancy Noroski began her employ-
ment as a production worker, with experience in etching
glass and fabricating metal frames. Before taking on the po-
sition of customer service representative, which she has held
for 4 years, she was in the etching department, where her du-
ties included estimating and doing glass etching work.
All work in the glass division is custom work, no standard
items are produced and stocked. Nancy Noroski receives pur-
chase orders, and prepares production sheets which are used
in producing the orders. When customers supply patterns, she
goes over the patterns with Keith Shaffer, the Company’s
pattern maker. After conferring with him, she prepares pro-
duction sheets, which she faxes to the customer for his ap-
proval. After the customer approves, she prepares job folders
in which she places sizes, drawings and diagrams, and any
other information which is needed or useful to production
workers who bend the glass. She makes six copies of each
job folder, and delivers them to Dan Porter or Glenn
Livengood, who distribute the copies to the different glass
departments involved in production and shipment of the fin-
ished product. She does not determine the order in which
jobs are produced; however, when orders come in she deter-
mines whether the job can be produced and shipped in time
to meet the customer’s lead time. If it cannot be, she relays
that information to the customer. Jobs are usually scheduled
on a first-come first-served basis, but at times CEO Bazzano
makes exceptions to that policy, and directs her to move up
lead times for special jobs. She answers questions about the
job from the glass table, the glass benders, the laminating de-
partment, and the boxing department. She keeps informed
about the progress of each job, through contact with Dan
Porter, a glass division supervisor who monitors each job as
it is produced. During production of the job, she contacts the
customer if problems arise. Occasionally she goes to the pro-
duction floor to look at defects, then contacts the customer
to find out if he will accept the glass. When the job is com-
pleted, she coordinates shipment of the finished product. She
answers calls from customers requesting information on the
status of their order and shipping dates. She obtains the num-
ber of boxes or crates needed to ship the product, together
with weights and sizes, and passes that information to Kathy
Claypool, who makes the shipping arrangements.
Her supervisor is CEO David Bazzano. She gives job fold-
ers to Bazzano before they go to production. Bazzano deter-
mines if the glass needed for the job is in-house, and, if not,
orders it. She is salaried. Her work hours are from 8:30 a.m.
to 5 p.m. She does not do production work,92 but she does
have occasion to go to the production area to check on prob-
lems encountered in completing jobs. She estimates that she
spends 95 percent of her time in the office area of the plant,
and 75 percent in the office she shares with Barbara Fratta.
She dresses for work in street-type clothes. She attends meet-
ings conducted by Kathy Claypool, as the office coordinator.
She does not routinely attend production meetings with CEO
Bazzano. She occasionally meets with customers, either
when they come to the Respondent’s plant, or at their place
of business. She does not do typing or filing. Her office,
which she shares with Barbara Fratta, is on the second floor
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
93 There are lunchrooms in the glass and aluminum production
areas of the plant which production employees normally use. It does
not appear that the Respondent has rules concerning where employ-
ees may eat their lunch. Where employees eat their lunch appears
to be more a matter of convenience and habit than a matter of
whether the employees are production, maintenance, office, or man-
agement employees.
94 There were 73 employees in the bargaining unit on November
20, 1988. The size of the bargaining unit decreased to 72 on Decem-
ber 21, 1988, when Gloria J. Young’s employment ended, and to 71
on December 27, 1988, when Georgia A. Shernock’s employment
ended.
of the main office complex. She normally eats lunch in the
lunchroom in the office area.93
It is apparent that Nancy Noroski is not a supervisor, with-
in the meaning of Section 2(11) of the Act. However, for
much the same reasons that Barbara Fratta, whose duties are
in many respects analogous to those of Nancy Noroski, does
not share a sufficient community of interest with production
and maintenance employees to be included with them in the
bargaining unit, neither does Nancy Noroski. Nancy Noroski
is a salaried employee, and enjoys substantially better bene-
fits than hourly employees. She does not do production
work, nor is she supervised by production supervisors. She
does not work rotating shifts. She has infrequent contact with
production and maintenance employees. She prepares job
folders, but does not set job priorities or production sched-
ules. While she does not perform typical clerical duties, such
as typing and filing, neither do the duties that she performs
bear any resemblance to production duties. Accordingly, I
find that she should be excluded from the bargaining unit,
and was not eligible to vote in the January 1989 election.
Conclusion. Based on the evidence of record, I find that
there were 71 employees in the bargaining unit on December
27, 1988, and on January 12, 1989, who were eligible to vote
in the election held that day.94 The 71 employees who made
up the bargaining unit include the 66 employees named in
General Counsel’s Exhibit 55 whose membership is not dis-
puted, plus employees William Plunkard, Thomas
Ellenberger, Timothy A. Shirley, Gary S. Slee, and Joseph
Visnovsky.
The parties agree that between the election and March 14,
1989, the size of the bargaining unit increased by two new
employees: Cynthia Nayman Smith, hired on January 23,
1989, and, Douglas A. Hankey, hired on February 6, 1989.
Adding these employees to the bargaining unit increases its
size, as of February 6, 1989, to 73 employees. There was no
change in the composition and size of the unit between that
date and March 14, 1989, the postelection date by which the
General Counsel contends that the Union had increased by
six the number of employees who had designated the Union
as their collective-bargaining representative.
IV.
a. Challenged authorization cards. The Charging Party
Union first notified the Respondent that it claimed to rep-
resent a majority of the Company’s production and mainte-
nance employees by mailgram, dated October 12, 1988. By
letter of October 21, 1988, addressed to Frank Dlubak, the
Union asserted that it represented a majority of the produc-
tion and maintenance employees at the Company’s Freeport,
Pennsylvania plant (plant 1), and requested that the Company
recognize the Union, following a verification of signed au-
thorization cards by a third party. The Respondent’s attorney,
Alex E. Echard, Esq., by letter of October 27, 1988, in-
formed the Union that the Dlubak Corporation declined and
refused ‘‘to recognize the ABGW Union as a bargaining
agent for any of its employees.’’ By letter of February 22,
1989, the Union notified the Respondent that it represented
‘‘a majority of all full-time and regular part-time production
and maintenance employees employed by Dlubak Corpora-
tion at its Freeport, PA facilities.’’ The Union offered to
prove its majority status by submitting signed union author-
ization cards from a majority of the employees in the unit
to a neutral party for verification. By letter of March 1,
1989, the Respondent’s attorney, Alex E. Echard, informed
the Union that Dlubak Corporation disputed that the Union
represented a majority of all full-time and regular part-time
production and maintenance employees.
The General Counsel alleges that as of November 20,
1988, the Union had attained majority status, that is, it had
obtained signed union authorization cards from a majority of
Respondent’s employees who made up the appropriate unit.
If that position fails, the General Counsel contends that ma-
jority status was achieved by March 14, 1989. The Respond-
ent disputes that the Union attained majority status by No-
vember 20, 1988, or by January 12, 1988, the date of the
election. If the Union attained majority status at any time, it
was not until March 1989, and the Respondent argues that
authorization cards obtained by the Union after the January
12, 1989 election should not be counted as evidence of ma-
jority status in support of a Gissel bargaining order.
To prove the Union’s majority status, the General Counsel
offered in evidence 45 signed union authorization cards. Of
the 45 cards, 37 are dated on or before November 7, 1988.
The remaining eight were obtained after the election, be-
tween on or about February 20 and March 14, 1989. Fol-
lowing is a list of signed authorization cards, and the date
appearing on each card:
Robert L. Bowser September 30, 1988
Kevin M. Dosch September 30, 1988
Mark R. Gorog September 30, 1988
Mark A. Kijowski September 30, 1988
Nicholas J. Kuchta September 30, 1988
Brian D. Smith September 30, 1988
Gregg S. Crissman October 3, 1988
Stephen D. Meleason October 3, 1988
William Plunkard October 3, 1988
Jeffrey W. Copeland October 4, 1988
Randy Lee Johns October 4, 1988
Glenn S. Ross October 4, 1988
Randy L. Ross October 4, 1988
Jeffrey S. Snyder October 4, 1988
Frank D. Cushey October 5, 1988
Douglas J. Leipertz October 5, 1988
Bruce A. Offredi October 5, 1988
David C. Plunkard October 6, 1988
Robert K. Fox October 8, 1988
Rena L. Bellotti October 9, 1988
Dirk A. Fennell October 9, 1988
Bradley N. Kuhn October 9, 1988
Phyllis Lubiniecki October 9, 1988
Todd A. Placek October 9, 1988
1173DLUBAK CORP.
95 Gary C. Slee testified that he signed a union authorization card
at a union meeting held 2 months before the election, but ‘‘they
threw it out because I was part-time and they did not want to cause
me any trouble.’’ Slee said that he signed another authorization card
on March 12, 1989, at Bob Bowser’s house. John E. Shinn testified
that he received a signed union authorization card from Slee at a
union meeting on November 12, 1988. He told Slee that he was not
going to turn in the card, because Slee was ‘‘only a casual,’’ and
he felt that the company was ‘‘capable of letting him go.’’ He stated
that he gave the card to a secretary at the Union’s regional office,
and she misplaced it. The General Counsel argues that if Slee is
counted as a member of the bargaining unit, his lost card should also
be counted.
96 Timothy Ballas, Kathy Claypool, Barbara Fratta, Glenn
Livengood, Nancy Noroski, Wilfred Ruppersberger, Thomas
Ellenberger, Timothy Shirley, Gary Slee, and Joseph Visnovsky.
97 Three employees terminated their employment between Novem-
ber 20 and December 27, 1988: Nicholas Relich (November 20,
1988), Georgia Young (December 21, 1988), and Gloria Shernock
(December 27, 1988). That, Respondent argues, reduced the size of
the bargaining unit from 79 to 76 employees.
98 The Respondent continues to maintain that William Plunkard’s
card is not valid, because he was terminated for cause in October
1988, and that Gary Slee’s lost card should not be counted.
99 Cynthia Nayman, hired on January 23, 1989, and Douglas
Hankey, hired on February 6, 1989.
Jimmy D. Walker October 9, 1988
Arthur Brendlinger October 10, 1988
Francis K. Righi October 10, 1988
Donald Lee Emery October 10, 1988
John J. Milligan October 10, 1988
Kathy Ann Milligan October 10, 1988
Tracy D. Reuter October 12, 1988
Janet L. Toy October 12, 1988
David A. Crotallo October 15, 1988
Kirk A. Bauer November 6, 1988
James F. Cravener November 7, 1988
John A. Osche November 7, 1988
Thomas P. Shankle November 7, 1988
Kenneth W. Bowser February 20, 1989
Richard J. Charney February 20, 1989
Timothy A. Shirley March 2, 1989
James S. Hudek March 3, 1989
Gary C. Slee95 March 12, 1989
C. J. (Tina) Goodgasell March 13, 1989
Gary H. Heigley March 14, 1989
John J. Valasek, III March 14, 1989
Respondent challenges the validity of 5 of the 37 author-
ization cards obtained by the Union by November 7, 1989.
Challenged are the authorization cards of William Plunkard
(October 3, 1988), Francis K. Righi (October 10, 1988),
Donald L. Emery (October 10, 1988), Kathy Ann Milligan
(October 10, 1988), and Janet Toy (October 12, 1988). Re-
spondent also contends that the missing card of Gary C. Slee,
allegedly signed on November 12, 1988, is invalid, and
should not be counted in determining whether or not the
Union attained majority status. Respondent contends that as
of November 20, 1988, there were 79 employees in the bar-
gaining unit, including those challenged by the General
Counsel and the Union,96 but not including William
Plunkard, who is challenged by the Respondent. Therefore,
only 32 of the 37 authorization cards (or 38, if Slee’s lost
card is considered) claimed by the Union are valid, and that
number fell short of the 40 cards the Union needed to have
a majority. By January 12, 1989, the number of employees
in the bargaining unit, as calculated by Respondent, had fall-
en to 76 employees,97 but even if all 36 of the Union’s
signed cards are valid,98 the Union still lacked the 39 cards
needed for a majority.
Respondent further disputes that the Union attained major-
ity status by March 14, 1989, through the addition of eight
signed cards it obtained after the January 12, 1989 election.
Respondent asserts that the size of the bargaining unit in-
creased by the addition of 2 new employees, 1 hired on Jan-
uary 23, 1989, and and the other on February 6, 1989,99 rais-
ing the membership of the bargaining unit to 78 employees.
Respondent challenges the validity of 6 of the 45 cards
claimed by the Union by March 14, 1989: William Plunkard
(October 3, 1988), Francis K. Righi (October 10, 1988),
Donald L. Emery (October 10, 1988), Kathy Ann Milligan
(October 10, 1988), Janet Toy (October 12, 1988), and John
Valacek (March 14, 1989). Excluding these 6 cards, Re-
spondent concludes, the Union had only 39 signed authoriza-
tion cards by March 14, 1989, a number which falls 1 card
short of the 40 needed by the Union for a majority. In any
event, the Respondent’s argument continues, even if the
Union obtained a majority by March 14, 1989, that is irrele-
vant under the complaint, because for purposes of deter-
mining whether a Gissel bargaining order is appropriate
under the complaint, the crucial date when the Union must
have represented a majority of the appropriate bargaining
unit is by January 12, 1989, the date of the election.
I have considered Respondent’s challenges to the author-
ization cards of William Plunkard, Francis K. Righi, Donald
L. Emery, Kathy Ann Milligan, Janet Toy, John Valacek,
and Gary C. Slee (the Respondent challenges only the lost
card Gary Slee is alleged to have signed on or about Novem-
ber 12, 1988), and I find that none of the challenges are mer-
itorious.
William Plunkard. Respondent challenges Plunkard’s card
because he was lawfully discharged on October 6, 1988. For
reasons previously discussed at length, I have found that Re-
spondent’s action in discharging Plunkard on or about Octo-
ber 6, 1988, was unlawful and constituted an unfair labor
practice in violation of Section 8(a)(1) of the Act. In view
of that finding, his union authorization card signed on Octo-
ber 3, 1988, is valid, and will be counted in determining
whether the Union attained support of a majority of the bar-
gaining unit at any time relevant to the complaint.
Francis K. Righi, Donald L. Emery, and Kathleen Ann
Milligan. Respondent contends that these three employees re-
voked their signed union authorization cards prior to the date
upon which the Union sought majority status, and, even
though they were unsuccessful in their efforts to regain pos-
session of their cards, the Union may not count their cards
among the cards of employees it claims to represent. Re-
spondent argues that Righi, Emery, and Milligan revoked
their signed union authorization cards soon after they signed
them, and before they were subjected to alleged unfair labor
practice conduct by the Company.
Righi testified that he signed a union authorization card at
his home during the evening of October 10, 1988, and gave
the signed authorization card to Brion Smith and Nicholas
Kuchta, who were there to solicit his signature and had fur-
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
100 In NLRB v. Gissel Packing Co., 395 U.S. at 608, the Supreme
Court said:
[W]e also accept the observation that employees are more likely
than not, many months after a card drive and in response to
questions by company counsel, to give testimony damaging to
the union, particularly where company officials have previously
threatened reprisals for union activity in violation of Sec.
8(a)(1).
nished the card. Righi stated that later that evening he
changed his mind, and the next day asked Smith to return
the card which he had signed. He said that Smith responded
that would not be a problem, but he no longer had the card
in his possession, and would have to get it back. Smith did
not subsequently return the card to Righi, and Righi ac-
knowledged that he did not write to the Union asking for re-
turn of his card. Righi stated that he is a crew leader in the
boxing department, and that in October 1988, he rented the
house in which he lived from Frank Dlubak. He said that he
may have told another employee that if the Union came in,
the employees would lose all of their overtime. He denied
that anyone from the Company told him that.
Emery testified that Brion Smith and Nicholas Kuchta
came to his home during the evening of October 10, 1988,
and solicited his signature on a union authorization card.
Emery testified that he signed the union authorization card
given to him by one of them, and handed it back. Emery said
he later changed his mind about the card, and the next day,
when Mark Kijowski asked him to sign a union authorization
card, he told Kijowski that he had already signed one, and
wanted it back. Kijowski told him that was no problem, but
Emery never got his card back. He acknowledged that he
never requested return of his card in writing to the Union.
Kathleen Ann Milligan testified that she was visited at her
home by Kevin Dosch and Mark Kijowski during the
evening of October 10, 1988, and they asked her to sign a
union authorization card. She said that she signed a card
which they provided, and returned it to them. She said that
she acted vindictively in signing the card, and changed her
mind the next day. Several days later, she asked Dosch to
return her card. He said that he would try to get it back, but
she did not subsequently hear anything further from him
about her card. Two weeks after she signed the card, she re-
ceived a telephone call from Kijowski, during which he
asked her if she was still with them. She replied that she was
not, and after Kijowski asked why, she replied that Frank
Dlubak had told her that he would close the plant down if
the Union came in.
Brion Smith testified that he had discussions with Righi
and Emery about the need for a union before they signed the
union authorization cards. He said he told them that his rea-
son for wanting a union was job security, and that he used
himself as an example of the need for security. Smith had
been laid off by the Company on October 7, 1988. Smith de-
nied that Righi later asked him for return of his card, or that
Righi said that Emery wanted his card back.
Kevin Dosch denied that Kathleen Ann Milligan asked
him to return her card. Dosch said that his first conversation
with Kathleen Milligan about signing a union authorization
card took place on October 9, 1988. He told her that a union
was needed because of the layoffs which had occurred. He
gave her a card, but she did not sign until he came back the
next evening with Mark Kijowski.
Nicholas Kuchta denied that either Righi or Emery asked
for return of their signed union authorization cards. Kuchta
acknowledged, however, that he heard rumor that they want-
ed their cards back.
Mark Kijowski said that he was not aware that Kathleen
Milligan asked Dosch to return her card.
An employer may attack the validity of authorization cards
which a union relies upon to establish majority status by
showing that the cards were revoked prior to the union’s de-
mand for recognition. Reilly Tar & Chemical Corp. v. NLRB,
352 F.2d 913 (7th Cir. 1965); J. P. Stevens & Co., 244
NLRB 407 (1979); TMT Trailer Ferry, 152 NLRB 1495
(1965). The Board has not accepted revocations, however,
which are the product of the employer’s unfair labor prac-
tices. Quality Markets, 160 NLRB 44 (1966). See also
Struthers-Dunn, Inc., 228 NLRB 49 (1977), enforcement de-
nied 574 F.2d 796 (3d Cir. 1978), in which the Board held
that cards revoked prior to the commission of any unfair
labor practices did not count toward establishing a union ma-
jority necessary to support a bargaining order.
Two issues are presented here. First, did the three card
signers, or any one or more of them, revoke or attempt to
revoke the union authorization cards which they had signed;
and, second, if they did revoke or attempt to revoke their
signed union authorization cards, was the revocation the
product of unfair labor practices committed by the Respond-
ent.
Whatever Righi, Emery, and Kathleen Milligan may have
intended, it is clear that if they took any steps at all to re-
voke their union authorization cards, they were half-hearted
and ineffectual steps. Accepting their testimony at face value,
each of them did no more than make an oral request for the
return of their card. They did not follow up with other re-
quests, and they made no effort to contact the Union directly,
either orally or in writing, to ask that their cards be returned.
Under these circumstances, with knowledge that the employ-
ees who solicited the cards no longer had them, their failure
to take any further steps to demand return of or revoke their
cards was tantamount to acquiescence in use of their cards
by the Union.
The testimony of Righi, Emery, and Kathleen Milligan
cannot be reconciled with that of Dosch, Smith, Kijowski,
and Kuchta on the revocation issue. Considering Kuchta’s
testimony that he had heard a rumor that Emery and Righi
wanted their cards back, I conclude that however half-hearted
and ineffectual their attempts may have been, Righi, Emery,
and Kathleen Milligan may, indeed, have let it be known to
someone at some time that they wanted their cards back.
That leaves the question of what weight should be given
to the attempts they say that they made to regain possession
of their cards. The three card signers testified in this pro-
ceeding as witnesses for the Respondent, at a time when the
Union had failed to achieve a majority vote in the election
and the Respondent could reasonably be perceived as having
gained the upper hand. In the face of the retaliatory action
already taken by the Respondent, it is hardly surprising that
employees would seek to minimize their support for the
Union and give testimony damaging to the Union.100
As noted, the Board has held that revocations of union au-
thorization cards will not be accepted if they are product of
an employer’s unfair labor practices. Such is the case here.
I have already entered findings that the discharge of William
1175DLUBAK CORP.
101 395 U.S. at 606–607. Later on, the Supreme Court reiterated
that nothing it said indicates its approval of the Cumberland Shoe
rule when applied to ambiguous dual-purpose cards. 395 U.S. at 609.
P. Plunkard on October 6, 1988, and the layoff of seven
other employees on October 7, 1988, including the four em-
ployees who had solicited union authorization cards from
Righi, Emery, and Kathleen Milligan, were violations of the
Act. It was no mere coincidence that seven of the eight em-
ployees whose employment was summarily terminated had,
within the preceding week, surfaced as active union orga-
nizers. Rather, the Respondent clearly took reprisals against
those employees which it could identify as union supporters,
with the intent of stopping their union organizing activities,
and intimidating its employees into rejecting the Union’s or-
ganizing drive, by forcefully making the point that support
of the Union would cost them their jobs. In the case of
Righi, Emery, and Kathleen Milligan, it is evident that Re-
spondent succeeded.
Even assuming that Righi, Emery, and Kathleen Milligan
made some attempt to revoke their union authorization cards,
I find that those attempts, coming as they did hard on the
heels of their decisions to sign the cards in the first place,
were the product of Respondent’s unfair labor practices, and,
therefore, the revocations have no validity, and the Union is
entitled to have their cards counted in determining if it
gained majority status.
Janet Toy. Respondent challenges the validity of the union
authorization card signed by Janet Toy on October 12, 1988,
because she was told that the reason for signing was ‘‘just
to get the representative to come in and talk to us about the
union.’’ Further, she was told by Robert Bowser, the em-
ployee who solicited her signature, that the ‘‘card would be
kept ‘secret’ and would be ‘burnt’ after they got enough
cards ‘for the union representative to come in and talk to
us.’’’
Robert Bowser testified that he solicited Janet Toy’s signa-
ture in October 1988. He said that he placed a telephone call
to her at her home, during which he asked her if she would
like to sign a union authorization card. She was concerned
about confidentiality, and replied she would think about it.
He called her again, and she said she would sign. After that,
at his home, he gave her a card; she looked at it, signed it,
and gave it back. He said he told her the card would be
strictly confidential. He denied that he told her that the sole
purpose of the card was to get a union representative to talk
to the employees. He said he did not tell her that he would
destroy the card after the union representative came. Bowser
said that Janet Toy attended one union meeting.
Janet Toy said that Bowser had called her four or five
times asking her to sign a card. She said that she asked him
what she was signing. After he said the card was to get a
union representative to come and talk to the employees, she
agreed to sign, and arranged to stop at his home. She said
she trusted Bowser because she had known him for 30 years.
She said he told her to read the card, and she skimmed over
it, signed the card, and left it on a table. She said she did
not know that she was agreeing that the Union would be her
collective-bargaining agent. She said that Bowser told her
that no one except the National Labor Relations Board would
know she had signed the card, and that the card would be
destroyed.
The union authorization card which Janet Toy, and the
other Dlubak employees signed, is an unambiguous single-
purpose card which clearly designates the Union as the em-
ployee’s collective-bargaining representative. The card says
nothing about it being used for any other purpose. In NLRB
v. Gissel Packing Co., 395 U.S. at 584, the Supreme Court,
noting that the approach of the Board in dealing with allega-
tions of misrepresentation by the union and misunderstanding
by the employee of the purpose for which cards are solicited
has been set out in Cumberland Shoe Corp., 144 NLRB
1268 (1963), said that,
Under the Cumberland Shoe doctrine, if the card itself
is unambiguous (i.e., states on its face that the signer
authorizes the Union to represent the employee for col-
lective bargaining purposes and not to seek an election),
it will be counted unless it is proved that the employee
was told that the card was to be used solely for the pur-
pose of obtaining an election.
In approving the Board’s Cumberland rule, as it applies to
unambiguous single-purpose cards, the Supreme Court
said,101
employees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words cal-
culated to direct the signer to disregard and forget the
language above his signature. There is nothing incon-
sistent in handing an employee a card that says that the
signer authorizes the union to represent him and then
telling him that the card will probably be used first to
get an election. . . . We cannot agree with the employ-
ers here that employees as a rule are too unsophisti-
cated to be bound by what they sign unless expressly
told that their act of signing represents something else.
Evidence that card signers were told that the card would
be used to get a representative to come to talk to the employ-
ees about a union, among other things, has been found insuf-
ficient to invalidate unambiguous cards. Peerless, Inc. v.
NLRB, 484 F.2d 1108 (7th Cir. 1973); NLRB v. WKRG-TV,
Inc., 470 F.2d 1302 (5th Cir. 1973); Bookland, Inc., 221
NLRB 35 (1975). It is not enough that a card signer may
have been under the impression that the card would be used
for some other purpose than representation, where the em-
ployee read and understood the card before signing it and the
card unambiguously designated the union as the collective-
bargaining representative with the company. Horizon Air
Services, 272 NLRB 243 (1984), enfd. 761 F.2d 22 (1st Cir.
1985). Cards will not be invalidated unless the solicitor told
the employee that the sole purpose of the card was some-
thing other than stated on the face of the card.
In this case, I find from the evidence that card solicitor
Bowser did not intentionally set out to deceive Janet Toy as
to the card’s purpose, even if she may have been misled as
to its purpose. According to Janet Toy’s own testimony,
Bowser told her to read the card before she signed it. Con-
sidering the plain and unambiguous language of the card,
that advice is hardly consistent with an intent upon Bowser’s
part to deceive her. That Janet Toy may have disregarded his
sound advice and signed something she did not bother to
read is not only a lame excuse, it is an unconvincing one
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
102 Further weakening Janet Toy’s testimony is the observation by
the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. at 608,
that employees are more likely than not to give damaging testimony
against a union where many months have passed and the company
engaged in reprisals against employees for their union activities.
103 Hedstrom Co., 223 NLRB 1409 (1976), enfd. in pertinent part
558 F.2d 1137 (3d Cir. 1977).
104 Respondent does not dispute that Slee signed another union au-
thorization card on March 12, 1989, but it does dispute that cards
obtained by the Union after the election can be used to determine
if the Union had majority status in the bargaining group.
which hardly rises to the level of misrepresentation needed
to invalid an unambiguous card which clearly designates the
union as collective-bargaining representative.102 Neither does
it invalidate her card that she may have been told her card
would be kept confidential. That she feared disclosure of her
support for the union merely reflects the success of the Re-
spondent in intimidating its employees by its reprisals against
other employees engaging in union activities.
I find that Janet Toy’s union authorization card is valid.
John Valacek. Citing NLRB v. Savair Mfg. Co., 414 U.S.
270 (1973), Respondent challenges John Valacek’s union au-
thorization card on the grounds that he was offered an eco-
nomic inducement to sign the card, in the form of a rep-
resentation that his union dues would be paid by signing the
card. The General Counsel counters that the testimony of Art
Brendlinger, the card solicitor, in which he denied saying
anything about union dues or initiation fees, should be cred-
ited over Valacek’s testimony as a witness called by Re-
spondent, particularly since Valacek’s testimony contradicted
his affidavit given 2 weeks after he signed the card.
John Valacek identified the card which he signed on
March 14, 1989. He said that he signed the card on the same
day it was given to him in the company parking lot by Art
Brendlinger. In contradictory testimony, Valacek, who was
called as a witness by Respondent, variously said that
Brendlinger told him his dues would be paid if he signed the
card, then that it happened so long ago he did not remember
exactly what was said. Valacek acknowledged that in an affi-
davit he gave to a Board agent, he said Brendlinger did not
say anything about union dues or initiation fees.
I do not credit Valacek’s contradictory testimony, particu-
larly in light of his affidavit. I find no credible evidence that
he was induced to sign a union authorization card by a rep-
resentation that his dues would be paid by signing the card.
There is, in fact, no evidence that payment of dues was an
issue with any of the employees. I find no evidence of mis-
representation or financial inducement by the Union through
its solicitor which would invalidate Valacek’s card.
I find that Valacek’s card is valid.
Gary C. Slee. The General Counsel argues that for pur-
poses of determining whether or not the Union had majority
status in the bargaining unit by November 20, 1988, Gary C.
Slee should be counted among those who had signed a union
authorization card, even though the Union has since lost the
card.103 The Respondent challenges use of evidence of the
missing card as evidence of employee support for the Union
in determining if the Union attained majority status.104
Gary Slee testified that he signed a union authorization
card at a union meeting some 2 months prior to the election,
but, he said, the Union threw it out because he was a part-
time employee and they did not want to cause him any trou-
ble. Union Representative John Shinn testified that Gary Slee
handed him a signed union authorization card at a union
meeting on November 12, 1988. Shinn testified that he told
Slee that he would take the card, but that he would not turn
it in because a hearing to set up the election had already
been scheduled. Shinn said that he felt the Company was ca-
pable of letting Slee go. He said he gave the card to a tem-
porary secretary working for the Union at that time and she
was supposed to file it. He said he is unable to find the card
in the Union’s file, and concludes that it was misplaced.
Respondent argues that the record does not establish that
Slee signed a valid authorization card in November 1988,
and, even assuming, arguendo, that he did, the Union’s act
of rejecting it precludes it from claiming it accepted the card
and represented Slee. Respondent states that it was incum-
bent upon the Union to notify Slee that his authorization was
accepted. The Union’s failure to do so precluded the possi-
bility that Slee might have decided to revoke his card. In the
absence of the actual card, it is mere speculation that Slee
signed the same card as the others.
The Board has not limited the method of determining if
a union obtained majority status. In Printer Bros., 227 NLRB
921, 922 (1977), the Board said that a combination of signed
cards by nonvoters added to secret ballots cast for the union
constituted ‘‘valid expressions of employee sentiment.’’ In
this case, where the issue is whether the Union attained ma-
jority status for purposes of issuance of a bargaining order,
that determination may be made upon proof of employees’
support for the Union in the form of signed authorization
cards, and other reliable evidence that employees had se-
lected the Union as their collective-bargaining agent.
I find the testimony of Union Representative Shinn and
employee Slee to be credible. The evidence does not disclose
that the Union used any type of authorization card in its or-
ganizational campaign other than the type signed by other
employees and admitted into evidence. There is no reason to
believe that the card purportedly signed Slee differed in any
way. While Union Representative Shinn may have indicated
to Slee that he did not intend to use Slee’s card at that time,
he accepted the card from Slee, without in any way rejecting
Slee’s support for the Union. It is clear from the attendant
circumstances that Slee intended to designate the Union as
his collective-bargaining agent, and the Union was aware of
that fact, and did not reject Slee’s designation.
The evidence that Slee signed a union authorization card
on November 12, 1988, is sufficiently strong to support a
finding that he executed a valid single-purpose authorization
card appointing the Union to be his collective-bargaining
agent. He should be included in any computation of whether
or not the Union had attained a majority after November 12,
1988.
b. Union majority. The appropriate bargaining unit was
composed of 71 employees as of December 27, 1988, and on
January 12, 1989, the date of the election. By February 6,
1989, the size of the unit had increased to 73 by the addition
of 2 newly hired employees. That figure remained unchanged
through March 14, 1989, the alternate date upon which the
General Counsel contends that a union majority was estab-
lished.
I find that the Union attained majority status on November
20, 1988, and retained majority status on January 12, 1989,
the day of the election. The increase in the size of the unit
1177DLUBAK CORP.
105 In Eddyleon Chocolate Co., supra, the Board said:
In the event that a final revised tally of ballots shows that the
Union won the election, we conclude, in agreement with the
judge, that the Union is entitled to a certification of representa-
tive, but in addition to our bargaining order.
from 71 to 73 during January and February 1989, resulting
from the addition of 2 newly hired employees, did not
change the Union’s majority status, since at 73 members, the
Union, with 37 signed authorization cards, still enjoyed a 37
to 36 employee advantage. Thus, the Union’s actions in ob-
taining eight more signed authorization cards by March 14,
1989, the alternate date upon the Union claims majority sta-
tus merely increased the size of its majority.
The General Counsel has produced 37 valid employee
union authorization cards signed on or before November 7,
1988. The bargaining unit at that time was composed of 74
employees, including 3 employees who subsequently termi-
nated their employment prior to the January 12, 1989 elec-
tion. Thus, counting only the 37 signed cards which the Gen-
eral Counsel actually produced and introduced in evidence,
on November 7, 1988, the employees in the bargaining unit
were evenly split between support for the Union and uncom-
mitted status. If Gary Slee’s missing card, which was alleg-
edly signed on November 12, 1988, is counted, as I have
found that it properly should be, the Union had the support
of 38 of the employees in the 74-person unit, and had at-
tained majority status.
On November 20, 1988, the date on which Nicholas
Relich’s employment ended, the size of the bargaining unit
decreased to 73 employees. With 37 signed authorization
cards, not counting Gary Slee’s missing card, to 36 employ-
ees who did not sign cards, the Union had majority status.
If Slee’s missing card is counted, the margin of the Union’s
majority increases to two employees. The size of the unit
dropped from 73 to 71 by late December, with 2 more em-
ployees terminating their employment, and did not change
again before election. Therefore, the Union had majority sta-
tus on the day of the election.
Between February 20 and March 14, 1989, the Union col-
lected another 8 signed union authorization cards, bringing
the total number of signed authorization cards collected by
the Union to 45. Included in that number is an authorization
card signed by Gary Slee on March 12, 1989, but not his
missing card which he is alleged to have signed and turned
over to the Union on November 12, 1988. All eight of these
cards are valid. The 45 authorization cards obtained by the
Union on or before March 14, 1989, accounts for more than
half of the bargaining unit, which had 73 members at that
time. Therefore, I find that the Union had majority status on
March 14, 1989.
V.
Challenged ballots. A total of 74 votes were cast in the
election held on January 12, 1989. Of that number, 33 votes
were cast for the Union, and 33 votes were cast against the
Union. The remaining eight ballots were challenged and re-
main unopened. The Union challenged the ballots of Timothy
Ballas, Wilfred Ruppersberger, Kathy Claypool, Nancy
Noroski, and Barbara Fratta. Respondent challenged the bal-
lots of Mark Livengood, Richard Anthony, and William
Plunkard. At the hearing, the parties stipulated that the em-
ployment of Mark Livengood and Richard Anthony was ter-
minated before the election, and, that the challenges to their
ballots should be sustained and their ballots should not be
opened. Remaining are six challenged ballots. The challenges
are sufficient in number to affect the results of the election.
The Respondent’s challenge to the ballot of William
Plunkard is overruled. The Respondent committed an unfair
labor practice in violation of the Act by terminating
Plunkard’s employment on October 6, 1988, because he en-
gaged in union activity. He is entitled to reinstatement to his
former position and backpay. Therefore, I find that he was
a member in good standing of the bargaining unit at the time
of the election, and was entitled to vote. His ballot shall be
opened and counted.
The challenges of the Union and the General Counsel to
the ballots of Timothy Ballas, Wilfred Ruppersberger, Kathy
Claypool, Nancy Noroski, and Barbara Fratta are sustained.
For reasons previously stated, these five employees of Re-
spondent were not members of the appropriate bargaining
unit, and, therefore, were ineligible to vote in the election of
January 12, 1989. Therefore, their ballots shall not be opened
or counted.
In accordance with the parties’ stipulation, the challenges
to the ballots of Mark Livengood and Richard Anthony are
sustained. Their ballots shall not be opened or counted.
VI.
The Respondent virtually conceded in its brief that in light
of the numerous incidents of 8(a)(1) violations alleged, and
particularly the unrebutted testimony concerning statements
made by Frank Dlubak during the critical period before the
election, the election should be set aside. Respondent stated
that it would make no further argument against setting the
election aside. The issue which Respondent vigorously con-
tests is whether a bargaining order is appropriate.
Because of the numerous violations of Section 8(a)(1), (3),
and (5) of the Act which I have found that Respondent’s top
management committed over a period of roughly 3-1/2
months before the election, I entirely agree with Respond-
ent’s observation, that ‘‘it is extremely unlikely that the elec-
tion will not be set aside.’’ In light of the numerous unfair
labor practices, including a variety of ‘‘hallmark violations,’’
committed by Respondent’s top management during the crit-
ical period of the union organizational campaign prior to the
election, and afterwards, the results of the election cannot
stand. However, I further find that setting aside the election
and relying upon the Board’s traditional remedies is inad-
equate in this case, because it is impossible to hold a fair
rerun election in light of Respondent’s ‘‘outrageous’’ and
‘‘pervasive’’ violations of the Act. Issuance of a bargaining
is fully appropriate in the circumstances of this case.
If the revised tally of ballots, after opening and counting
the ballot of William Plunkard, shows that the Union won
the election, the Union is entitled to a certification of rep-
resentative, and a bargaining order. Eddyleon Chocolate Co.,
supra, 301 NLRB at 892.105 If, however, the revised tally of
ballots shows that the Union did not receive a majority of
the valid ballots cast, I recommend that a bargaining order
be issued, and that the election be set aside and the petition
dismissed. Eddyleon Chocolate Co, supra.
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
106 In NTA Graphics, 303 NLRB 801 (1991), the Board said that
in cases in which the union lost the election, it would issue a bar-
gaining order under appropriate circumstances, only if the election
is set aside on the basis of meritorious objections. In the instant case,
the Union filed objections to the election, which I have found to be
meritorious.
107 The Board also has refused to issue a bargaining order unless
the election is set aside on the basis of meritorious objections. NTA
Graphics, supra. In this case, the Union filed timely objections to
the election, some of which I have found to be meritorious.
108 There is no evidence in this record indicating that Board Agent
Ronald Kisak breached any duty of neutrality in connection with the
election in this case, as condemned in Hudson Aviation Services, 288
NLRB 270 (1988), and other cases cited by Respondent. The alleged
conduct of Board Agent Kisak, referred to in Respondent’s brief as
evidence that he allied himself with the Union, in fact took place
after the election, not before the election or while it was taking
place. Employee Mark Kijowski, whose testimony I have found oth-
erwise credible, testified that sometime in February 1989, but in any
event after the election, Board Agent Kisak said that he was going
after a bargaining order. He told Kijowski that the numbers were
close, and, in response to Kijowski’s question of whether it was pos-
sible or would be helpful to get more cards, replied in the affirma-
tive. Kijowski said that after that conversation he solicited six to
eight more cards, and that while he was doing that, Kisak asked him
from time to time if he had any more cards. Field Examiner Kisak’s
stipulated expected testimony is that in or about February 1989, he
had a conversation with Mark Kijowski, in which he advised
Kijowski that based upon payroll records he had obtained from
Dlubak Corporation, pursuant to the investigation of pending
charges, it appeared that the issue of the Union’s majority was a
close question. Even assuming that the conversations involving
Board Agent Kisak, as related by Kijowski and set out in the stipula-
tion of Kisak’s expected testimony, occurred as described, they took
place at a time after the election had already taken place, and while
Kisak was apparently involved in investigating the objections to the
election and pending charges. This case, therefore, is distinguishable
on its facts from Hudson Aviation Services, supra, in which an elec-
tion was set aside because a Board agent’s conduct while an election
was in progress ‘‘undermined the indispensable perception of Board
neutrality in the election.’’ 288 NLRB at 870. Whatever Board
Agent Kisak may have said or done, it could have had no impact
on an election which had taken place a month before. Further, it
does not appear that Kijowski referred to Kisak’s alleged remarks in
soliciting signed authorization cards from fellow employees. Thus,
there is no evidence that the card signers were influenced in signing
the authorization cards by anything reportedly said by Board Agent
Kisak. Even assuming that Board Agent Kisak’s statements to em-
ployee Kijowski were in error, it was a harmless error.
The Board will issue a bargaining order, even if the union
lost the election,106 in cases in which the employer com-
mitted ‘‘outrageous’’ and ‘‘pervasive’’ unfair labor practices,
which make the holding of a fair election impossible, or, in
cases which are ‘‘marked by less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election process.’’ NLRB v. Gissel
Packing Co., supra, 295 U.S. at 613–614. In Kona 60 Minute
Photo, 277 NLRB 867, 870 (1985), the Board set out the cri-
teria for issuance of a bargaining order:
In determining whether a bargaining order is warranted
to remedy the Respondent’s misconduct in this case, we
apply the test set out in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). There the Court identified two
categories of cases in which a bargaining order would
be appropriate. The first involves ‘‘exceptional cases’’
marked by unfair labor practices which are so ‘‘out-
rageous’’ and ‘‘pervasive’’ that a fair election is ren-
dered impossible. The second category involves ‘‘less
extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine
majority strength and impede the election process.’’
The Supreme Court stated that in the latter situation a
bargaining order should issue where the Board finds
that ‘‘the possibility of erasing the effects of past prac-
tices and ensuring a fair election . . . by the use of tra-
ditional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would,
on balance be better protected by a bargaining order.’’
Although the Supreme Court, in NLRB v. Gissel Packing
Co., supra, 395 U.S. at 613–614, indicated that an inquiry
into majority status might possibly be unnecessary in ‘‘ex-
ceptional cases’’ involving ‘‘outrageous’’ and ‘‘pervasive’’
unfair labor practices, the Board, in Gourmet Foods, 270
NLRB 578, 587 (1984), stated that it did ‘‘not believe we
would ever be justified in granting a nonmajority bargaining
order.’’
In this case, the Union attained majority status on Novem-
ber 20, 1988,107 and retained its majority status on the day
of the election, January 12, 1989, and afterwards. After the
election, the Union’s majority was reduced, but not lost en-
tirely, by the addition to the bargaining unit of two new em-
ployees hired in January and February 1989. By March 14,
1989, the Union had obtained eight more signed authoriza-
tion cards from bargaining unit members, and increased its
majority in the process. Respondent objects that postelection
authorization cards cannot be used to establish the Union’s
majority status for purposes of a bargaining order, particu-
larly, where, as here, the Respondent contends that a Board
agent counseled union supporters that obtaining more cards
might help their case.108
Although the Board has said that it will not issue bar-
gaining orders in nonmajority cases, Gourmet Foods, supra,
it has not specified any particular cutoff time by which a
union must attain majority status for purposes of a bar-
gaining order. What is required is ‘‘reliable poof of some
sort that a majority of employees in a union, at some rel-
evant time in some recognized form, asserted their choice
and selected and designated a union as their representative.’’
Gourmet Foods, supra, 270 NLRB at 586.
In this case, the election resulted in a tie vote, with the
outcome dependent upon rulings on challenged ballots and
objections to the election. As noted above, even the Re-
spondent concedes that the election likely will be set aside,
and thus, in effect, concedes that the election did not resolve
the issue of whether or not the Union shall be the bargaining
agent for the employees in the appropriate unit. In these cir-
cumstances, the Union’s organizational drive did not end
with the election, it continues until this case is resolved. In
that context, the relevant period of time for the purpose of
establishing majority status logically continues past the elec-
tion to the time when the Board decides whether or not to
issue a bargaining order. In the interim, there is no compel-
ling reason why the Union should not be at liberty to try to
increase its representation of bargaining unit employees.
1179DLUBAK CORP.
109 285 NLRB at 143.
110 285 NLRB at 142.
111 277 NLRB at 870–871.
Postelection union authorization cards are a reliable means of
determining whether or not the Union has attained majority
status for purposes of issuance of a bargaining order. Ac-
cordingly, I find that the eight postelection authorization
cards obtained by the union may be counted in determining
whether or not the Union attained majority status for pur-
poses of a bargaining order. But, while I find that the post-
election authorization cards may be counted, there is no ne-
cessity for doing so in this case, because, as stated above,
the Union attained majority status by November 20, 1988,
and retained it through March 14, 1989, without counting the
postelection authorization cards, and regardless of whether or
not Gary Slee’s missing authorization card signed in Novem-
ber 1988 is counted.
‘‘In determining whether a bargaining order is appropriate,
the Board examines the seriousness of the violations com-
mitted and the present effects of the coercive practices.’’
Churchill’s Supermarkets, supra, 285 NLRB at 142. In that
case, the Board agreed that a bargaining order was appro-
priate, even though 7 years had passed since the employer’s
unfair labor practices, because the employer’s conduct was
‘‘extensive and pervasive,’’ and involved ‘‘hallmark’’ viola-
tions, including threatening plant closure and discharging an
employee because of his union activity, as well as other vio-
lations, all of which occurred within a 5-week period and in-
volved top management. The Board said:109
The serious nature of the Respondent’s conduct in
threatening plant closure, soliciting grievances, and dis-
charging a union supporter, however, convinces us that
the lasting effect of such conduct cannot be remedied
either by the passage of time or the Board’s traditional
remedies.
In explaining why the Board’s traditional remedies would not
be adequate, the Board said:110
These actions involve the type of pervasive coercion
that has lingering effects not readily dispelled. Because
of the swiftness and severity of the Respondent’s reac-
tion against the Union’s organizing drive, it is highly
unlikely that a fair election could be conducted with the
use of only traditional remedies. We note that the Sixth
Circuit has recognized that a cease-and-desist order is
not always sufficient to remedy an employer’s unfair
labor practices. Exchange Bank v. NLRB, 732 F.2d 60
(6th Cir. 1984).
In Kona 60 Minute Photo, supra, the employer’s coman-
ager and a general partner unlawfully interrogated employ-
ees, threatened to discharge employees because of their union
activity, and threatened that selection of a union would be
an exercise in futility because the employer would refuse any
union bargaining request. The Board, in approving issuance
of a bargaining order, found that the unfair labor practices
of the employer fell at least into the second category of cases
in which a bargaining order would be appropriate. Of the
persistent effects of such actions by the employer and the
need for a bargaining order, the Board said:111
It is clear that the Respondent’s unlawful conduct
struck at the very core of the employees’ organizational
efforts. Its conduct involved such violations as repeated
threats of discharge for union activity. Threats of this
nature have a profound impact on employees. These
threats were also widely disseminated. The seriousness
of the Respondent’s conduct is further underscored by
the small size of the unit and the high level of manage-
ment officials involved. Taken as a whole, the Re-
spondent’s acts involve the type of severe and perva-
sive coercion which has lingering effects not readily
dispelled.
In light of the violations found herein, we conclude
that the possibility of erasing the effects of the Re-
spondent’s unfair labor practices and of conducting a
fair election by the use of traditional remedies is slight.
Requiring the Respondent simply to refrain from such
conduct will not eradicate the lingering effects of the
violations. Correspondingly, an election would not reli-
ably reflect genuine, uncoerced employee sentiment.
Thus, we conclude that the employees’ representation
desires expressed through authorization cards would, on
balance, be protected better by our issuance of a bar-
gaining order than by traditional remedies. Furthermore,
although there has been some turnover in the unit and
a significant passage of time since the violations oc-
curred, in light of circumstances of the violations and
their impact on the entire unit, to withhold a bargaining
order here would, in effect, reward the Respondent for
his own wrongdoing.
A similar conclusion was reached by the Board in Impact
Industries, supra, 285 NLRB at 6, in which it said that:
When the organizing campaign surfaced, the Respond-
ent immediately embarked on an antiunion campaign
designed to discourage its employees from supporting
the Union and engaged in numerous violations of the
Act in its effort. These include interrogations; threats of
plant closure, discharge . . . [and] the impression of
surveillance . . . .
In light of those violations (and others), the Board concluded
that:
[T]he possibility of erasing the effects of the Respond-
ent’s unfair labor practices and conducting a fair elec-
tion by the use of traditional remedies is slight. Requir-
ing the Respondent simply to refrain from such conduct
will not eradicate the lingering effects of the violations.
Correspondingly, an election would not reliably reflect
genuine, uncoerced employee sentiment. Given the
swiftness with which the Respondent reacted to the or-
ganizational effort and the postelection violations, the
likelihood of the Respondent again engaging in illegal
conduct is clearly present. We conclude that the em-
ployees’ representation desires expressed here through
authorization cards would, on balance, be better pro-
tected by our issuance of a bargaining order than by
traditional remedies. Although there has been some
turnover in the unit, and a significant passage of time
since the violations occurred, in light of the cir-
cumstances of this case, particularly the seriousness of
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
112 301 NLRB at 891.
113 301 NLRB at 891. See also Somerset Welding & Steel, 304
NLRB 32, 34 (1991), in which the Board said that threats of plant
closure are not only ‘‘‘hallmark’ violations but are ‘among the most
flagrant’ of unfair labor practices.’’ The Board said that violations
which ‘‘threaten the very livelihood of employees, are likely to have
a lasting impact which is not easily erased by the mere passage of
time or the Board’s usual remedies.’’
114 Supra at 891.
115 Supra at 892.
the violations and their impact on the entire unit, to
withhold a bargaining order here would reward the Re-
spondent for its own wrongdoing.
In its decision in Eddyleon Chocolate Co., supra, a recent
case which bears many similarities to the instant case, the
Board granted a bargaining order where ‘‘the record revealed
a veritable catalog of unfair labor practices,’’112 including
plant closure, threats to layoff or discharge union supporters,
coercive interrogation of employees, creating the impression
of surveillance of union activity, granting promised benefits,
and ordering a mass discharge in retaliation for union activi-
ties, among others. Of these unfair labor practices, the Board
said they included ‘‘numerous examples of what we term
‘hallmark violations,’ including some of the most per-
nicious—plant closure and layoff threats and discriminatory
discharge and layoffs.’’113 The Board described such viola-
tions in the following terms:114
These are the most flagrant forms of interference with
Section 7 rights and are more likely to destroy election
conditions for a longer period of time than are other un-
fair labor practices because they tend to reinforce em-
ployees’ fear that they will lose employment if union
activity persists. All the violations were committed by
individuals at the top of the management hierarchy—
the majority by its president.
Noting that there was also evidence of postelection violations
of the Act, the Board described the ‘‘likelihood of the Re-
spondent’s misconduct recurring in a rerun election’’ as high,
and the ‘‘possibility of erasing the lingering effects of the
Respondent’s unfair labor practices and of ensuring a fair
election by traditional remedies’’ as slight.115
The instant case involves many of the same ‘‘catalog of
unfair labor practices,’’ including some of the ‘‘most per-
nicious’’ ‘‘hallmark violations,’’ for example, ‘‘plant closure
and layoff threats and discriminatory discharge and layoffs,’’
as the Board found warranted a bargaining order in Eddyleon
Chocolate Co., supra.
The General Counsel has established by a preponderance
of the evidence, that from the first week of October 1988,
to the election held on January 12, 1989, the Respondent
committed multiple incidents of a wide variety of unfair
labor practices, including disparaging employees because of
support for the Union, threatening plant closure if the em-
ployees selected the Union as their bargaining representative,
threatening employees with discharge or layoff because of
their union activities, coercively interrogating employees
about their union activities and the union activities of other
employees, threatening that bargaining would start at zero if
the employees selected the Union as their bargaining rep-
resentative, threatening unspecified reprisals against employ-
ees because of their union activities, laying off employees
because of their union activities, refusing to recall employees
on layoff because of their union activities, creating the im-
pression of surveillance of the union activities of employees,
restricting the movement of employees within the plant be-
cause of their union activities, paying bonuses of $500 and
$50 to employees in order to discourage support for the
Union, and threatening the inevitability of a strike if the em-
ployees selected the Union as their bargaining representative.
The Respondent also committed unfair labor practices by dis-
charging an employee because of his union activities, trans-
ferring an employee because of her union activities, issuing
a written warning to an employee because of his union ac-
tivities, and refusing to bargain with the union as the collec-
tive-bargaining representative of a majority of the employees
in the appropriate bargaining unit. It is hardly an overstate-
ment to characterize Respondent’s misconduct in this case as
‘‘a veritable catalog of unfair labor practices.’’
The unfair labor practices involved Respondent’s top man-
agement, originating with its president and owner, down
through the chief executive officer, the plant manager, and
a supervisor in the glass division. The Respondent’s reaction
to learning that its employees had embarked on a union orga-
nizing effort was to swiftly implement a heavy-handed multi-
faceted antiunion campaign. The tone of the Company’s
campaign against the Union was set by its owner and presi-
dent, whose antiunion statements were widely disseminated
throughout the bargaining unit. He threatened that if the em-
ployees selected a union to represent them he would close
the plant and move his business elsewhere. He disparaged
union supporters, threatened union supporters’ jobs, coer-
cively interrogated employees about their union activities and
the union activities of other employees, and created the im-
pression that he had their union activities under surveillance.
When the president and owner of a small, privately held
corporation goes out of his way to make his opposition to
a union known to his employees, and threatens their jobs in
various ways if they select a union as their bargaining rep-
resentative, it is not surprising that lower levels of manage-
ment, who are also dependent upon the Company for their
employment, would take such threats seriously. In fact, the
plant manager and the glass division supervisor, perceiving
a threat to their employment, picked up on the themes an-
nounced by the Company’s president and owner, and ampli-
fied it by threats and predictions of dire consequences of
their own. The Respondent’s activities, however, did not stop
with threats and predictions. In a transparent attempt to in-
timidate its employees into rejecting a union, Respondent, in
actions apparently approved by the highest levels of manage-
ment, fired one employee and laid off a number of others in
retaliation for their union activities. And, in the course of its
efforts to discourage employees from selection a union as
their bargaining representative, Respondent committed nu-
merous other unfair labor practices.
As in Eddyleon Chocolate Co., supra, Somerset Welding &
Steel, supra, and Impact Industries, supra, the Respondent in
the instant case committed ‘‘hallmark violations,’’ including
threats of plant closure, layoff threats, and discharges, which
threatened the employees’ livelihood, and are likely to have
a lasting impact which cannot be easily erased by time or the
Board’s usual remedies. No less than in those cases, a bar-
gaining order is necessary in the instant case ‘‘to effectuate
1181DLUBAK CORP.
116 Somerset Welding & Steel, supra.
117 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the ef-
fective date of the 1986 amendment to 26 U.S.C. § 6621), shall be
computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
the employees’ sentiment, as expressed in the Union’s valid
card majority, in favor of representation.’’116
The Respondent’s hostility towards the Union continues
unabated, and its postelection conduct made it quite apparent
to its employees that it believes that it has gained the upper
hand. The Respondent, here, has practically invited a new
election. Clearly, a new election is one which the Respondent
expects to win. There is no indication that Respondent has
communicated any withdrawal of its ‘‘hallmark violations’’
to its employees, much less that it has given any indication
to its employees that it is willing to abide by the results of
a free and fair election. Nothing has occurred in this case to
attenuate the chilling impact of threats by its top manage-
ment to close the plant if the employees select a union as
their bargaining representative and its intent to retaliate
against employees who engage in union organizing activities
by discharge and layoff, particularly where, as here, the dis-
charged employee has not been rehired and two of the prin-
cipal union supporters have not been recalled from their re-
taliatory layoff.
This case clearly falls into the first category of cases war-
ranting issuance of a bargaining order, identified by the Su-
preme Court in NLRB v. Gissel Packing Co., supra, as those
exceptional cases marked by unfair labor practices which are
so outrageous and pervasive that a fair election is rendered
impossible.
CONCLUSIONS OF LAW
1. Respondent Dlubak Corporation is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Aluminum, Brick and Glass Workers Inter-
national Union, AFL–CIO–CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By disparaging employees who joined supported and/or
assisted the Union; threatening employees with plant closure
if they chose the Union as their collective-bargaining rep-
resentative; coercively interrogating employees about their
union activities and the union activities of other employees;
threatening employees that bargaining would begin at zero if
they chose a union as their collective-bargaining representa-
tive; issuing a notice restricting the movement of employees
within the plant because of their union activities; threatening
employees with discharge or layoff, or with other unspecified
reprisals because of their union activities; threatening that
employees on layoff would not be recalled because of their
union activities; threatening employees with inevitability of
strikes if they chose a union as their collective-bargaining
representative; and, creating the impression among employ-
ees that their union activities were under surveillance, Re-
spondent violated Section 8(a)(1) of the Act.
4. By discharging employee William Plunkard because of
his union activities; by laying off employees Brion Smith,
Mark Kijowski, Kevin Dosch, Nick Kuchta, Jeffrey
Copeland, Ron Vantine, and Mark Gorog because they en-
gaged in union activities; by failing and refusing to recall its
employees Brion Smith and Kevin Dosch, and by failing and
refusing to recall its employee Mark Kijowski until January
14, 1989, all because of their union activities; by granting a
$500 bonus to its employees in order to discourage them
from choosing a union and engaging in union activities; and,
by giving a written warning to its employee Bruce Offredi,
Respondent violated Section 8(a)(1) and (3) of the Act.
5. By giving its employees a $50 bonus after the election;
by transferring employee Tracy Reuter from its Freeport fa-
cility to its Kittanning facility, because of her union activi-
ties; by refusing to recognize or bargain with the Union, as
the exclusive bargaining representative of the appropriate
unit on matters relating to wages, hours, and other terms and
conditions of employment which are mandatory subjects for
the purpose of collective bargaining, Respondent violated
Section 8(a)(1), (3), and (5) of the Act.
6. Since November 14, 1988, the Union has been the ex-
clusive bargaining agent, within the meaning of Section 9(a)
of the Act, representing a majority of the employees in the
following appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by the Respondent at
its Freeport, Pennsylvania, and Kittanning, Pennsyl-
vania, facilities; excluding casual employees, office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I recommend that the Respondent be ordered to
cease and desist, and to take certain affirmative action de-
signed to effectuate the purposes of the Act. I further find
that the widespread and egregious violations of the Act by
Respondent evidence a general disregard of its employees’
statutory rights, and, therefore, a broad injunctive order is
warranted. Family Foods, 300 NLRB 649 (1990).
Respondent, having committed certain unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (5) of the Act,
shall be ordered to cease and desist from engaging in these
unfair labor practices.
Respondent, having discriminatorily terminated the em-
ployment of William Plunkard, and discriminatorily laid off
Brion Smith, Mark Kijowski, Kevin Dosch, Nick Kuchta,
Jeffrey Copeland, Ron Vantine, and Mark Gorog, shall be or-
dered to offer full and immediate reinstatement to each, and
pay them backpay and interest, to be computed in the man-
ner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173
(1987).117
Having found that a bargaining order is appropriate, Re-
spondent, on request, shall bargain collectively with the
Union as the exclusive bargaining representative of employ-
ees in the following appropriate unit:
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
118 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
119 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
All full-time and regular part-time production and
maintenance employees employed by the Respondent at
its Freeport, Pennsylvania, and Kittanning, Pennsylvania
facilities; excluding casual employees, office clerical
employees and guards, professional employees and su-
pervisors as defined in the Act.
In the event a bargaining order takes effect without a cer-
tification of representative, for reasons set forth in this deci-
sion, the election held in Case 6–RC–10106 shall be set
aside.
Nothing in this Order shall authorize or require that Re-
spondent rescind bonuses that have been conferred.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended118
ORDER
The Respondent, Dlubak Corporation, Freeport, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Creating the impression of surveillance of its employ-
ees’ union activities.
(b) Granting employees bonuses, without first bargaining
with the Union as their exclusive representative for collec-
tive-bargaining purposes, or, for the purpose of discouraging
employees from supporting the Union.
(c) Interrogating employees about their own union activi-
ties and those of other employees.
(d) Threatening employees with a reduction in benefits,
discharge, layoff, closure of the Respondent’s plants, and
other unspecified reprisals if the employees select a union as
their collective-bargaining representative, or because they en-
gage in union activities.
(e) Laying off employees because of their union activities.
(f) Discharging employees because of their union activi-
ties.
(g) Threatening employees that bargaining will begin at
zero if they select a union as their collective-bargaining rep-
resentative.
(h) Refusing to recall employees on layoff, because of
their union activities.
(i) Restricting movement of employees within the plant
because of their union activities.
(j) Transferring employees because of their union activi-
ties.
(k) Threatening employees with the inevitability of strikes
if they choose a union as their exclusive representative for
collective-bargaining purposes.
(l) Issuing written warnings to employees because of their
union activities.
(m) Refusing to bargain collectively with the Union as the
exclusive bargaining representative of the employees in the
appropriate unit.
(n) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer William Plunkard, Brion Smith, Mark Kijowski,
Kevin Dosch, Nick Kuchta, Jeffrey Copeland, Ron Vantine,
and Mark Gorog, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them whole for for any loss of earnings or other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy.
(b) Remove from its files any reference to the unlawful
discharge of William Plunkard, the unlawful layoff of Brion
Smith, Mark Kijowski, Kevin Dosch, Jeffrey Copeland, Ron
Vantine, and Mark Gorog, the unlawful written warning
issued to Bruce Offredi, and the unlawful transfer of Tracy
Reuter, and notify them in writing that this has been done
and that the discharge, layoffs, warning, and transfer will not
be used against them in any way.
(c) On request, bargaining with the Aluminum, Brick and
Glass Workers International Union, AFL–CIO–CLC, as the
exclusive representative of the employees in the following
appropriate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part-time production and
maintenance employees employed by the Respondent at
its Freeport, Pennsylvania, and Kittanning, Pennsylvania
facilities; excluding casual employees, office clerical
employees and guards, professional employees and su-
pervisors as defined in the Act.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Freeport, Pennsylvania, and Kittanning,
Pennsylvania facilities copies of the attached notice marked
‘‘Appendix.’’119 Copies of the notice, on forms provided by
the Regional Director for Region 6, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
IT IS FURTHER ORDERED that the challenge to the ballot of
William Plunkard be overruled; that the challenges to the
ballots of Timothy Ballas, W. F. Ruppersberger, Kathy
Claypool, Nancy Noroski, and Barbara Fratta be sustained;
and, that the challenges to the ballots of Mark Livengood
and Richard Anthony be sustained by agreement of the par-
ties.
1183DLUBAK CORP.
IT IS FURTHER ORDERED that Case 6–RC–10106 be sev-
ered from Cases 6–CA–21319, 6–CA–21538, 6–CA–21570,
and that it be remanded to the Regional Director for Region
6 for action consistent with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 6
shall, within 10 days from the date of this decision, open and
count the ballot of William Plunkard, and that he prepare and
serve on the parties a revised tally.
If the revised tally in this proceeding reveals that the
Union has received a majority of the valid ballots cast, the
Regional Director shall issue a certification of representative.
If, however, the revised tally shows that the Union has not
received a majority of the ballots cast, the Regional Director
shall set aside the election.