HENDRICKSON USA, LLC

National Labor Relations Board - Board Decisions

Jan 25, 2018

366 NLRB No. 7 (N.L.R.B. 2018)

366 NLRB No. 7
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hendrickson USA, LLC and Gary Pemberton. Case
09–CA–159641
January 25, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On October 31, 2016, Administrative Law Judge Don-
na N. Dawson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief. The General
Counsel filed exceptions.1
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 stipu-
lated record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings, and con-
clusions2 and to adopt her recommended Order as modi-
fied.3

1 The Respondent attempted to file an answering brief, which we re-
jected as untimely by letter dated December 13, 2016. We have not
considered that untimely answering brief or the General Counsel’s
reply thereto.
2 In affirming the judge’s dismissal of the allegation that the Re-
spondent unlawfully told employees that signing authorization cards or
electing the union would negatively impact their ability to individually
represent themselves, Members Pearce and McFerran note, without
passing on whether it was correctly decided, that the judge correctly
applied Tri-Cast, Inc., 274 NLRB 377 (1985), and they decline at this
time the General Counsel’s invitation to revisit that decision. Member
Emanuel finds that the judge correctly applied Tri-Cast.
For the reasons stated by the judge, we adopt her finding that the Re-
spondent violated Sec. 8(a)(1) of the Act when it conveyed to employ-
ees in a PowerPoint presentation that, if they were to elect the Union,
“the culture will definitely change,” “relationships suffer,” and “flexi-
bility is replaced by inefficiency.” Elsewhere in that presentation, the
Respondent extolled certain positive aspects of its then-current work
environment, asserting that there is an “easy-going atmosphere,” em-
ployees have the “freedom to do [their] job,” and there is “re-
ward/advancement for those that work hard and produce.” In this con-
text, employees would reasonably interpret the three challenged state-
ments—”the culture will definitely change,” “flexibility is replaced by
inefficiency,” and “relationships suffer”—as conveying a threat that, if
the employees elect the Union, the Respondent would retaliate by
changing the easy-going culture and by adopting a less flexible mana-
gerial approach in its workplace relationships. Contrary to the dissent,
which characterizes the Respondent’s comments as lawful expression
under Sec. 8(c), we agree with the judge that the Respondent’s state-
ments reasonably threatened adverse changes to the existing work
culture if employees selected union representation, thereby leading
employees to believe that their work environment “would completely
deteriorate.” That clearly runs afoul of Sec. 8(a)(1).
Contrary to his colleagues, Member Emanuel would find that the
three challenged PowerPoint statements are lawful. In his view, the
disputed statements lawfully describe a “fact of industrial life”—
specifically, the fact that the onset of union representation changes the
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hendrickson USA, LLC,
Lebanon, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
Substitute the following for paragraph 2(a):
“(a) Within 14 days after service by the Region, post
at its Lebanon, Kentucky facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these

manner in which employment issues may be addressed in the work-
place. Tri-Cast, supra at 377–378. Thus, in a newly unionized work-
place, employers may no longer implement unilateral changes in em-
ployment terms and conditions without giving the union notice and the
opportunity for bargaining (unless parties enter into a collective-
bargaining agreement that permits certain unilateral changes); employ-
ers are prohibited from having direct dealings with employees that
unlawfully bypass the union; and these requirements—combined with
the potential resort to economic weapons—cause some measure of
inefficiency, reduced flexibility, an arguable adverse effect on relation-
ships, and a change in workplace culture. Other bullet points in that
same slide (e.g., “You’ll be giving up your right to speak for and repre-
sent yourself” and “Every change to wages, hours, and working condi-
tions requires negotiations controlled by the union—not you”) reinforce
the notion that the presentation describes changes based on legal prin-
ciples in effect at workplaces where employees have union representa-
tion. Thus, the comments in Respondent’s PowerPoint constitute the
lawful expression of “views, argument, or opinion” which, under Sec.
8(c) of the Act, cannot be regarded as “evidence of an unfair labor
practice,” and Member Emanuel believes the statements cannot reason-
ably be deemed unlawful threats of reprisal or retaliation by the Re-
spondent based on a potential decision by employees to have union
representation.
3 We have modified paragraph 2(a) of the judge’s recommended Or-
der in accordance with our decision in Excel Container, Inc., 325
NLRB 17 (1997), to reflect the fact that the first unfair labor practice
was committed on August 24, 2015.
4 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.”
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since August 24, 2015.”
Dated, Washington, D.C. January 25, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Gideon Martin, Esq., for the General Counsel.
Keith L. Pryatel, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. Based on a
charge filed by Charging Party Gary Pemberton (Pemberton/the
Charging Party) on September 8, 2015, the General Counsel
issued a complaint and notice of hearing on February 10, 2016.1
The complaint alleged that Hendrickson USA, LLC (Respond-
ent/Hendrickson) violated Section 8(a)(1) of the Act when it
misrepresented employees’ statutory rights under Section 9(a)
of the Act, and impliedly threatened employees’ access to man-
agement and threatened employees with a more onerous work
environment if employees became unionized. In its answer,
Respondent denied engaging in any unfair labor practices and
asserted several affirmative defenses.
On April 20, 2016, the General Counsel2 and Respondent
filed a Joint Motion and Stipulation of Facts (Jt. Stip.), along
with final exhibits on the stipulated record, requesting that I
approve the stipulated facts in lieu of a hearing, and issue a
decision based on them and the complete stipulated record,
pursuant to Section 102.35 (a)(9) of the Board’s Rules and
Regulations. On May 3, 2016, I granted the parties’ joint mo-
tion.
On the entire record, including the stipulated facts and exhib-

1 On February 19, 2016, the Regional Director issued an Erratum to
the complaint and notice of hearing, and attached as an exhibit a letter
from Respondent to employees. That letter is discussed further in this
decision. (See Joint Exhibits (Jt. Exhs.) F and I).
2 For brevity purposes, the counsel for the General Counsel is re-
ferred to at the General Counsel.
its,3 and after considering the briefs filed by the General Coun-
sel and Respondent, I make the following
FINDINGS
I. JURISDICTION
The parties stipulated to the following facts as to the nature
of Respondent’s business and jurisdiction.
Respondent, a Delaware limited liability company, has been
engaged in the manufacture and supply of suspension and axle
systems at its office and production facility in Lebanon, Ken-
tucky (Respondent’s facility). In conducting its business opera-
tions during the 12-month period ending on January 31, 2016,
Respondent sold and shipped from its facility goods valued in
excess of $50,000 directly to points outside the Commonwealth
of Kentucky. Therefore, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
This case takes place against the backdrop of the beginning
of a union organizing campaign at Respondent’s facility, and
Respondent’s reaction thereto. The specific unfair labor prac-
tices alleged in the complaint are as follows:
1. Whether Respondent, by Marlin Smith, in a meeting with
employees at its facility on August 21, 2015, violated Section
8(a) (1) of the Act by misrepresenting employees’ statutory
rights under Section 9(a) of the Act and impliedly threatening
employees with loss of access to management if employees
became unionized?
2. Whether Respondent, by Randy Lawless, violated Section
8(a) (1) of the Act on August 24, 2015, by sending a letter to
employees misrepresenting the negotiation process and em-
ployees’ access rights to management, including employees’
right to individually adjust grievances with Respondent, if em-
ployees became unionized?
3. Whether Respondent, by Randy Lawless, Richard Mudd,
Richard Lewis and Marlin Smith, violated Section 8(a) (1) of
the Act on August 25 and 26, 2015, by misrepresenting em-
ployees’ statutory rights under Section 9(a) of the Act, and
threatening employees with a more difficult or onerous work
environment if employees voted in favor of union representa-
tion?

3 The record in this case consists of the final exhibits in this case, in-
cluding but not limited to, the stipulated facts and Jt. Exhs. A through
L. The stipulated record also references the General Counsel’s state-
ment of position (as Jt. Exh. M) and Respondent’s Statement of Posi-
tion (as Jt. Exh. O), but they are not included in the actual final exhibit
package filed as a separate attachment to the stipulated record. Rather,
the General Counsel’s statement of position (GC PS) was filed sepa-
rately on April 28, 2016, and Respondent’s statement of position (R.
PS) was filed on May 2, 2016. The joint stipulated facts also reference
the Charging Party’s position statement as Jt. Exh. O, but there is no
evidence that the Charging Party submitted one. In this decision, the
General Counsel’s brief is referred to as “GC Br.,” and Respondent’s
brief is referred to as “R. Br.”
HENDRICKSON USA, LLC 3
A. Factual Background
1. Respondent’s managers
At all material times, the following individuals held the posi-
tions opposite their names, and have been supervisors and
agents of Respondent within the meaning of Section 2(11) and
2(13) of the Act:
Randy Lawless (Lawless)—Plant Manager at Respondent’s
facility
Richard Mudd (Mudd)—Director of Operation, Truck
Division
Richard Lewis (Lewis)—Plant Human Resources Manager
2. Organizing campaign at Respondent’s facility
At all times material, the United Steel Workers of America
(the Union) engaged in a drive to organize the production and
maintenance employees at Respondent’s facility.4 Prior to the
unfair labor practices alleged in this case, and during the organ-
izing campaign, Respondent and its managers and supervisors
described above “had in their possession” a copy of a union
authorization card. (See Jt. Exh. K.) Further, during the un-
ion’s attempt to organize the production and maintenance em-
ployees at Respondent’s facility, the union and some of Re-
spondent’s employees were passing out union authorization
cards to other Hendrickson employees. (Id.)
In addition, on August 21, 2015,5 the following correspond-
ence, addressed to Lawless from the “Union Organizing Com-
mittee,” was received at Respondent’s facility, opened and read
at approximately 12 noon:
The names of people on this letter are members of a union or-
ganizing committee. We expect you to treat us the same as
any other employee working for you. It is illegal for you to
discriminate against us for because of our union sympathies.
It is also illegal for you to ask us questions about it.
(Jt. Exh. L.) The letter was signed by six individuals, including
Charging Party Pemberton, and the parties agree that it was
shown to all of the supervisors/managers set forth above prior
to any of the alleged unfair labor practices in this case. (Id.)
3. Alleged unlawful statements and presentations
by Respondent6
August 21 Meeting
On the same day, August 21, after management officials
Lawless, Smith, Mudd and Lewis received and read the letter
from the union organizing committee, Smith led a meeting for
the employees at Respondent’s facility. A recording of this
meeting was transcribed, and received as an exhibit. (Jt. Exh.
H.) During this meeting, Smith pointed out how great man-

4 No union election was held at any time relevant or with respect to
the facts and stipulations set forth in this case.
5 All dates are in 2015 unless otherwise indicated.
6 There were three instances where Respondent allegedly made
statements through managers and a PowerPoint presentation. Although
the contents of the meeting, letter and PowerPoint presentation are set
forth fully in the various noted exhibits, I am primarily addressing those
particular statements alleged to have been unlawful misrepresentations
by Respondent.
agement-employee relationships were at the facility, and ex-
tolled the value of management’s open door policy and practice
of working directly with employees to listen to and address any
of their concerns. He also talked about how Respondent’s su-
pervisors and managers knew all of their employees in the
shop, and knew what was going on with their families. Smith
then played a video, lasting about 6-½ minutes, outlining Re-
spondent’s philosophy along those lines.7 Following the video,
Smith continued to discuss the positive relationship between
Respondent and employees. For example, he mentioned how
Respondent valued employee feedback, and how “we’ve had
success in working with our employees in growing the busi-
ness, satisfying customers, keeping them happy, and bringing in
new business for the company and the heavy truck market.”
(Jt. Exh. H, p. 2.) He also reiterated Respondent’s dedication to
making sure employees have fair, competitive benefits and
wages. This was all said in the context of how great the com-
pany was without union involvement.
Then, Smith began to discuss union authorization cards, and
warned employees to “be aware be informed if anybody ever
asks you to sign anything, be aware of what you’re signing . . .
[b]ecause in a lot of cases if you sign that, you may be signing
away your rights at that point, right.” In response to a question
by Charging Party Pemberton about what kind of rights Smith
was talking about, Smith responded that:
As an example, there’s been times where, if there has been a
union drive in a facility, somebody says hey this is a sign-in
sheet just so we can all see who’s here, right? But sometimes,
if you don’t read the fine print, there might be some writing
on there—it’s happened before—where it says, by signing
this form I am authorizing XYZ to represent me with my em-
ployer. So at that point you no longer have a voice, you’ve
signed that away to some third-party, and that’s what Gary’s
[Pemberton] talking about, where we don’t want [a] third-
party to have to intervene, we want to talk directly to our em-
ployees. That’s why I’m saying, anything that you sign, you
need to read it, because, they might say, oh it’s just a sign-in
sheet we’re just gonna pass around and sign it, but somewhere
on there it says that I’m authorizing XYZ to represent me
with my employer.
(Jt. Exh. H at 19:30–20:22.) The General Counsel takes issue
with Smith telling employees that by signing a union card, they
will “no longer have a voice,” or have direct access to their
employer.
The union cards that were passed out at Respondent’s facility
included the following on one side of each card:
YES! I WANT UNITED STEELWORKERS UNION
REPRESENTATION!
I HEREBY AUTHORIZE THE
United Steel, Paper, and Forestry, Rubber, Manufacturing,
Energy, Allied
Industrial and Service Workers International Union,
AFL–CIO–CLC
(also known in short as Unite[d] Steelworkers or USW)
TO REPRESENT ME IN COLLECTIVE BARGAINING

7 The parties did not submit the video into evidence.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The other part or side of the card stated that:
This card will be used to secure Union recognition and collec-
tive bargaining rights. Initiation fees are waived for all cur-
rent employees and no dues will be paid until your first con-
tract has been accepted.
You have the absolute democratic right, protected by Federal
Law, to organize and join the United Steelworkers.
By signing this card, you are taking an important step toward
achieving a genuine voice in workplace decisions that affect
you and your family.
(Jt. Exh. K.)
August 24 Lawless letter to employees
On August 24, Lawless sent a letter to “Hendrickson em-
ployees & family.” (Jt. Exh. I.) Lawless pointed out how Re-
spondent’s facility was “experiencing an attempt at unioniza-
tion,” and how he wanted to “reaffirm Hendrickson’s position
on union representation.” He praised the employees’ contribu-
tions to the company, as well as, how well Respondent and
employees had achieved many goals by working together.
Lawless also expressed Respondent’s goal of always providing
“a workplace with benefits, opportunity, and freedoms.” He
went on to highlight and extoll all of the benefits that Respond-
ent provided its employees and their families, and to explain the
negative effects of unionizations on those benefits and the em-
ployer-employee relationship as follows:
It has always been our goal as an Employer to provide a
workplace with benefits, opportunities, and freedoms. Our
existing fringe benefits package provides coverage for the
needs of our employees and their families. Employees have
the options for medical/dental coverage through Blue Cross
Blue Shield; Company paid basic life insurance, optional sup-
plemental insurance options, disability coverage should you
become unable to work. Company funded qualified pension
plan, as well as a 401K plan with matching company contri-
butions. In addition to the core benefits, employees also are
offered a fringe benefit package including: Education Assis-
tance, Adoption Assistance, Safety Shoe Program, Safety
Glasses, Uniforms, etc.
We value our employee’s contributions and always make the
effort to recognize a job well done. Over the past several
years we have collectively achieved many goals relative to
safety and quality. Together, we have gained new business
which has led to adding on to the plant, bringing in new
equipment, and hiring more employees. These accomplish-
ments were solely due to the dedication and commitment of
our employees working together. We want to keep these
achievements going.
Some of you may feel, or have been told that Union represen-
tation will preserve job security, lead to greater benefits, or
enhanced compensation. We have studied this issue closely
and we respectfully disagree. The fact of the matter is that a
Union cannot promise you, as a valued employee of Hen-
drickson, anything. IF our plant were to be unionized, and the
collective bargaining process to begin, none of the benefits,
compensation, or job security that you currently enjoy would
be guaranteed. The Company and any recognized Union
would begin the negotiating process from scratch. Which
means all of the wages, benefits, and terms and conditions of
employment that you currently enjoy at our plant would not
be the starting point for negotiations toward a Union contract.
While it is true that we, like many other companies, have ex-
perienced many ups and downs with the current economic
picture, there are no guarantees that union representation will
secure your livelihood. We can guarantee we will do every-
thing within our power to provide quality products and ser-
vice to the industry which in turn will help secure the liveli-
hood for our employees and their families.
We also want you to understand the serious implications of
signing a Union card or petition. Under current law, your sig-
nature on a card forfeits your right to represent yourself.
There is no secret ballot election, where you get to execute
your right to vote. In fact, a union could be recognized—and
you would be required to join or be represented by it—and
you and many of your coworkers might not even know about
it until it is too late.
We believe our employees are entitled to the right to represent
themselves without third party interference. As a group we
enjoy many benefits as a Hendrickson employee, none so pre-
cious as the right to bring forth ideas, issues, and concerns that
make a difference in our business. This is why I encourage
you to understand the choice that is before you. You can
make the difference and it is imperative that you are informed
and aware of what is happening in our facility.
Hendrickson believes in its employees, and we do not feel
that we need any outside parties to help us to work together.
We have done so successfully for 100 years, and have contin-
ued to grow. We want to stay on that path, and continue to
have open discussion with you, our valued employee.
(Jt. Exh. I.) The portions of this letter at issue in this case are
where Lawless states how signing a union card will cause em-
ployees to forfeit their right to represent themselves due to third
party/union interference, and where he states that “the Compa-
ny and any recognized Union would begin the negotiating pro-
cess from scratch.” (Id.)
August 25 and 26 Power Point presentation
Finally, on August 25 and 26, Lawless, Mudd, Lewis and
Smith played a PowerPoint presentation, entitled “A Great
Place to Work,” for employees at Respondent’s facility. This
presentation set forth the reasons why employees believed Re-
spondent’s facility was a great place to work; highlighted
(again) the virtues of Respondent as an employer and value of
direct employer-employee relationships (without the union);
and related how Respondent and employees benefited from
their relationship building experiences. However, Respondent
also addressed numerous negative characteristics of unions, and
negative consequences for employees and their families if they
signed union cards and selected unionization. Respondent
HENDRICKSON USA, LLC 5
clearly sent a message in this presentation that many of the
benefits and the working relationships enjoyed, including Re-
spondent being responsive to many employee ideas, issues and
concerns, would end with unionization. In summary, the
presentation set forth the following additional examples of what
would be lost with a union: “[l]oss of our direct relationship,”
“you’ll be giving up your right to speak for and represent your-
self,” “the culture will definitely change,” “relationships suf-
fer,” and “flexibility is replaced by inefficiency.” (Jt. Exh. J.)8
In the bullet points under “[t]he culture will definitely
change,” Respondent told employees that: they would lose their
right to speak for and represent themselves; every change to
wages, hours and working conditions would require negotia-
tions “controlled by the union—not you;” and that it would
“cost [them] money.” Further, throughout the PowerPoint
presentation, Respondent set out numerous ways that bringing
in a union would cost employees money, such as the high cost
of mandatory union dues, loss of wages and benefits through
contract negotiations or strike and potential lay-offs or job loss
if there was a strike. (Id.)
III. DISCUSSION AND ANALYSIS
A. Legal Standards
Pursuant to Section 8(c) of the Act, “[t]he expressing of any
views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any
of the provisions of this Act [subchapter], if such expression
contains no threat of reprisal or force or promise of benefit.”
(29 U.S.C. § 158 (c)). The Supreme Court has determined that
Section 8(c) “merely implements” an employer’s “First
Amendment” rights. However, the Court further held that the
“precise scope of employer expression . . . must be made in the
context of its labor relations setting,” and that therefore, “an
employer’s rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are embodied in
[Section] 7 and protected by [Section] 8(a)(1) and the proviso
to [Section] 8(c).” See NLRB v. Gissel Packing Co., 395 U.S.
575, 617–618 (1969).
Generally, the Board’s standard in assessing whether a re-
mark constitutes a threat is “whether the remark can reasonably
be interpreted by the employee as a threat,” and therefore, is an
objective standard or inquiry under Section 8(a)(1) which ex-
amines whether the employer’s actions would tend to coerce a
reasonable employee. Smithers Tire & Auto Testing of Texas,
Inc., 308 NLRB 72 (1992); see also Wyman-Gordon Co. v.
NLRB, 654 F.2d 134, 145 (1st Cir. 1981). Further, the ques-
tionable threats “need not be explicit if the language used by
the employer or his representative can reasonably be construed
as threatening.” NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49
(9th Cir. 1970). Therefore, the Board considers the totality of
the circumstances in assessing an implicit or ambiguous threat
to coerce. KSM Industries, Inc., 336 NLRB 133, 133 (2001).
The Supreme Court has also held that an employer may even

8 See also PowerPoint presentation slides entitled “How would you
be affected?;” “Negative Consequences of card signing;” and “The
culture will definitely change.” (Jt. Exh. J.)
make predictions regarding the effects that it believes unioniza-
tion will have on its business and employees. However, in
doing so, “the prediction must be carefully phrased on the basis
of objective fact to convey an employer’s belief as to demon-
strably probable consequences beyond his control.” NLRB v.
Gissel Packing Co., supra at 618,9 citing Textile Workers v.
Darlington Mfg. Co., 380 U.S. 263, 274, fn. 20 (1965); see
also, National Propane Partners, L.P., 337 NLRB 1006, 1017
(2002). Therefore, an employer need not remain neutral during
a union campaign, and may ensure that employees are fully
informed about their choice. However, there must be a show-
ing of objective facts on which to support the reasonable belief
or prediction of such effects of unionization (beyond the em-
ployer’s control). Otherwise, it is an impermissible threat of
retaliation based on misrepresentation and coercion (and as
such, loses the protection of the First Amendment). Id. at 618,
619, citing NLRB v. River Togs, Inc., 382 F.2d 198, 202 (2nd.
Cir. 1967); see also, Steam Press Holdings, Inc. v. Hawaii
Teamsters, 302 F.3d 998 (9th Cir. 2002)).
Respondent contends that its talks, letter and Power Point
presentation were all protected by Section 8(c), while the Gen-
eral Counsel asserts that Respondent has crossed the line with
some of its statements, and interfered with employees’ Section
7 rights. The General Counsel argues that Respondent’s vari-
ous messages to employees, issued immediately after Respond-
ent learned of the union organizing campaign, not only misrep-
resented employees’ statutory rights, but did so in a manner
such that they became unlawful threats to curtail employees’
rights and discontinue their benefits. After a review of the
communications alleged to have been objectionable in this case,
all issued to employees between August 21 and 26, I find that
some, but not all, rose to the level of unlawful threats made in
violation of Section 8(a)(1) of the Act. In doing so, I have
evaluated the language and alleged misrepresentations, in the
context used by Respondent, in order to determine whether they
could have reasonably been construed as threatening.
Respondent asserts Section 8(c) as a defense to the unfair la-
bor practice charge of unlawful threats or coercion. Respond-
ent also relies on Board precedent in Tri-Cast, Inc., 274 NLRB
377 (1985), which the Board has since referred to as the Tri-
Cast doctrine.
In Tri-Cast, the employer sent a letter stating in part, “2. We
have been able to work on an informal and person-to-person
basis. If the union comes in this will change. We will have to
run things by the book, with a stranger, and will not be able to
handle personal requests as we have been doing.” (Id.) The
regional director determined that these statements misrepre-
sented employee rights under the proviso of Section 9(a) of the

9 Gissel Packing Co., supra, involved several underlying cases, one
of which involved an employer (Sinclair) threatening employees that it
would probably have to close its plant for economic reasons if unioni-
zation occurred. The Supreme Court found that Sinclair’s communica-
tion of its sincere belief to employees, that unionization would or might
result in economic decline and plant closing, was an impermissible
statement of fact “‘unless, which [was] most improbable, the eventuali-
ty of closing [was] capable of proof.’” Gissel Packing Co., supra at
618–619, citing (underlying case) NLRB v. Sinclair Co., 397 F.2d 157,
160 (1968).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act, which allows “any individual employee or group of em-
ployees” to “have the right at any time to present grievances to
their employer and to have such grievances adjusted, without
the intervention of the bargaining representative,” provided that
the adjustment is consistent with collective-bargaining agree-
ment terms, and provided that “the bargaining representative
has been given opportunity to be present at such adjustment.”
Tri-Cast, supra at fn. 3, quoting Section 9(a) of the Act and its
proviso.10 The Board disagreed that the employer “threatened
to withdraw rights preserved by Section 9(a),” stating that “the
Employer’s statement, crafted in layman’s terms, simply expli-
cates one of the changes which occur between employers and
employees when a statutory representative is selected.” The
Board found that there was “no threat, either explicit or implic-
it, in a statement which explains to employees that, when they
select a union to represent them, the relationship that existed
between the employees and the employer will not be as before.”
(Id. at 377.) The Board explained that this was especially the
case where, “as implied in the Employer’s statement here,
where a collective-bargaining agreement is negotiated.” (Id.)
In further explanation of its rationale, the Board pointed to the
Ninth Circuit’s observation that union representation resulting
in a union shop steward dealing directly with the employer is a
“‘fact of industrial life.’” 274 NLRB at 377, quoting NLRB v.
Sacramento Clinical Laboratory, Inc., 623 F.2d 110, 112 (9th
Cir. 1980). In determining that the regional director’s “objec-
tionable misrepresentation” could not stand, the Board relied on
Midland National Life Insurance Co., 263 NLRB 127, 133
(1982), where it previously stated that it would “‘no longer
probe into the truth or falsity of the parties’ campaign state-
ments, and . . . will not set elections aside on the basis of mis-
leading campaign statements.”11 Finally, based on those find-
ings, the Board concluded that it would not reverse the election
results even if the employer’s message was “read to have mis-
represented employee rights.” 274 NLRB at 378.
Contrary to Respondent’s position, the General Counsel ap-
pears to insist that Tri-Cast is inapplicable, or in the alternative,
that the Board should reverse or somehow restrict its applica-
tion in these types of cases. In In Re Dish Network, the Board
affirmed the administrative law judge’s decision that the em-
ployer did not violate Section 8(a)(1) of the Act when it told its
employees that if the workplace became unionized, they would
have to go to their union steward with any of their complaints,
rather than their employer, and that the union controlled their
fate, “not you.” In Re Dish Network Corp., 358 NLRB 174,
174–175 (2012). The Board declined to take up the matter of
revisiting what it called the Tri-Cast doctrine. Member Block
concurred (in part) with the doctrine’s application, but favored

10 Sec. 9(a) of the Act mandates that “[r]epresentatives designated or
selected . . . by a majority of the employees in a unit appropriate for”
collective-bargaining purposes, “shall be the exclusive representatives
of all employees in such unit” for such purposes regarding pay rates,
wages and other conditions of employment.
11 The Board in Midland National Life Insurance Co. also stated
that, “we will continue to protect against other campaign conduct, such
as threats, promises, or the like, which interferes with employee free
choice.” Midland National Life Insurance Co., 263 NLRB at 133.
the Board reexamining the Tri-Cast doctrine “in an appropriate
future case.” (Id.)12
I have read and considered the parties’ arguments for and
against reversing or narrowing the Tri-Cast doctrine, along with
their evaluations of the evolution of Board law leading to the
doctrine. However, as the Board still has not revisited and re-
versed the Tri-Cast doctrine, I am bound to adhere to the find-
ings in Tri-Cast until either the Board or the Supreme Court
specifically overturns them. Pathmark Stores, Inc., 342 NLRB
378 fn. 1 (2004); Herbert Industrial Insulation Corp., 312
NLRB 602, 608 (1993); Waco, Inc., 273 NLRB 746, 749 fn. 14
(1984) (“it is a judge’s duty to apply established Board prece-
dent which the Supreme Court has not reversed,” and “for the
Board, not the judge, to determine whether precedent should be
varied.”) (citation omitted). Los Angeles New Hospital, 244
NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir.
1981). Therefore, I will apply Tri-Cast as it stands.13
B. Respondent’s Messages Regarding Loss of Direct Relation-
ship Between Employees and Employers Do Not Violate the Act
There is no doubt in this case that between August 21 and
26, Respondent’s managers began its antiunion campaign.14
The General Counsel first argues that the following statements
misrepresented employees’ statutory rights: (1) in reference to
signing the union authorization cards, Smith told employees in
the August 21 meeting that “at that point you no longer have a
voice, you’ve signed that away to some third party;” (2) in the
August 24 letter, Lawless informed employees that “under cur-
rent law, your signature on a card forfeits your right to repre-
sent yourself;” and (3) through its August 25 and 26 Power-
Point presentation, Hendrickson management informed em-
ployees that by supporting and/or voting for the union, “you’ll
be giving up your right to speak for and represent yourself,”
and that supporting the union would result in “loss of our direct
employee relationship.” The General Counsel further argues
that these statements impliedly or otherwise threatened loss of
employees’ access to management with unionization.15 (See
GC Br.)
The General Counsel argues that the proviso to Section 9(a)
of the Act “refutes any claim that an employee loses the right to
individually adjust a grievance with an employer as a result of
signing an authorization card” because the proviso gives em-
ployees “the right at any time to present grievances to their

12 See In Re Dish Network, Corp., 358 NLRB 229 (2012) (the Board
denied the union’s motion to reconsider its initial decision in In Re Dish
Network, Corp., 358 NLRB 174, supra, but confirmed its authority to
revisit the Tri-Cast doctrine in an appropriate future case).
13 In other words, I will leave it up to the Board to determine if this
is an appropriate case in which to revisit and reexamine the Tri-Cast
doctrine.
14 Hendrickson managers began bombarding employees with its an-
tiunion messages beginning on Friday, August 21, and resuming on
Monday, August 24 through Wednesday, August 26. (See 2015 calen-
dar.)
15 In its brief, Respondent argues that since the General Counsel
failed to specifically mention that each of the allegedly unlawful state-
ments constituted a threat, they are protected by Section 8(c) of the Act,
and therefore not in violation of the Act. I reject this argument, and
address it later in this decision.
HENDRICKSON USA, LLC 7
employer and to have such grievances adjusted, without the
intervention of the bargaining representative.” The General
Counsel asserts, therefore, that pursuant to Gissel, Respondent
did not have sufficient objective facts on which to base its be-
lief that the Union’s presence would result in employees’ ina-
bility to communicate directly with Respondent. (See GC Br.
at 5–6.) However, one cannot ignore the remaining part of this
proviso, which conditions such right on the employees and/or
the employer providing the bargaining representative or union
the opportunity to be present during any such adjustment.
As stated above, I agree with Respondent that Tri-Cast, 274
NLRB 377 (1985), is controlling on this issue of whether Re-
spondent unlawfully told employees (through various state-
ments) that they would lose their voice and forfeit their right to
represent themselves and bring their complaints directly to
management if they brought the Union into the plant. See
Gunderson Rail Serv., 364 NLRB No. 30 fn. 1 (2016) (Board
recently found that Tri-Cast is extant law, and affirmed the
judge’s dismissal of the allegation that the employer unlawfully
told employees that if they selected the union they would no
longer be able to complain directly to management).
Thus, as the Board pointed out in Tri-Cast, when employees
are represented, their bargaining representatives deal directly
with their employers through a shop steward, and it is simply
fact that the direct relationship that existed before unionization
no longer exists. I must find, therefore, even considering the
General Counsel’s argument and reliance on Gissel, that Re-
spondent’s messages to employees in this regard do not consti-
tute unlawful threats. I also find that the General Counsel’s
attempt to distinguish this case from Tri-Cast fails. The Gen-
eral Counsel argues that unlike the ones in Tri-Cast, Respond-
ent’s statements in this case, “intimated that all employee ac-
cess to Respondent would be denied in the event that the em-
ployee signs a [union] card.” (GC Br. at 6.) There is simply no
such distinction found as to take this case out of the purview of
the Tri-Cast doctrine. Accordingly, I dismiss the complaint
allegations in paragraphs 4 and 5 that claim that Respondent
misrepresented employees’ statutory rights under Section 9(a)
of the Act and impliedly (or otherwise) threatened them with
loss of access to management and loss of the right to individu-
ally adjust their grievances with Respondent if the plant became
unionized.
C. Respondent Violated the Act When it Told Employees That
Voting for the Union Would Result in Bargaining From Scratch
Next, the General Counsel takes issue with the portion of
Lawless’ August 24 letter to employees that stated that, “[t]he
Company and any recognized Union would begin the negotiat-
ing process from scratch. Which means all of the wages, bene-
fits, and terms and conditions of employment that you currently
enjoy at our plant would not be the starting point for negotia-
tions toward a Union contract.” (Jt. Exh. I.)
Although the Board has long considered such statements
during the union organizing process, and determined that they
are not a per se violation of the Act, it has found that in the
proper context, they are in violation of the Act. In Taylor-Dunn
Mfg. Co., 252 NLRB 799, 800 (1980), enfd. mem. 679 F.2d
900 (9th Cir. 1982), the employer explained to employees that
with the union, they would have to bargain wages “‘from min-
imum wage up,’” and that they would not have benefits “‘until
you have a contract signed. So actually you start with nothing
until you actually had a contract that was okayed and voted in
and the whole bit.’”16 The Board, overturning the judge’s find-
ing of no violation, stated that
It is well established that ‘bargaining from ground zero’ or
‘bargaining from scratch’ statements by employer representa-
tives violate Section 8(a)(1) of the Act if, in context, they rea-
sonably could be understood by employees as a threat of loss
of existing benefits and leave employees with the impression
that what they may ultimately receive depends upon what the
union can induce the employer to restore. On the other hand,
such statements do not constitute a violation when the em-
ployer’s other communications make it clear that any reduc-
tion in wages or benefits will occur only as a result of the
normal give and take of negotiations.
Taylor-Dunn, supra, citing TRW United Greenfield Division,
245 NLRB 1135 (1979); Stumpf Motor Co., Inc., 208 NLRB
431 (1974); BP Amoco Chemical, 351 NLRB 614, 617–618
(2007) (statements regarding loss of existing benefits are evalu-
ated in terms of whether they are more reasonably construed as
a result of union selection versus a “possible outcome of good-
faith bargaining”). The Board found that the remarks “clearly
conveyed to employees a threat of loss of existing benefits,”
and that they were not accompanied by any assurances to em-
ployees “that such losses, if any, would be the result of the
normal give and take of collective bargaining and not of em-
ployer retaliation.” (Id.)
In Coach & Equipment Sales Corp., 228 NLRB 440, 440–
441 (1977), the Board disagreed with the Administrative Law
Judge’s finding that statements that the employer would bar-
gain from scratch as to wages and benefits, start at the mini-
mum wage level and in no event go above what the employees
were earning, were “nonthreatening and privileged under Sec-
tion 8 (c) and were therefore not violative of Section 8(a)(1) of
the Act.” In doing so, the Board stated that “‘bargaining from
scratch’ is such a dangerous phrase which carries within it the
seed of a threat that the employer will become punitively in-
transient in the event the union wins the election.” It empha-
sized that when such a statement can be reasonably read in the
context of a threat to either end existing benefits prior to bar-
gaining or to “adopt a regressive bargaining posture designed to
force a reduction of existing benefits for the purpose of penaliz-
ing the employees” for selecting the union, it will find a viola-
tion. However, the Board pointed out that when the “clearly
articulated thrust” of such statement “is that the mere designa-
tion of a union will not automatically secure increases in wages
and benefits, and that all such items are subject to bargaining,
no violation will be found.” (Id.) The Board stressed that
“presence of contemporaneous threats or unfair labor practices
is often a critical factor in determining whether there is a

16 The Administrative Law Judge found that the remarks, “while a
technical violation of Section 8(a)(1), were ‘so innocuous and so readi-
ly comprehended and categorized as such by the leadmen . . . as to
warrant no remedial action.’” Taylor-Dunn, supra, at 800.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatening color to the employer’s remarks,” and concluded
that the employer’s statements, taken together, constituted a
threat in violation of the Act. (Id.) In other words, the Board
determined that the objectionable words went beyond a warn-
ing, and communicated to employees the employer’s intent to
make sure that unionization would not result in increased bene-
fits or wages. (Id.)
Here, I find that Respondent, through its message to its em-
ployees in Lawless’ August 24 letter, conveyed that if employ-
ees authorized a union at its facility, they would lose their cur-
rent wages and benefits. I find it particularly telling that Law-
less premised this message with a reminder to employees of all
the specific benefits that they and their families enjoyed with-
out the union. He also expressed Respondent’s disagreement
with any claim that a union would bring job security, better
benefits or increased compensation. Rather, he told employees
that “[t]he fact of the matter is that a Union cannot promise
you, as a valued employee of Hendrickson, anything.” (Jt. Exh.
I.) He clearly stated that “[t]he Company and any recognized
Union would begin the negotiating process from scratch.” (Id.)
Lawless did not articulate that unionization would not “auto-
matically secure” increased wages and better benefits or that
such would require good faith negotiation between Respondent
and the Union. Instead, Lawless assured employees that they
would begin bargaining with nothing, and guaranteed that Re-
spondent, at the start of any bargaining with a union, would
only do what it could to make the best quality products (not
bargain in good faith). Moreover, I point out here that there is
no rule or obligation that collective-bargaining negotiations
must begin from scratch or zero, or that it is beyond an employ-
er’s control to start bargaining at any point (from slightly below
or even at the current level of benefits and wages).
I find that these questionable statements constituted a threat
and essential guarantee by Respondent that by bringing in the
Union, all negotiations for wages and benefits would start at
zero. There was no promise or assertion that such would come
about as a “possible outcome of good-faith bargaining,” or
would result from the normal give and take of bargaining. BP
Amoco Chemical, supra at 617; see also, Pier Sixty, LLC, 362
NLRB No. 59, 19–20 (2015). Nor do I see evidence or find
that employees would have reasonably believed there to have
been such an assertion (or interpreted the same). Moreover,
these statements, prefaced by all they enjoyed without the Un-
ion, essentially promised that employees would lose some of
their benefits and earnings as a result of any bargaining be-
tween Respondent and the Union. Therefore, I find that such
statements could reasonably be understood by employees to be
a threat of loss of their existing wages and benefits. See Tay-
lor-Dunn, supra at 800; Capitol EMI Music, Inc., 311 NLRB
997, 1008 (1993); Lear-Siegler Management Service, 306
NLRB 393 (1992). See also, Smithers Tire & Auto Testing of
Tex., supra.
In its brief, Respondent argues that since the General Coun-
sel did not specifically allege any threat in connection with
statements made by Lawless in his August 24 letter to employ-
ees, the absence of such allegation leaves that letter “subject to
the full protection of Section 8(c).” Therefore, Respondent
claims that those views in the letter do not violate the Act be-
cause there was no “accompanying ‘. . . threat of reprisal or
force or promise of benefit.’” (R. Br. at 18, quoting 29 U.S.C.
§ 158(c)). Respondent further argues that Board law establish-
es that during union organizing drives, misstatements or mis-
representations of law and fact are not violative of the Act.
Respondent relies on Midland National Insurance Co., supra,
and Furr’s Inc., 265 NLRB 1300 fn.10 (1982), in support of the
latter contention. Finally, in a footnote, Respondent states that
“[i]t is highly debatable whether this particular allegation is
even part and parcel of Mr. Pemberton’s” charge since the
charge, “on its face, states that the alleged ‘intimidating’ and
‘threatening’ conduct violative of [Section 8(a)(1)] first began
on ‘August 25, 2015,’” while Lawless’ letter was written and
sent on August 24. (R. Br. fn. 13; Jt. Stip.; Jt. Exh. A.)
It is true that the charge alleges that the first violation began
on August 25. However, the complaint alleges in complaint
paragraph 5 that on “[a]bout August 24, 2015, Respondent, by
Randy Lawless, sent a letter to employees . . . which misrepre-
sented the negotiation process and employees’ access rights to
management, including their right to individually adjust their
grievances with Respondent, if they became a unionized facili-
ty.” In addition, the complaint alleges that by the conduct de-
scribed in paragraph 5 (along with that described in paragraphs
4 and 6 pertaining to Smith’s talk on August 21 and the Power-
Point presentations on August 25 and 26) Respondent “has
been interfering with, restraining, and coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) of the Act.” (Jt. Exh. C, pars. 4–7.)
Further, in the General Counsel’s statement of position, he
clarified his position that “Respondent misrepresented employ-
ees’ statutory rights by threatening more difficult or onerous
workplace conditions through a series of statements.” Those
statements included the one set forth in Lawless’ August 24
letter that, “the Company and any recognized Union would
begin the negotiating process from scratch.” Moreover, the
General Counsel asserted these allegations (as part of misrepre-
sentations that rose to the level of threats) in his brief, and Re-
spondent, anticipating them, addressed them in its brief.
A complaint is not restricted, however, to the precise allega-
tions of the charge. Rather, it may also allege matters related to
and growing out of the charged conduct. NLRB v. Fant Milling
Co., 360 U.S. 301, 309 (1959). I point to the Board’s relevant
test set forth in Redd-I, Inc., 290 NLRB 1115 (1988), that:
If a charge was filed and served within six months after the
violation alleged in the charge, the complaint…, although
filed after the six months, may allege violations not alleged in
the charge if (a) they are closely related to the violations
named in the charge, and (b) occurred within six months be-
fore the filing of the charge.
(Id. at 1116), quoting with approval NLRB v. Dinion Coil Co.,
201 F.2d 484, 491 (2nd Cir. 1952). In evaluating whether alle-
gations are “closely related” under Redd-I, the Board considers
the following: (1) whether the untimely allegation and timely
charge involve the same legal theory; (2) whether the untimely
allegation and the timely one arise from the same factual cir-
cumstances or sequence of events; and (3) whether the same or
similar defenses would be raised in response to both allega-
HENDRICKSON USA, LLC 9
tions. See Nickles Bakery of Indiana, Inc., 296 NLRB 927,
927–928 (1989). These factors do not require that the allega-
tions involve the same section of the Act, and the relevant ques-
tion under the third factor is whether both allegations allege the
same unlawful object. (Id. at fn. 5 and 6.) In that same vein,
and relevant to this case, the Board has found that a sufficient
nexus exists when the disputed and existing charges or allega-
tions “occurred within the same general time period and con-
cern conduct which constitutes an overall plan to resist the
Union.” See Well-Bred Loaf, Inc., 303 NLRB 1016 fn. 1
(1991); Kentucky Tennessee Clay Co., 343 NLRB 931, 932
(2004).
There is no doubt that the “bargaining from scratch allega-
tion,” not set out in the charge or specifically mentioned in the
complaint, is closely related to the violations named in the
charge. Nor is there any dispute that the August 24 letter was
sent, or the August 21 speech occurred, within the 6 months
before the filing of the charge in this case. The allegations in
the General Counsel’s position statement and brief involve the
same legal theories, arise out of the same factual circumstances
and sequence of events around Respondent’s antiunion organiz-
ing drive and are subject to the same or similar defenses. In
other words, the allegations questioned in Respondent’s brief—
whether or not certain statements in Lawless’ August 24 letter
not only misrepresented employees’ rights under the Act, but
also constituted a threat—were sufficiently related to the charge
and complaint allegations. Finally, as Respondent claims, in
order for me to assess whether or not an alleged remark or mis-
representation constitutes an unlawful threat, I must determine
“whether the remark can reasonably be interpreted by the em-
ployee as a threat.” Smithers Tire & Auto. Testing of Tex.,
supra. I have determined that the remarks here can be inter-
preted as such.
Accordingly, I find that Respondent’s statement, that bar-
gaining would start from scratch, not only misrepresented the
negotiation process, but also constituted a threat in violation of
the Act.
D. Respondent Violated the Act When it Threatened a Diffi-
cult/Onerous Work Environment
Finally, the General Counsel argues that Respondent further
misrepresented employees’ statutory rights and threatened more
difficult or onerous work conditions through its statements in
the PowerPoint presentation. The General Counsel specifically
questions the following of Respondent’s promised consequenc-
es if employees selected the Union: “you’ll be giving up your
right to speak for and represent yourself,” “loss of our direct
employee relationship,” “the culture will definitely change,”
“relationships suffer,” and “flexibility is replaced by inefficien-
cy.” In this regard, the General Counsel believes that taken
together, these statements/communications to employees “fore-
cast a more difficult work environment that is neither ‘demon-
strably probable’ nor beyond the Employer’s control.” (GC PS,
citing Gissel, supra). I agree, but only as to the last three
statements. In doing so, I viewed them in the total context in
which they were presented, along with the unlawful “bargain-
ing from scratch” promise, in order to determine whether they
would be reasonably interpreted as threats.
I find that Respondent clearly promises that the culture will
change, relationships with coworkers will suffer and all flexi-
bility enjoyed by employees will be replaced with inefficiency.
In fact, Respondent indicates with certainty that it would no
longer respond to employee concerns or issues, no matter what
they might be, and that employees would lose control over
every aspect of their work lives. This goes beyond the permis-
sible communication that unionization will bring about a
change in the direct relationship between management and
employees. I agree with the General Counsel that these decla-
rations to employees did not meet the standard set forth in Gis-
sell, in that they were not rooted in, or “carefully phrased on the
basis of,” objective fact in order to get across Respondent’s
“belief as to demonstrably probable consequences beyond [its]
control.” NLRB v. Gissel Packing Co., supra at 618.
As stated above, Respondent would have control over how it
began contract negotiations with a union. Further, there is no
basis in objective fact to believe that the relationship between
employees and their coworkers would suffer so greatly such
that all flexibility would be lost and the culture would change.
Moreover, there is no evidence that potential unionization
would sound a death knell for Respondent’s ability to be re-
sponsive to any of its employees’ issues and concerns. This
implies that Respondent might not or would not be responsive
to these concerns even through negotiations with a union. I
find that Respondent ignores the fact that although they may
not be at the negotiation table, union members most often have
a say in developing bargaining proposals concerning their wag-
es and benefits and other working conditions. In other words,
there is no basis on which to believe that employees would
have no say, whatsoever, in their working conditions. I find
that employees would reasonably believe, based on Respond-
ent’s statements, that with the Union, they would lose many of
their benefits, experience decreased pay, lose all flexibility they
might have in navigating day-to-day work conditions and for-
feit any flexibility in terms and conditions of employment they
might enjoy (e.g., scheduling flexibility, time and attendance
requests, etc.). In other words, they would reasonably believe
that all aspects of their work environment would completely
deteriorate.
I have considered Respondent’s argument that when re-
viewed in full context, the PowerPoint presentation did not
misrepresent employees’ statutory rights or constitute a threat.
In making these arguments, Respondent points to the following
particular slides, or rather bullet points on certain slides, which
it “presumes” the General Counsel is concerned about:
Why Direct Relationships? [heading p. 3]
• The need for employees to turn to a third party is
eliminated [p. 3]
• We have an open door policy- just come in and
talk to anyone, even your GM [p. 7]
• You lose your right to represent yourself [by sign-
ing a union card authorizing a union ‘to represent
me in all negotiations of wages, hours, and work-
ing conditions in accordance with the NLRB’]. [pp.
17]
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
How would you be affected [if the union won
its campaign]? [p. 18]
• Loss of our Direct Employee Relationship. [p. 18]
• Wages, benefits, and all working conditions are
up for negotiation [p. 18]
The culture will definitely change! [p. 40]
• You’ll be giving up your right to speak for and
represent yourself. [p. 40]
• Every change to wages, hours, and working
conditions requires negotiations controlled by the
union – not you. [p. 40]
(Jt. Exh. J, pp. 3, 7, 17, 18, 40.) I have already addressed
Respondent’s statements to employees regarding how union-
ization will affect the direct relationship between Respond-
ent and employees, and found that they do not violate the
Act.
However, as to other statements reflected here and above,
I find when taken into overall context, they represent more
than a threat of the loss of the employer-employee negotia-
tion relationship. Although I recognize that the PowerPoint
presentation truthfully mentions that wages, benefits and
working conditions are up for negotiation; I cannot ignore
that it also states that “Every change to wages, hours, and
working conditions requires negotiations controlled by the
union — not you.” (Jt. Exh. J, p. 40.) The latter comment,
and the other statements discussed above (such as “bargain-
ing from scratch” with the disappearance of all the wages
and benefits and working conditions enjoyed without a un-
ion), threaten that employees will lose benefits and wages;
any voice at all in the bargaining process; and the collapse of
their working conditions and relationships with their
coworkers. I find that Respondent cannot cherry pick from
its representations to its employees, and ignore those com-
ments and statements which I have found, taken together,
constitute unlawful threats.
I conclude these statements, along with the message that any
negotiations would start from scratch, threaten a more difficult
and onerous work environment and loss of wages and benefits,
and therefore violate Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Hendrickson USA, LLC, is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. By threatening its employees with loss of current wages
and benefits by informing them that the negotiating process
would start from scratch in the event that they authorized the
Union, Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
3. By threatening its employees with a more difficult or on-
erous work environment by telling them that the culture would
definitely change, all relationships would suffer and flexibility
would be replaced with inefficiency, in the event that they au-
thorize the Union, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
4. By the conduct described above, the Respondent has in-
terfered with, restrained and coerced its employees in the exer-
cise of their rights guaranteed in Section 7 of the Act and has
thereby engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. Respondent has not violated the Act by misrepresenting
employees’ statutory rights under Section 9(a) of the Act and/or
impliedly threatening employees with a loss of access to man-
agement and loss of the right to individually adjust their griev-
ances with Respondent if they authorized the union. Therefore,
this allegation is dismissed.
REMEDY
Having found that the Respondent has violated the Act by
threatening its employees with loss of wages and benefits by
informing them that the negotiating process would begin from
scratch, and threatening them with a more difficult or onerous
work environment by telling them that the culture would defi-
nitely change, all relationships would suffer and flexibility
would be replaced with inefficiency, in the event that they au-
thorize the Union, I shall recommend that Respondent be or-
dered to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The Respondent, Hendrickson USA, LLC, Lebanon, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of wages and bene-
fits by informing them that the negotiation process would begin
from scratch in the event that they authorize the Union.
(b) Threatening its employees with a more difficult or oner-
ous work environment by telling them that the culture would
definitely change, all relationships would suffer and flexibility
would be replaced with inefficiency, in the event that they au-
thorize the Union.
(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 after service by the Region, post at its
Lebanon, Kentucky facility copies of the attached notice
marked “Appendix.” 18 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
18 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.”
HENDRICKSON USA, LLC 11
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since August 21, 2015.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. October 31, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT threaten employees with loss of wages and
benefits by informing them that the negotiating process would
begin from scratch in the event that they authorize the Union.
WE WILL NOT threaten employees with a more difficult or
onerous work environment by telling them that the culture
would definitely change, all relationships would suffer and
flexibility would be replaced with inefficiency, in the event that
they authorize the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
HENDRICKSON USA, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-159641 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.