Gelita USA Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2008

352 N.L.R.B. 406 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 59
406
Gelita USA Inc. and United Food and Commercial
Workers International Union, Local 1142. Cases
18–CA–18406 and 18–RC–17500
April 30, 2008
DECISION, ORDER, AND DIRECTION1
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This case involves several unfair labor practices that
the Respondent, Gelita USA Inc. (Gelita), is alleged to
have committed during a union organizing campaign
among its laboratory employees in the spring of 2007.
As explained below, we agree with the judge that Gelita
violated Section 8(a)(1) of the Act by promising benefits
to unit employees, interrogating two employees about
their union sympathies, and telling employees that, in the
event of an economic strike, they would have no job pro-
tection if replaced. We also agree with the judge, for the
reasons stated in his decision, that Gelita violated Section
8(a)(3) by accelerating the termination of Heidi Young2
and that Young was an eligible voter whose ballot should
be opened and counted.3
1. We concur with the judge’s finding that, under the
facts presented here, Supervisor Dean Wood unlawfully

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 In determining that the Respondent violated Sec. 8(a)(3), the judge
found that the General Counsel established that Young’s union activity
was a motivating factor in Respondent’s acceleration of her termination
date, as shown by: (1) Young’s union activity; (2) Respondent’s knowl-
edge of that activity; (3) Respondent’s antiunion animus; and (4) a
causal connection between that animus and the accelerated termination
date. Although Board cases typically do not include (4) as an inde-
pendent element (see, e.g., Consolidated Bus Transit, Inc., 350 NLRB
1064, 1065–1066 (2007)), because Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982)), is a causation analysis, Chairman Schaumber agrees with its
addition to the formulation. See, e.g., Shearer’s Foods, 340 NLRB
1093, 1094 fn. 4 (2003).
3 On December 21, 2007, Administrative Law Judge William N.
Cates issued the attached decision. Gelita filed exceptions and a sup-
porting brief, and the Union filed an answering brief.
The Board has considered the decision and the record in light of the
exceptions and briefs, and has decided to affirm the judge's rulings,
findings, and conclusions and to adopt the recommended Order.
Gelita has implicitly excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
promised a benefit to employees by indicating that he
was going to remedy a staffing problem in the laboratory.
During a meeting with employees on the day before the
election, Wood stated that he knew the laboratory was
understaffed, and that his first goal would be to get the
lab staffed because there was a lot of work and not a lot
of people. Wood made this statement in conjunction
with a request to employees to reject the Union, and
there is no evidence that Gelita had been planning to
remedy the understaffing irrespective of the Union’s
campaign. In these circumstances, we find that Wood’s
statement could reasonably be construed by employees
as a promise of a benefit in exchange for rejecting repre-
sentation by the Union.
Gelita argues that Wood’s statement did not constitute
a promise of a benefit because there is no evidence that
employees had complained about the staffing levels in
the laboratory, and therefore there was no employee
complaint to remedy. We find no merit in this argument.
Although the record contains no specific employee com-
plaints, it is apparent from Wood’s comments that under-
staffing in the laboratory was a problem that directly
affected employees, and that Gelita was aware of the
problem. Moreover, it is not critical that the employees
themselves had not complained about the staffing; the
question here is whether Wood promised employees a
benefit in exchange for rejecting the Union. See Dyn-
Corp, 343 NLRB 1197, 1198 (2004) (judge erred in re-
quiring the General Counsel to prove that promise of
benefits involved matters with which employees had
“problems”).
2. In adopting the judge’s finding that Human Re-
sources Consultant Kim Dellinger unlawfully interro-
gated employees Heidi Young and Vicki Claassen, we
reject Gelita’s contention that the exchange between
Dellinger and the employees was a casual conversation
among persons who were friendly to each other. There is
no evidence that Dellinger had a friendly relationship
with either Young or Claassen, or that the employees had
been willing to talk to Dellinger about their union sym-
pathies. Rather, the evidence indicates that both Young
and Claassen were reluctant to talk about the Union, giv-
ing vague responses to Dellinger’s inquiries and refusing
to make eye contact with her. Further, Dellinger testified
that she did not know Young personally, but only as an
employee of the company. Accordingly, we find no
merit in the Respondent’s contention.
3. As stated above, we agree with the judge that Gelita
unlawfully told employees that economic strikers would
have no job protection if replaced. River’s Bend Health
& Rehabilitation Services, 350 NLRB 184 (2007), cited
by Gelita in exceptions, is distinguishable from the pre-
GELITA USA INC. 407
sent case. In River’s Bend, the Board found that the em-
ployer did not violate the Act by telling employees that
the hiring of strike replacements “puts each striker’s con-
tinued job status in jeopardy,” because the statement was
entirely consistent with the law describing the rights of
strikers as set forth in Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969). See River’s
Bend, supra at 185. In contrast, the statement at issue
here, that strikers would have “no job protection if re-
placed,” is an incorrect statement of law, because eco-
nomic strikers have certain reinstatement rights pursuant
to Laidlaw.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Gelita USA Inc., Sergeant
Bluff, Iowa, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
IT IS FURTHER ORDERED that Case 18–RC–17500 be
severed from Case 18–CA–18406 and remanded to the
Regional Director for Region 18 for action consistent
with the Direction below.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
18 shall, within 14 days from the date of this decision,
open and count the ballot of Heidi Young, and then pre-
pare and serve on the parties a revised tally.
If the revised tally reveals that the Petitioner has re-
ceived a majority of the valid ballots cast, the Regional
Director shall issue a certification of representative. If
however, the revised tally shows that the Petitioner has
not received a majority of the valid ballots cast, the elec-
tion must be set aside and a new election held at such
time as the Regional Director deems appropriate.
Florence I. Brammer, Esq., for the General Counsel.1
Eric W. Tiritilli, Esq., for the Respondent.2
Jay M. Smith, Esq., for the Charging Party.3
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This unfair
labor practice case involves interference with employee rights
and an acceleration of the designated resignation date of an

4 Member Liebman did not participate in River’s Bend and expresses
no view as to whether it was correctly decided. She agrees, however,
that it is distinguishable from this case.
1 I shall refer to counsel for the General Counsel as counsel for the
Government or Government.
2 I shall refer to counsel for the Respondent/Employer as counsel for
the Company or Company.
3 I shall refer to counsel for the Charging Party/Petitioner as counsel
for the Union or the Union.
employee from June 6 to May 27, 2007. The representation
case involves objections filed by the Union/Petitioner on June
6, 2007, to conduct affecting the results of a National Labor
Relations Board (the Board) conducted election4 held on May
31, 2007, among certain employees5 of the Company/Employer
at its Sergeant Bluff, Iowa location. The Representation case
also involves the single challenged ballot of Heidi Young6
which is sufficient to affect the results7 of the election.
Young’s ballot was challenged by the Board agent conducting
the election because the Employer contended she was not em-
ployed by the Employer on May 31, 2007, the date of the elec-
tion. The Petitioner contends Young was eligible to vote be-
cause she would have been employed by the Employer on May
31, 2007, but for the Employer’s acceleration of her voluntary
termination, which was to have been effective on June 6, 2007.
On August 22, 2007, the Regional Director for Region 18 of
the Board issued a report on challenged ballot and objections,
order directing hearing, order consolidating cases, and notice of
hearing. The Regional Director noted the acceleration of
Young’s termination is the subject of an unfair labor practice
allegation in the unfair labor practice case and other of Peti-
tioner’s objections are coextensive with certain other unfair
labor practice allegations set forth in the unfair labor practice
complaint. Accordingly, the Regional Director ordered the
cases consolidated for trial. I heard these cases in trial in Sioux
City, Iowa, on October 11, 2007.
The unfair labor practice case originates from a charge filed
by United Food and Commercial Workers International Union,
Local 1142 (the Union) on June 12, 2007, and amended on
August 20, 2007, against Gelita USA Inc. (the Company). The
prosecution of this case was formalized on August 21, 2007,
when the Regional Director for Region 18 of the Board, acting
in the name of the Board’s General Counsel, issued a complaint
and notice of hearing (complaint) against the Company.
The complaint, as amended, alleges the Company, during
May 2007, interfered with, restrained, and coerced its employ-
ees in the exercise of rights guaranteed in Section 7 of the Na-
tional Labor Relations Act (the Act), thus, violating Section
8(a)(1) of the Act. Specifically, it is alleged the Company vio-
lated Section 8(a)(1) of the Act, during the specified time, by its
supervisors and/or agents, interrogating employees regarding
how they intended to vote in the upcoming union election;
promising employees it would be able to resolve any problems
the employees had with their current working conditions if they

4 The election was held pursuant to a Stipulated Election Agreement
approved on May 9, 2007, by the Regional Director for Region 18 of
the Board.
5 The stipulated unit is as follows:
All full-time and regular part-time Quality Assurance/Quality
Control laboratory employees, including the QA/QC Assistant as-
signed to the Quality Assurance/Quality Control Laboratory De-
partment at the Employer’s 2445 Port Neal Industrial Road, Ser-
geant Bluff, Iowa facility, excluding management employees, and
guards and supervisors as defined in the Act.
6 Heidi Young is the employee whose resignation was accelerated,
allegedly, for unlawful reasons.
7 Six votes were cast for the Petitioner and six votes against the Peti-
tioner with the one challenged ballot that of Heidi Young.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD408
abandoned their pursuit of union representation; and, in a
posted notice to its laboratory employees threatened they would
receive no job protection if they engaged in an economic strike
on behalf of the Union should the employees select the Union
to represent them. It is also specifically alleged the Company
violated Section 8(a)(3) and (1) of the Act by on or about May
27, 2007, accelerating the termination of employee Heidi
Young (Young), who had given notice of her intent to resign
her employment with the Company effective June 6, 2007.
The Company, in a timely filed answer to the complaint, de-
nied violating the Act in any manner alleged in the complaint.
The parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. I carefully observed the demeanor of
the witnesses as they testified. I have studied the whole record,
the posttrial briefs, and the authorities cited therein. Based on
more detailed findings and analysis below, I conclude and find
the Company violated the Act substantially as alleged in the
complaint.
FINDINGS OF FACT
I. JURISDICTION, LABOR ORGANIZATION STATUS, AND
SUPERVISOR/AGENCY STATUS
The Company is a Delaware corporation with an office and
place of business in Sergeant Bluff, Iowa, where it is, and has
been, engaged in the manufacturing of gelatin products. During
the 12 months ending August 21, 2007, a representative period,
the Company purchased and received at its Sergeant Bluff,
Iowa location goods and materials valued in excess of $50,000
directly from points outside the State of Iowa. The evidence
establishes, the parties admit, and I find the Company is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties admit and I find the Union is a labor organization
within the meaning of Section 2(5) of the Act.
It is admitted that Company Managing Director Rob May-
berry (Director Mayberry), Human Resources Vice President
Jeff Tolsma (VP Tolsma), Human Resources Consultant Kim
Dellinger (Consultant Dellinger), and Laboratory Manager
Dean Wood (Supervisor Wood) are supervisors and agents of
the Company within the meaning of Section 2(11) and (13) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a German-owned worldwide organization.
The only facility involved herein is the Sergeant Bluff, Iowa
location. The Company manufactures gelatin primarily for the
pharmaceutical and photographic industries with some produc-
tion for smaller “niche type” industries. The gelatin manufac-
tured at the Company is from cattle bones and porcine or pig
skins. The Company’s product goes to its customers basically
as a raw material in granular form. The pharmaceutical indus-
tries utilize the granular gelatin to manufacture medical cap-
sules and the photographic industries utilize the gelatin in the
processing of film. The Company’s 200 plus production and
maintenance employees at its Iowa location are represented by
the Union. It is the approximately 13 Iowa laboratory employ-
ees that we are concerned with here and those employees en-
gaged in an organizing campaign at the Company in May 2007.
There are two testing areas in the laboratory department namely
the microbiological and physical testing areas. There are some
additional testing areas such as a chemical testing area. The
microbiological, physical, and chemical testing by the labora-
tory employees is to ensure the quality of the properties that
comprise the gelatin and to determine how the gelatin can be
used in customer mixes which is the final product.
Laboratory technician Desiree McCaslen (McCaslen) and a
coworker contacted a representative of the Union in late March
or early April 2007, about setting up a meeting to address is-
sues and concerns among the laboratory employees. An initial
“meet and greet” session with a union representative was there-
after arranged. Prior to the first meeting McCaslen and others
handed out flyers to all laboratory employees announcing the
meeting. Two or three meetings followed the initial meeting
which culminated in the Board-conducted election of May 31,
2007. McCaslen served as an observer for the Union at the
election.
B. The Posted Notice
1. Complaint allegation
It is alleged at paragraph 5(a) of the complaint that during
May 2007, the Company in a posted notice in the laboratory
department, threatened employees they would receive no job
protection if they engaged in an economic strike on behalf of
the Union, should employees select the Union to represent
them.
a. Notice language
The notice posted in the laboratory reads;
IF THE UNION GETS IN and CALLS A STRIKE
what would you and your family do if you were faced with
bills incurred during a strike!
Economic Strikers Get. . . .
NO pay checks
NO unemployment compensation
NO job protection if replaced
Vote NO Union
It is the “No job protection if replaced” portion of the notice
that the Government alleges is an inaccurate statement of the
law and violates the Act.
Laboratory technicians Vicki Claassen (Claassen) and
McCaslen testified the notice was posted in the laboratory in
May 2007, with Claassen specifying it was posted on “our dry
erase board in the hall, in the walkway of the lab right when
you walk in.” Other flyers addressing strikes were also posted
along with the above notice.
b. Company’s evidence on the notice
The Company acknowledges it placed a one-page poster in
the laboratory area entitled, “If the Union Gets in and Calls a
Strike,” for 1 or 2 days in May 2007. Vice President Tolsma
testified he gave a Power Point presentation to the laboratory
employees on May 22, 2007, titled, “Strike Information.” The
GELITA USA INC. 409
Power Point presentation, which Tolsma did not stray from,
discussed, among other things; how strikes came about; how
strikes hurt everyone; how employees on strike do not get paid
by the Company; how economic strikers could be replaced;
how if a strike succeeded and damaged the Company some
employees may lose their jobs anyway; how the Union might
pay strikers but the amount might be less than employees
needed; how employees could work even during a strike; that
there are economic strikes and unfair labor practice strikes; and,
how an employer may operate during a strike.
2. Discussion and conclusions regarding the notice
It is undisputed the Company posted a notice in a prominent
place in its laboratory department for a day or so in May 2007,
that stated in part; “Economic Strikers Get . . . No job protec-
tion if replaced.” The Government argues this posting, on its
face, unlawfully conveys to employees the threatening message
that should they select union representation, and should that
representation lead to an economic strike, they would have “No
job protection if replaced.” The Government acknowledges
that an employer, such as the Company herein, may address the
subject of striker replacement of economic strikers without
fully detailing their protected rights so long as the employer
does not threaten that as a result of a strike employees will be
deprived of their rights in a manner inconsistent with estab-
lished Board law. The Government contends the Company has
stepped outside what it may lawfully say and made an unlawful
threat herein.
The Company contends the permissibility of its assertion in
the posted notice is supported by longstanding Board precedent.
The Company asserts it does not violate the Act by truthfully
informing employees they are subject to permanent replace-
ment in the event of an economic strike. The Company further
asserts it is not required to fully detail the protections an eco-
nomic striker may have when addressing striker replacements
so long as it does not threaten that as a result of a strike em-
ployees will be deprived of their rights in a manner inconsistent
with Board law. The Company argues no such unlawful state-
ments were set forth in the posting at issue.
Section 8(c) of the Act permits an employer to make predic-
tions regarding the consequences of union representation, in-
cluding strikes, provided its remarks are not accompanied by a
threat of reprisal or force or promise of benefit. Eagle Com-
tronics, Inc., 263 NLRB 515 (1982), is the leading case defin-
ing the extent of an employer’s obligation, on informing em-
ployees of the consequences of an economic strike, that may
result in their being replaced or incurring other hardships.
Stated differently, the Board in Eagle Comtronics, Inc., consid-
ered the extent of an employer’s obligation (on informing em-
ployees that they may be permanently replaced or suffer other
consequences in an economic strike) to provide an accurate
picture of employee rights under Laidlaw.8 In Eagle Comtron-
ics, Inc., supra at 515–516, the Board held:
The issue posed in this case is the degree of detail re-
quired of an employer who informs employees that they

8 Laidlaw Corp., 171 NLRB 1366 (1969), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
are subject to replacement in the event of an economic
strike. It is well established that, when employees engage
in an economic strike, they may be permanently replaced.5
Of course, “permanent replacement” does not mean that a
striking employee is deprived of all rights. Specifically,
striking employees retain the right to make unconditional
offers of reinstatement, to be reinstated upon such offers if
positions are available, and to be placed on a preferential
hiring list upon such offers if positions are not available at
the time of the offer.6 However, the Board has long held
that an employer does not violate the Act by truthfully in-
forming employees that they are subject to permanent re-
placement in the event of an economic strike. The Board
has held that such comments do not constitute impermissi-
ble threats under Section 8(a)(1), or objectionable conduct
in an election.7 Unless the statement may be fairly under-
stood as a threat of reprisal against employees or is explic-
itly coupled with such threats, it is protected by Section
8(c) of the Act. Therefore, we conclude that an employer
may address the subject of striker replacement without
fully detailing the protections enumerated in Laidlaw, so
long as it does not threaten that, as a result of a strike, em-
ployees will be deprived of their rights in a manner incon-
sistent with those detailed in Laidlaw. To hold otherwise
would place an unwarranted burden on an employer to ex-
plicate all the possible consequences of being an economic
striker. This we shall not do. As long as an employer’s
statements on job status after a strike are consistent with
the law, they cannot be characterized as restraining or co-
ercing employees in the exercise of their rights under the
Act.8 [Footnotes omitted.]
The Board in Unifirst Corp., 335 NLRB 706 (2001), further
discussed an employer’s rights (free speech) and its obligation
to present accurate, though not complete, information when
addressing the rights of economic strikers by stating “an em-
ployer may, for example, inform employees that they ‘could’ be
permanently replaced, without telling them that they would
retain employment rights.” The Board in Unifirst Corp. went
on to note:
Further, Eagle Comtronics by its own terms applies to
statements that are unaccompanied by threats.5 The deci-
sion articulates the Board’s policy of resolving in the em-
ployer’s favor any ambiguity occasioned by a failure to ar-
ticulate employees’ continued employment rights when in-
forming them about permanent replacement in the context
of an economic strike. Where, however, ambiguous com-
ments about striker replacement are part and parcel of a
threat of retaliation for choosing union representation. . . .
any ambiguity should be resolved against the employer.
[Footnotes and citation omitted.]
So long as an employer’s statements on job status after an
economic strike are consistent with the law, even thought all
rights are not fully explained, such statements are permissible
and do not violate the Act. River’s Bend Health & Rehabilita-
tion Services, 350 NLRB 184 (2007).
I find, in agreement with the Government, the Company’s
statement that if the employees selected union representation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD410
which led to an economic strike they would have “NO job pro-
tection if replaced” cannot be reconciled with the employees’
rights under Laidlaw. There is no question but that the Com-
pany may address economic strikes and striker replacement
without outlining in detail each and every right an economic a
striker may have, but it may not, as is the case here, threaten
they have “no” job protection if replaced. Employees would
have, for example, preferential recall, rehire and reinstatement
rights which certainly constitutes some job “protection.” The
Company’s poster clearly conveys to the ordinary employee
that if he or she engages in an economic strike and is replaced
the employee has no job protection whatsoever. Accordingly, I
find the Company threatened employees they would receive no
job protection if they engaged in an economic strike in viola-
tion Section 8(a)(1) of the Act.
I reject the Company’s contention that because the poster in
question was just one of many it provided concerning economic
strikes and striker rights that overall the Company conveyed
accurate information to its employees regarding economic
strikes. While there is no contention that other of the Com-
pany’s postings or Vice President Tolsma’s Power Point pres-
entation on strikes exceeded the bounds of the permissible such
does not somehow negate the threat contained in the posting at
issue.
C. The Interrogation
1. Complaint allegation
It is alleged at paragraph 5(b) of the complaint that on or
about May 22, 2007, Company Consultant Dellinger, interro-
gated employees regarding how they intended to vote in the
upcoming union election.
a. The Government’s evidence regarding the interrogation
Employee Young testified that on May 22, 2007, Consultant
Dellinger came into the microbiology laboratory around 3 p.m.
where she and coworker Claassen were. According to Young,
Dellinger asked, “[H]ow we were doing with all this stuff.”
Young responded it really wasn’t any concern to her. Young
said Consultant Dellinger commented, “Well, you have friends
here that you care about.” Young acknowledged she did and
said “Yes, so obviously I will vote how they want me to vote.”
Young testified that as Dellinger left the room she commented
people could not even look her in the eye anymore.
Claassen recalled Dellinger asking she and Young “do you
guys have your minds made up about this?” Claassen re-
sponded she was unsure. Claassen testified she assumed what
Dellinger meant by her question so she told Dellinger she was
“taking all the information in right now.” Claassen testified
Young said the results would not affect her since she would not
be there so she would just vote as her friends wanted her to.
b. Company’s evidence regarding the interrogation
Consultant Dellinger said she visited the laboratory on a
daily basis in May 2007. She did so to answer any questions
the employees might have, explaining, “[I]f they had any ques-
tions about what was going on, that we could address those
right away.” On her May 22, 2007 visit, she spoke with em-
ployees Young and Claassen. Dellinger could not recall ex-
actly what was said but added she was “uncomfortable” on that
occasion because it was “really the first that I’d been in to have
a direct conversation with a person in the lab and could not gain
eye contact.” Dellinger denied asking any employee how they
may vote in the union election. Dellinger explained she had
over 20 years’ experience in human relations and was very
careful when she spoke with employees and followed written
advice from the Company’s lawyers. Dellinger further ex-
plained she had been involved in other union type activities and
knew that in her position she had to be very careful what she
said to employees. Dellinger said that on one occasion in the
laboratory she told a laboratory employee she could not ask
how the employee was going to vote and did not want to know
but she needed to make sure all questions of the employees had
been answered.
2. Discussion and conclusions
I credit the essentially mutually corroborative testimony of
Young and Claassen regarding the May 22, 2007 meeting,
which Dellinger acknowledged, including the fact the employ-
ees would not make eye contact with her making her uncom-
fortable. I am also mindful Dellinger could not recall specifics
of her exchange with the employees on the occasion. I find
Dellinger inquired of Young and Claassen how they were doing
with all this stuff and if they had their minds made up about
this.
The Company contends Dellinger’s inquiry, even if made,
was nothing more than communication protected by Section
8(c) of the Act. The Company contends neither the words
themselves nor the context in which they were uttered suggest
an element of coercion or interference. Simply stated, the
Company asserts the 8(c) protected and uncoercive comments
of Dellinger, as attributed to her by Young and Claassen, can-
not constitute an unfair labor practice.
The Government, on the other hand, argues that asking em-
ployees if they have their minds made up may appear on the
surface to be less intrusive than asking them how they are going
to vote, but that the net intent and effect are the same. The
Government asserts the overall circumstances makes clear the
questioning by Dellinger, as credited above, tends to restrain,
coerce, and/or interfere with employees’ rights guaranteed by
the Act.
I note certain guiding principles before I address this allega-
tion of interrogation. Interrogation is not, by itself, a per se
violation of Section 8(a)(1) of the Act. The test for determining
the legality of employee interrogation regarding union sympa-
thies is whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed employees by the Act. Under this totality of cir-
cumstances approach, consideration is given to whether the
interrogated employee is an open or active supporter of the
union, the background surrounding the interrogation, the nature
and purpose of the information sought, the identity of the ques-
tioner, the place and/or method of the interrogation, and the
truthfulness of any reply by the questioned employee. Ross-
more House, 269 NLRB 1176, 1177 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The
above factors are not to be mechanically applied but rather are
GELITA USA INC. 411
to be useful indicia that serve as a starting point for assessing
the totality of the circumstances. That the interrogation might
be courteous and low keyed instead of boisterous, rude, and
profane does not alter the case.
I am fully persuaded Dellinger’s questioning of Young and
Claassen on May 22, 2007, constituted unlawful interrogation
that tended to restrain, coerce, and interfere with the employ-
ees’ protected rights. It is clear Dellinger’s questions con-
cerned the Union when she asked about all this “stuff” and if
they had their minds made up. Dellinger went to the laboratory
daily during May when the union campaign was going on. She
went to specifically address questions the employees might
have regarding the union organizing of the laboratory employ-
ees. On the May 22, 2007, occasion, she asked questions rather
then answering them. That Dellinger’s inquiry involved the
Union is clear. When Dellinger reminded Young she had
friends at the Company she cared about, Young responded she
did and would vote as they wanted her to vote made clear the
inquiry was really about the Union. Dellinger did not correct,
object to, or protest Young’s response that indicated the “stuff”
and having their “minds made up” referred to the Union. When
Young responded that it really did not concern her, Dellinger
did not let it rest there but rather pursued it further reminding
Young she had friends there she cared about trying to get
Young to be more responsive about her and her co-workers
union sympathies. Dellinger, a high management official with
the Company, advanced no legitimate reason for her inquiries.
Under all the circumstances, and as stated earlier, I am fully
persuaded Dellinger’s inquiries reasonably tended to restrain
and coerce employees and as such violates Section 8(a)(1) of
the Act and I so find.
D. May 30 Meeting Conducted by Supervisor Wood
1. Complaint allegation
It is alleged at paragraph 5(c) of the complaint that on May
30, 2007, during a meeting with laboratory employees, Super-
visor Wood promised employees the Company would be able
to resolve any problems employees had with their current work-
ing conditions if they abandoned their pursuit of union repre-
sentation.
a. Government’s evidence regarding the meeting
Laboratory technicians Claassen and McCaslen were present
at and testified regarding the May 30 laboratory employee
meeting conducted by Supervisor Wood. According to Claas-
sen, Wood first explained the laboratory was understaffed and
his first goal would be to have it fully staffed. Second, Wood
explained that with the change in supervision in the laboratory
department the employees had not had a chance to know or
observe his supervisory skills or procedures. Claassen said
Supervisor Wood asked the employees to give him 6 months
and if after 6 months they were not satisfied with the way
things were going “then [they] could go back to the Union.”
McCaslen testified it was the first time an immediate level
supervisor had sat down with the employees “and explained the
economic hardships the Company was going through with the
change in the market.” McCaslen further testified:
He explained; you know, that the Company was trying
and that they were making changes by moving him into
the lab, and that he felt he could do an adequate job of
making these changes if we gave him more time, because,
at that time he’d only been in there a few weeks and again
expressed his concerns that he felt we should hold off on
the union election. I think he asked for maybe like a six
month time frame.
b. Company’s evidence on the meeting
Supervisor Wood testified that when he spoke with the labo-
ratory employees on May 30, 2007, he simply wanted to ex-
plain to them what was going to happen the next day at the
union election. Wood testified, “I wanted everyone to be clear
and understand what the process was and how it was actually
going to physically work.” Wood said he also spoke about his
being placed in the laboratory and told the laboratory employ-
ees about the economic conditions at the Company as he under-
stood them. Wood said those were the “main points” of his
speech. Wood specifically denied telling the employees they
would be able to resolve any problems they had with their cur-
rent working conditions if they abandoned their pursuit of un-
ion representation. According to Wood, 11 or 12 of the labora-
tory technicians were present for the meeting. Wood utilized
“bullet point” type notes in giving his talk to the employees.
Wood could not recall if staffing levels came up in the meeting,
but acknowledged getting proper coverage in the laboratory had
been a problem for him.
2. Discussion and conclusions
I credit Claassen’s and McCaslen’s testimony regarding the
May 30, 2007 laboratory employee meeting conducted by Su-
pervisor Wood. I do so for a number of reasons. First, they
both appeared to be telling the truth as best they could recall.
Second, their testimony was essentially the same. Third, Su-
pervisor Wood, while unable to remember if staffing was men-
tioned in the meeting, clearly recalled staffing was a major
concern for him during the short time he had been in charge of
the laboratory. In light of the fact staffing was of such concern
for Wood, it is highly likely he discussed it at the meeting as
testified to by Claassen. Fourth, Wood did not deny the spe-
cific comments about the meeting that Claassen and McCaslen
attributed to him.
The Government contends Supervisor Wood’s comments
violate the Act because he unlawfully promised to resolve the
employees current working conditions if the employees aban-
doned their pursuit of union representation. The Company
contends the comments, even if made by Wood, were simply
generalized expressions asking for “more time” or “another
chance” and were within the limits of permissible campaign
propaganda.
Generalized expressions by employers are legally permissi-
ble in union campaigns. The Board in National Micronectics,
277 NLRB 993 (1985), found no violation of the Act where the
employer confessed it had neglected matters in the past and
asked for a second chance to make things better. The Board
held such to be generalized expressions (“another chance”
“more time”) and permissible. In Noah’s New York Bagels,
324 NLRB 266 (1997), the Board found no violation where the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD412
employer’s president, in part, in a speech 1 day before an elec-
tion, said the employer had “rapid growth” and “clearly made .
. . mistakes” but suggested “the best way to overcome our mis-
takes is for us to work together, without the intervention of a
third party . . . please vote to give us a second chance to show
we can do it,” and added, if they didn’t meet the employees
expectations the union would be there.
I find Wood’s comments exceeded permissible generalized
expressions. Wood noted the department was unstaffed and
explained his first goal would be to fully staff the department.
Simply stated, Wood clearly made a promise to remedy a spe-
cific problem which was understaffing. Wood pointed out to
the employees that other specific changes had recently been
made, namely, that he had been moved into the department as
the new supervisor. He indicated he felt he could do an ade-
quate job of carrying out other changes as well. Wood’s com-
ments, along with specific chances noted or promised, violated
Section 8(a)(1) of the Act as promises to resolve employee
problems if they abandoned their pursuit of union representa-
tion.
E. Young’s Accelerated Departure
1. Complaint allegation
It is alleged at paragraph 6 of the complaint the Company, on
or about May 27, 2007, accelerated the termination of em-
ployee Heidi Young, who had given notice of her intent to re-
sign her employment effective on June 6, 2007, because she
engaged in activities on behalf of the Union and to discourage
employees from engaging in those activities and to prevent
Young from voting in an upcoming election for May 31, 2007,
in Case 18–RC–17500. It is alleged the Company’s actions
violate Section 8(a)(1) and (3) of the Act.
a. The Government’s evidence regarding Young’s departure
Young, who holds a masters degree in forensic science, did
some of her undergraduate studies at a local college in Sioux
City, Iowa. While pursuing her studies Young worked at the
Company as a paid intern for 3 months each summer during
2003, 2004, and 2005. Each of those summers Young worked
in the quality assurance/quality control laboratory (laboratory
department or laboratory) where she was supervised the first
summer by Jeff Abell, the second summer by Ron Peter, and
the third summer by Michael Belkin. The laboratory manager
during most of that time was Carol Ostendorf. (Manager Os-
tendorf or Ostendorf).
In April 2007, Young made application for full-time em-
ployment with the Company and was interviewed and hired by
QA/QC Manager Ostendorf. Young explained during the in-
terview that if job opportunities came about for something for-
ensically related she would accept such an offer. In fact,
Young told Ostendorf during her interview she actually had a
job interview scheduled in her field of expertise.
Young’s first day of full-time employment with the Com-
pany was April 9, 2007. On or about April 25, 2007, Young
was offered and accepted employment with the Wisconsin State
Crime Laboratory as a DNA analyst in Madison, Wisconsin.
Young applied with the Wisconsin State Crime Laboratory
before she started full-time employment with the Company.
Young opined the job in Wisconsin better suited her job skills.
On about April 26, 2007, Young notified QA/QC Manager
Ostendorf of her acceptance of employment elsewhere and
advised Ostendorf her last day of employment with the Com-
pany would be June 6, 2007. Young testified Ostendorf at first
seemed “flustered” saying, “no, you cannot leave” but made no
comment about her proposed June 6 departure date. Young
testified in fact no one in management, between late April and
May 23, 2007, mentioned her proposed departure date of June
6.
During her tenure at the Company, Young served as a labo-
ratory technician in the microbiology section of the quality
assurance quality control department where she performed tests
to ensure bacteria was not present or growing in the gelatin
produced by the Company. Of the 12 employees in the labora-
tory, Young was a friend of colaboratory technician McCaslen
prior to working at the Company and became a friend of labora-
tory technician Claassen at work. The three technicians ate
together and took breaks together. Young testified they dis-
cussed work complaints two or three times per week and that
Supervisor Peter had been present in the area when they had
some of their work-related discussions.
Young testified she and McCaslen were working together on
May 23, 2007, but she [Young] was “very frustrated” doing her
job that day. Young explained her frustration resulted from the
fact a coworker, Trish Peterson, “just kept following [her]
around like [she] didn’t know how to do stuff.” While still
frustrated someone, and Young wasn’t sure who at the time,
asked how her day was going. Young responded, “I can’t wait
to get out of here.” Young was so “flustered” she did not even
see who asked the question but later learned it was Consultant
Dellinger. Young did not hear Dellinger make any response
and she could not recall using any profanity in the exchange.
Young acknowledged, however, it was possible she said, “hell”
that she was “frustrated.” Young went on to acknowledge
“when I’m mad, I . . . tend to use profanity.”
Laboratory technician McCaslen testified about the occasion
when Young had “an alleged outburst” in the laboratory.
McCaslen testified Young had just returned from a bathroom
break “pretty upset because of a confrontation she had had with
a fellow co-worker, Trish Peterson.” McCaslen tried to calm
Young down “a little bit” when Consultant Dellinger came into
the area and asked how it was going. McCaslen said she was
too busy to respond but that Young replied, “I can’t wait to get
out of here.” Dellinger responded, “[W]well that’s too bad”
and left.
Coworker Claassen testified Young said, “I’m so frustrated, I
can’t wait to get out of this place.” Claassen first testified no
profanity was used but on cross-examination said she could not
recall if an obscenity was used but that Young could have.
Later that same day [May 23], Consultant Dellinger came
back to the laboratory and asked Young to accompany her to
Supervisor Wood’s office. Those present in Wood’s office
were Wood, Young, and Dellinger. Young testified Dellinger
said “[w]e are going to accommodate your needs, and your last
day will be May 27th.” Young asked why, and asked if it was
because the Company did not want her to vote. According to
GELITA USA INC. 413
Young, Dellinger responded only with “Oh.” Young told them
she was not stupid and told Consultant Dellinger she was
“screwing her/lab employees over” and the Company “didn’t
care about their employees whatsoever.” Young said a “lot”
more but could not recall what else she said. Young did request
to speak with Supervisor Wood alone. Dellinger left to see if a
check had been cut for Young. Young told Wood she was
sorry and Wood said he did not know what was going on and
had no control over it.
McCaslen testified she was kind of nosey and watched as
Young went to Wood’s office and as Young returned from the
office. McCaslen said Young was “beet red and crying” and
they then discussed what had taken place.
At about mid-afternoon that same day, Young asked Super-
visor Wood if she should show for work on May 28, 2007, if
she had not heard anything by the end of her current work shift.
However, at approximately 4 p.m. that afternoon Young was
given a hand-delivered letter from Consultant Dellinger that
stated:
As discussed, we have accepted your resignation as tendered.
Your last day at GELITA USA will be May 27, 2007. You
will be paid through June 6, 2007. Included with your last
check will be any accrued unused vacation.
When Young read the letter she became “very upset” and
asked Supervisor Wood “to get Kim Dellinger down here so I
could talk to her and Desiree McCaslen would be present with
me in this meeting.” When Consultant Dellinger arrived
Young told her, “[T]his letter is a lie.” Dellinger asked how
and Young told her she did not accept resignation on May 27
that she was being forced into that date. Young told Dellinger
she had never been so “disrespected” by a human resources
department.
McCaslen testified she was present as Young “pleaded her
case” with Wood and Dellinger, and, when Young expressed
her desire to work until June 6 because she did not want to sit at
home. According to McCaslen, Supervisor Wood and Consult-
ant Dellinger, both explained to Young that most companies
paid employees off when they gave notice but that was their
last day at work. McCaslen told them she had been there five
years and had never seen it done that way. Young asked if she
would have to work that Saturday and Sunday and was told she
would unless she could get someone to cover for her.
McCaslen testified she was one of the “biggest complainers”
in the laboratory department because she “always felt over-
worked or underappreciated.” McCaslen said she complained
on a daily basis to Supervisor Peter but was never disciplined
for doing so. McCaslen explained, for example, that when
Supervisor Peter gave out paychecks each Friday she always
said, “Oh, please tell me that’s my pink slip.” McCaslen said
Peter thought her comments to be a joke “and between us it
kind of was.” She also said when Supervisor Peter would ask
how things were going she would say, “I think I’m going to
quit right now and you can finish this for me.” Nothing was
ever done to McCaslen for her comments.
b. The Company’s evidence regarding Young’s departure
Consultant Dellinger testified she did not know Young per-
sonally but only as an employee of the Company who started
full time with the Company April 9, 2007. Dellinger was on
vacation when Young submitted her resignation with her pro-
posed departure date of June 6, 2007. After returning from
vacation, Dellinger talked with Young about her newly ac-
cepted position in Madison and stated Young “was very excited
about it” “that it was in forensics which is what she wanted to
do and what she had studied.” Dellinger said after Young sub-
mitted her resignation she continued to work at her same duties,
shift, position, and pay.
Dellinger spoke with Young in the laboratory on May 23,
2007, and noted employee McCaslen also was in the area.
Dellinger initiated the conversation by asking how things were
going. According to Dellinger, Young responded that “she
couldn’t wait to get the hell out of here.” Dellinger said she
recalled Young’s exact words because Young “was very frus-
trated . . . you could tell in her face and in her actions, I mean,
that she was frustrated and upset.” Dellinger was “taken
aback” by Young’s comments.
After the encounter in the laboratory department, Dellinger
telephoned Vice President Tolsma and also spoke with Director
Mayberry about Young’s comments. Dellinger said she spoke
with her superiors because Young’s “frustration and . . . want-
ing to get away from there made [her] very concerned.”
Dellinger also said she talked with her superiors because it was
no secret that at the time they were “going through a union
campaign” but that she “felt strongly that it was time to let
Heidi [Young] go with the—with the attitude that she had dis-
played to me.” Dellinger explained that work performed by the
laboratory technicians is very important to the Company be-
cause “[e]verything that goes out to our customers has to go
through the laboratory to be tested.” Dellinger said the decision
was a difficult one regarding whether to have Young leave
earlier than requested “because we didn’t want it to be for any
reason other than it was the right thing to do for the employee
and for the Company.”
Dellinger said Tolsma and Mayberry were not generally in-
volved in every disciplinary decision but this was one she did
not wish to make on her own. The managers’ final decision
was to accelerate Young’s resignation date, but to ensure she
was treated fairly, the Company would pay Young through her
requested June 6, 2007 date. Dellinger explained that when an
employee was very frustrated and upset “[i]t just has a ripple
effect out to all of the other people that you work with.”
Dellinger said she wrote Young on May 24, 2007, at Young’s
request, accepting her resignation.
Dellinger testified she never at any time observed Young
wearing union buttons, pins, hats, or anything that would indi-
cate her support for the Union, nor did Young ever tell her she
favored the Union.
Vice President Tolsma testified he was in Germany at the
time of the events surrounding Young but was telephoned by
Dellinger and given an overall summary of the situation.
Tolsma was apprised of Young’s short tenure with the Com-
pany, that she had obtained employment elsewhere in her field
of study, and that she wanted “to get the hell out of here.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD414
Tolsma agreed with Dellinger’s recommendation to accelerate
Young’s departure date saying; “Fine, given the situation, you
know, we can accommodate that.”
Tolsma said it was not common practice, but the Company
had, on occasion, accelerated the termination of other employ-
ees. Tolsma explained that about 3 years ago former director of
information technology, Joan Pyer, told him and her immediate
supervisor, she could not work a certain way and he told her
she was resigning with that being her last day. Tolsma said that
when Vice President of Production Carl Sitzman resigned in
January or February 2007, he granted Sitzman’s request to
leave his employment early. Tolsma also testified about a
situation that happened 4 or 5 years earlier involving environ-
mental engineer James Haigh, who at the time was on a per-
formance improvement plan. Tolsma said Haigh told him he
could not work for his superior because his supervisor was not
an engineer. Tolsma said he simply told Haigh “[W]e’ll accept
your resignation, and your last day is today.”
2. Discussion and conclusions
The Government contends the Company accelerated the ter-
mination date for Young, a valued employee with a strong work
ethic, because of her concerted protected activity of making a
statement to management that evinced prounion voting inten-
tions, and to have her off the Company’s payroll and not eligi-
ble to vote in the Board-conducted election for the laboratory
employees.
The Company contends Young’s final day of work was ac-
celerated not because of any union or concerted activity but
simply because of her statement to a management official that
she could not wait to get the hell out of the Company. The
Company asserts it was only as a direct result of Young’s desire
to leave as soon as possible that it elected to permit Young to
do just that and was not based on animus towards the Union.
Before examining this case under the Board’s dual-
motivation test or analysis, it is helpful to determine exactly
what Young said when she announced she could not wait to
leave her employment with the Company. I find Young said, “I
can’t wait to get the hell out of here” when asked by Consultant
Dellinger on May 23, 2007, how her day was going. I am not
unmindful that Young, McCaslen, and Claassen all could not
recall Young using any profanity. However, Young said it was
possible she said, “hell” that she was “frustrated” and acknowl-
edged that when she was “mad” she tended to use profanity.
McCaslen said Young was “pretty upset” that morning because
Young had a “confrontation” with a “coworker” and she,
McCaslen, was trying to calm Young down “a little bit.” Al-
though Claassen could not recall if Young used profanity, she
acknowledged Young could have. The evidence establishes
and Young’s demeanor on the witness stand reinforces, a find-
ing that Young was at times frustrated, upset, angry, and in
need of being calmed down a bit at work. When Young was
upset, which appears to have been often, she admittedly used
profanity. I am fully persuaded she used the word “hell” when
she said she could not wait to get out of the Company. I turn
now to the dual-motive analysis.
To establish a violation of Section 8(a)(3) of the Act, the
Government must prove, by a preponderance of the evidence,
that an individual’s protected activity was a motivating factor in
the employer’s action. Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). Once the Gvernment makes this showing, the
burden of persuasion then shifts to the employer to prove its
affirmative defense that it would have taken the same action
even in the absence of the protected conduct. To sustain its
burden the Government must show that the employee was en-
gaged in protected activity, that the employer was aware of that
activity, that the activity or the employee’s union affiliation
was a substantial or motivating reason for the employer’s ac-
tion, and, there was a causal connection between the em-
ployer’s animus and its challenged conduct or decision. The
government may meet its Wright Line, supra, burden with evi-
dence short of direct evidence of motivation, i.e., inferential
evidence arising from a variety of circumstances such as union
animus, timing or pretext may sustain the Government’s bur-
den. Furthermore, it may be found that where an employer’s
proffered nondiscriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); and Fluor
Daniel, Inc., 304 NLRB 970 (1991). Motivation of union ani-
mus may be inferred from the record as a whole, where an em-
ployer’s proffered explanation is implausible or a combination
of factors circumstantially support such inference. Union Trib-
une Co. v. NLRB, 1 F.3d 486, 490–492 (7th Cir. 1993). Direct
evidence of union animus is not required to support such infer-
ence. NLRB v. 50-White Freight Lines, Inc., 969 F.2d 401 (7th
Cir. 1992). If it is found an employer’s actions are pretextual,
that is, either false or not relied on, the employer fails by defini-
tion to show it would have taken the same action in the absence
of the protected conduct and it is unnecessary to perform the
second part of the Wright Line analysis. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982), Metropolitan Transportation Services, 351 NLRB 657,
659 (2007).
The first burden the Government must meet is to establish
Young engaged in protected activity. Young, McCaslen and
Claassen talked two or three times per week about work related
complaints sometimes in the presence of Supervisor Peter.
McCaslen contacted the Union setting in action the events
which led to the Board-conducted election. Consultant
Dellinger interrogated Young and Claassen about whether they
had made their minds up about this “stuff” leading Young to
respond she was not going to be there so it did not matter to
her. This “stuff,” as more fully described elsewhere herein,
referred to the union campaign and election. Dellinger did not
leave Young’s response alone but reminded Young she had
friends there and should care about them. Young obliged
Dellinger telling her she would vote however her friends
wanted her to vote. Young’s friends included McCaslen, thus
leading Consultant Dellinger to conclude Young would support
unionization in keeping with the desires of her friends. It was
well known McCaslen supported the Union. McCaslen testi-
fied, for example, she had met with Dellinger many times re-
garding work-related issues in the laboratory. McCaslen said
she and Consultant Dellinger had a “good open relationship”
GELITA USA INC. 415
and that they “talked frequently.” McCaslen recalled that
Dellinger told her in late May 2007, in the laboratory that she
was “worried” “that you will end up with less after negotiations
than you have now.” Thus,not only did Young engage in pro-
tected activities but the Company knew of them, in part, from
Dellinger’s unlawful interrogation of Young and by Young’s
association with others Dellinger knew to support the Union.
Young’s termination date was accelerated 1 day after she
was unlawfully interrogated by Dellinger revealing her pro-
union inclinations. Specifically, the Company raised no objec-
tion to Young’s proposed June 6, 2007 departure date from the
time she announced her resignation on April 26, 2007, until 1
day after Dellinger unlawfully interrogated her on May 22,
2007, at which time Young revealed her apparent support for
the Union.
The Company’s contention that Young’s comment, “[S]he
couldn’t wait to get the hell out of here” brought about her
accelerated departure as an accommodation to her, and for no
other reason, does not withstand examination. The Company
seized on Young’s comment, as a pretext, to accelerate her
departure date so as to make Young ineligible to vote in the
Board-conducted election. First, others complained about
working conditions but had no action taken against them for
doing so. Laboratory employee McCaslen admitted she was
one of the “biggest complainers” in the laboratory department
complaining daily as “overworked or under appreciated,” but
was never disciplined for her complaints. McCaslen told Su-
pervisor Peter, on occasions when he handed out payroll
checks, to please tell her it was her pink slip and in response to
his inquiries about how things were going she would tell him
she was going to quit and he could finish her work. Peter, as
her laboratory supervisor, took no action against McCaslen for
her statements of dissatisfaction, yet the Company seized on
Young’s one flareup and accelerated her departure date. I note
the Company had no policy regarding profanity in the work-
place on which it might attempt to justify its offense at Young’s
use of the term “hell” in her comments.
The Company had no established past practice of accelerat-
ing resigning employees’ proposed departure dates. Vice
President Tolsma testified it was not a common practice to
accelerate dates but nevertheless gave three examples where
departure dates were accelerated. One example was of a former
director of information technology who stated she could not
work a certain way and was told by Tolsma she was resigning
immediately. The person was a management official not a
laboratory employee and she was in essence fired by being told
she was resigning immediately. The second example involved
a vice president of production who specifically requested an
accelerated departure date. The third example involved an
environmental engineer, who was on a performance improve-
ment plan, who told Tolsma he could not work for his assigned
supervisor, because the supervisor was not an engineer.
Tolsma accepted his resignation that day. These are not analo-
gous to Young’s situation nor do they offer any justification for
the Company’s actions against Young rather it simply high-
lights the pretextual nature of the Company’s acceleration of
Young’s departure date.
The pretextural nature of the Company’s actions toward
Young is further demonstrated by the fact Consultant Dellinger
had discussions with the highest levels of management, even
those outside the country, but failed to consult with or provide
early notice to Young’s immediate supervisor, Wood.
Dellinger acknowledged that Vice President Tolsma and Direc-
tor Mayberry were not generally involved in disciplinary deci-
sions but she “felt strongly that it was time to let Heidi [Young]
go with . . . the attitude that she displayed to me” and she said it
was no secret about the Company “going through a union cam-
paign.” It appears quite clear Dellinger knew she was not fol-
lowing past practice involving this highly educated laboratory
employee but also knew it was time to remove Young from the
payroll in light of the upcoming union election.
Further evidence of the pretextural nature of the Company’s
actions is demonstrated by Dellinger’s stated concern that
Young’s frustrated and upsetting comments would send “a
ripple effect out to all of the people” she worked with. I note
after Young had been told of her accelerated departure date she
was asked to work, unsupervised, for 2 additional workdays. If
the Company truly was concerned that Young’s continued
presence in the laboratory would be detrimental to the work
orce it would not have insisted she work additional days or, if
not, find on her own a replacement for herself those additional
workdays. The laboratory was understaffed at the time.
I find the Company accelerated Young’s departure date for
unlawfully motivated reasons violating Section 8(a)(3) of the
Act. The Government’s prima facie case has not been rebutted,
as the reasons advanced by the Company are pretextual.
CONCLUSIONS OF LAW
1. By, since on or about May 2007, interrogating its em-
ployees about their union activities and support for the Union;
promising employees to resolve any problems employees had
with their current working conditions if they abandoned their
pursuit of union representation; and, threatening employees
they would receive no job protection if they engaged in eco-
nomic strikes on behalf of the Union, should employees select
the Union to represent them, the Company violated Section
8(a)(1) of the Act. By on May 27, 2007, accelerating the ter-
mination of employee Heidi Young, who had given notice of
her intent to resign her employment with the Company on June
6, 2007, the Company violated Section 8(a)(3) and (1) of the
Act.
2. In as much as these unfair labor practice violations are
coextensive with the Union’s objections to the election, the
objections are sustained and the election should be set aside.
3. The ballot of Heidi Young should be opened and counted.
A new tally of ballots should be prepared and, depending on the
outcome of the election, an appropriate certification should
issue. If the outcome shows that a majority of the valid votes
counted is in favor of union representation the Union would
obviously withdraw its objections in favor of a certification of
representative. On the other hand, if the revised tally shows
that a majority of the valid votes counted was against unioniza-
tion, a new election should be conducted based on the Union’s
objections.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD416
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. Although the Company discriminatorily
accelerated the termination date of its employee Heidi Young
from June 6 to May 27, 2007, I shall not recommend that she be
made whole or reinstated because she was paid through her
voluntary resignation date and voluntarily left the Company for
other sought after employment. I do, however, recommend the
Company be ordered, within 14 days of the Board’s Order, to
remove from its files any reference to the unlawful acceleration
of Young’s departure date and within 3 days thereafter, notify
her in writing it has done so. I also recommend the Company be
ordered, within 14 days after service by the Region, to post an
appropriate “Notice to Employees” in order that employees
may be apprised of their rights under the Act and the Com-
pany’s obligation to remedy its unfair labor practices.
With respect to the representation case, I recommend that a
revised tally of ballots be issued after counting the ballot to be
opened. In the event that a majority of the votes are for the
Union, it is recommended that a certification of representative
be issued. In the event, however, that a majority is cast against
union representation, it is recommended that a new election be
held.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Company, Gelita USA Inc., Sergeant Bluff, Iowa, it of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees about their union activities
and support for the Union; promising employees to resolve any
problems employees had with their current working conditions
if they abandoned their pursuit of union representation; and,
threatening employees they would receive no job protection if
they engaged in economic strikes on behalf of the Union,
should employees select the Union to represent them.
(b) Accelerating the termination date for employees because
they engaged in union and/or other protected activities and to
prevent them from voting in a scheduled Board conducted rep-
resentation election.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the Board’s Order, remove from its
files any reference to its acceleration of Heidi Young’s depar-
ture date from the Company and, within 3 days thereafter, no-

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
tify her in writing that this has been done and that such will not
be used against her in any manner.
(b) Within 14 days after service by the Region, post at its
Sergeant Bluff, Iowa facility copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 18 after being signed by
the Company’s authorized representative shall be posted by the
Company and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices are customarily
posted. Reasonable steps shall be taken to ensure that the no-
tices are not altered, defaced, or covered by any other material.
In the event that during the pendency of these proceedings the
Company has gone out of business or closed the facilities in-
volved in these proceedings, the Company shall duplicate and
mail, at its own expense, a copy of the notice to employees, to
all employees employed by the Company on or at any time
since May 22, 2007.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 18 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Company has taken to comply.
IT IS FURTHER ORDERED that the proceeding in Case 18–RC–
17500 be severed and remanded to the Regional Director for
Region 18 for further action consistent with this decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interrogate our employees about their union ac-
tivities and/or support for United Food and Commercial Work-
ers Union, Local 1142, or any other labor organization.
WE WILL NOT promise our employees we would be able to
resolve any problems employees had with their current working
conditions if they abandoned their pursuit of union representa-
tion.
WE WILL NOT threaten our employees that they would receive
no job protection if they engaged in economic strikes on behalf
of the Union, should employees select the Union to represent
them.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
GELITA USA INC. 417
WE WILL NOT accelerate the termination date of employees,
who have tendered their resignations, because of their union or
concerted protected activities or to prevent them from voting in
a Board-conducted election.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to our acceleration of Heidi Young’s
departure date from our Company and, WE WILL, within 3 days
thereafter, notify her in writing that this has been done and that
her accelerated departure will not be used against her in any
manner.
GELITA USA INC.