State Materials

National Labor Relations Board - Board Decisions

Aug 31, 1999

328 N.L.R.B. 1317 (N.L.R.B. 1999)

STATE MATERIALS, INC. 1317
State Materials, Inc. and Teamsters Local 377 a/w
International Brotherhood of Teamsters, AFL–
CIO. Cases 8–CA–28582 and 8–RC–15431
August 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 17, 1997, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Charging
Party Union filed an answering brief to the Respondent’s
exceptions, and the Respondent filed a reply brief.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 record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions as
modified below3 and to adopt the recommended Order as
modified.
1. In adopting the judge’s recommendation, based on
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), that a
bargaining order is warranted in this case, we find it un-
necessary to pass on the judge’s finding that the Respon-
dent’s unfair labor practices fall within Gissel category
one—those so outrageous and pervasive that a bargain-
ing order might be justified even without “inquiry into
majority status on the basis of cards or otherwise.” Id. at
613. We find that this case clearly falls within the sec-
ond category comprising “less extraordinary cases
marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes.” Id. at 614. We
stress that beginning immediately after the organizing
campaign commenced, the Respondent, through its man-
ager and co-owner, Tony Bucci, committed numerous
and pervasive unfair labor practices, including such
“hallmark” violations as discharging five employees for
their union or protected concerted activities and threaten-
ing virtually all the employees with discharge and clo-
sure of the business if they supported the Union. The
discharges and threats are highly coercive violations di-
rected by a top management official against employees
working in a relatively small unit of only approximately
33 employees. The threats of job loss followed by the
discriminatory discharges demonstrated to the unit em-
ployees the Respondent’s willingness to carry out its
threats and brought home to employees that the penalty
for union support would be severe. As the judge cor-
rectly noted, these are among the most flagrant of unfair
labor practices that can be committed during an organiz-
ing campaign and are of a type that are likely to have a
lasting inhibiting effect that renders unlikely the holding
of a fair election.

1 Although we deny the Respondent’s motion in its reply brief to
strike portions of the Union’s answering brief, we have disregarded
certain derogatory characterizations of the manner in which the Re-
spondent conducts its business that, as the Respondent has pointed out,
the Union made in its brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We also find without merit the Respondent’s allegations of bias on
the part of the administrative law judge. After full consideration of the
record and the judge’s decision, we perceive no evidence that the judge
made prejudicial rulings or demonstrated bias against the Respondent.
3 In adopting the judge’s findings that Bucci threatened plant closure
and promised a wage increase at a campaign meeting that employee
Kevin L. Lane attended in October 1996, we place no reliance on the
judge’s finding that a meeting occurred on October 11, because it ap-
pears from the record that Lane was not present at work that day. We
note, however, that Lane did attend several other campaign meetings
that the Respondent held about this time in October during which Bucci
made unlawful statements to assembled groups of employees.
We reject the Respondent’s argument that employee
turnover and the passage of time since these unfair labor
practices took place render the bargaining order inappro-
priate. While we recognize that some courts are of the
view that the passage of time between a Gissel order and
the unfair labor practices that justified it, and any inter-
vening turnover of employees or management, must be
taken into account in assessing the propriety of such an
order,4 the Board consistently has held that the validity of
a bargaining order depends on an evaluation of the situa-
tion as of the time the unfair labor practices were com-
mitted, and that to hold otherwise would reward rather
than deter unlawful conduct by employers during orga-
nizing campaigns. See, e.g., Highland Plastics, Inc.,
256 NLRB 146 (1981), and cases cited therein. Al-
though we continue to adhere to that view, we note that
even if we were to take these factors into account, we
would still find a bargaining order to be appropriate in
the circumstances here.
In that regard, we note that Bucci, who committed vir-
tually all the unfair labor practices, continues to serve as
the top management official at the Respondent’s facility.
Bucci’s involvement in the unlawful conduct shows that
the Respondent is deeply committed to its antiunion posi-
tion, a commitment from which is it not likely to retreat.
His continuing presence on the scene can serve only to
reinforce in the minds of the employees the lingering
effects of the Respondent’s violations. As for the al-
leged employee turnover, we note that a substantial
number of unit employees who were employed at the
time of the unfair labor practices remain in the Respon-
dent’s employ, and that they—along with the five dis-
criminatees whom we are ordering the Respondent to
reinstate—will likely convey to any new employees what
4 See, e.g., Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1173
(D.C. Cir. 1998).
328 NLRB No. 184
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
transpired during the organizing campaign that led up to
the 1996 election. As the Fifth Circuit has observed,
“Practices may live on in the lore of the shop and con-
tinue to repress employee sentiment long after most, or
even all original participants have departed.” Bandag,
Inc., 583 F.2d 765, 772 (5th Cir. 1978). We note in ad-
dition that much of the turnover that has occurred is at-
tributable to the Respondent’s own unlawful discharge of
five unit employees. The Respondent can hardly argue
that employee turnover created by its own unfair labor
practices precludes an otherwise appropriate bargaining
order. NLRB v. Balsam Village Management Co., 792
F.2d 29, 34 (2d Cir. 1986), cert. denied 479 U.S. 931
(1986).
In concluding that a Gissel order is warranted, both
under circumstances existing at the time the unfair labor
practices were committed and taking into account other,
subsequently occurring events as urged by the Respon-
dent, we have also fully considered the impact of our
order on the affected employees’ Section 7 rights, as fol-
lows: In Gissel, the Supreme Court rejected the argu-
ment advanced by the employers that a bargaining order
is a punitive remedy that “needlessly prejudices employ-
ees’ Section 7 rights.” 395 U.S. at 612. The Court stated
that a bargaining order not only deters “future miscon-
duct,” but also remedies “past election damage.” Id. The
Court reasoned as follows:

If an employer has succeeded in undermining a union’s
strength and destroying the laboratory conditions nec-
essary for a fair election, he may see no need to violate
a cease-and-desist order by further unlawful activity.
The damage will have been done, and perhaps the only
fair way to effectuate employee rights is to re-establish
the conditions as they existed before the employer’s
unlawful campaign.33 There is, after all, nothing per-
manent in a bargaining order, and if, after the effects of
the employer’s actions have worn off, the employees
clearly desire to disavow the union, they can do so by
filing a representation petition. For, as we have pointed
out long ago, in finding that a bargaining order in-
volved no “injustice to employees who may wish to
substitute for the particular union some other . . . ar-
rangement,” a bargaining relationship “once rightfully
established must be permitted to exist and function for
a reasonable period in which it can be given a fair
chance to succeed,” after which the “Board may . . .
upon a proper showing, take steps in recognition of
changed situations which might make appropriate
changed bargaining relationships.” [395 U.S. at 612–
613 (quoting Franks Bros. Co. v. NLRB, 321 U.S. 702,
705–706 (1944).]

33 It has been pointed out that employee rights are affected
whether or not a bargaining order is entered, for those who desire
representation may not be protected by an inadequate rerun elec-
tion, and those who oppose collective bargaining may be preju-
diced by a bargaining order if in fact the union would have lost an
election absent employer coercion. [Citation omitted.] Any effect
will be minimal at best, however, for there “is every reason for
the union to negotiate a contract that will satisfy the majority, for
the union will surely realize that it must win the support of the
employees, in the face of a hostile employer, in order to survive
the threat of a decertification election after a year has passed.”
Bok, The Regulation of Campaign Tactics in Representation Elec-
tions Under the National Labor Relations Act, 78 Harv.L.Rev.
38, 135 (1964).

This passage clearly shows in approving the Board’s
use of the bargaining order remedy in category I and II
cases, the Gissel Court explicitly took into account the
rights of employees who both favored and opposed union
representation. The Court stated that if an employer’s
unfair labor practices have the tendency to undermine a
union’s majority strength and destroy election condi-
tions, then “the only fair way to effectuate employee
rights” is to issue a bargaining order. In these circum-
stances, the interests of the employees favoring unioniza-
tion are safeguarded by the bargaining order. The inter-
ests of those opposing the union are adequately safe-
guarded by their right to file a decertification petition
pursuant to Section 9(c)(1) of the Act. On the other
hand, if the facts of a case fall within category III, i.e.,
the employer committed only “minor or less extensive
unfair labor practices” with only a “minimal impact on
the election machinery,” then a bargaining order may not
issue, notwithstanding the fact that a majority of employ-
ees signed authorization cards in support of the union.
395 U.S. at 614.
In sum, the Gissel option itself reflects a careful bal-
ancing of the employees’ Section 7 rights “to bargain
collectively” and “to refrain from” such activity. There-
fore, if a bargaining order has been adequately justified
under the Gissel standards, then we respectfully submit
that due consideration has been given to the employees’
Section 7 rights.
2. The Board agent challenged Bruce Pierce’s ballot
because he was not included on the election eligibility
list. Thereafter, the Respondent argued that Pierce was
an eligible voter based on its assertion that Pierce worked
in a unit classification as a truckdriver, whereas the Peti-
tioner claimed that Pierce should be excluded as a statu-
tory supervisor. After the parties failed to present any
evidence on Pierce’s status as an eligible voter, the judge
recommended that the challenge to Pierce’s ballot be
sustained because he found that the fact that his name
was not on the eligibility list was a “prima facie showng”
that he was “not eligible to vote” and because “no coun-
tervailing evidence was offered to rebut that showing.”
We reverse the judge for the reasons stated below.
The Board stressed in its Order Denying the Motion
for Reconsideration in Norris-Thermador Corp., 119
NLRB 1301 (1958),5 that eligibility lists are generally

5 The Board’s original decision in Norris-Thermador Corp., is re-
ported at 118 NLRB 1341 (1957).
STATE MATERIALS, INC. 1319
used as guides or tools to facilitate the election process
and are not considered as final or binding agreements on
eligibility issues.6 Thus, Pierce’s exclusion from the eli-
gibility list does not dictate our determination of his eli-
gibility status. Implicit in the Respondent’s contention
that it employed Pierce as a truckdriver (a unit position)
is the contention that Pierce was, in fact, in its employ.
The Union did not dispute this contention. Rather, the
Union argued that Pierce was a statutory supervisor
whom the Board should exclude on this ground. In gen-
eral, however, “it is the party seeking to exclude an indi-
vidual from voting for a collective-bargaining representa-
tive which has the burden of establishing that an individ-
ual is, in fact, ineligible to vote.” Queen Kapoliani Ho-
tel, 316 NLRB 655, 665 (1995), citing Golden Fann Inn,
281 NLRB 226, 229–230 fn. 12 (1986). In particular, the
party seeking to exclude a voter as a statutory supervisor
has the burden of establishing the voter’s supervisory
status.7 Given that the Union failed to substantiate its
own claim that Pierce possessed indicia of supervisory
status, we therefore conclude that Pierce was an eligible
voter in the unique circumstances here.8 Accordingly,
contrary to the judge, we overrule the challenge to
Pierce’s ballot and shall direct that his ballot be opened
and counted.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, State
Materials, Inc., Girard, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
IT IS FURTHER ORDERED that the challenges to the bal-
lots of Randy Anzevino, James Thomas, Bruce Pierce,
and Sandra Workman a/k/a Raven Black having been
overruled, they shall be opened and counted and that a
revised tally of ballots be issued and served on the par-
ties. If the tally shows a majority vote for the Union,
then the Union shall be certified as the collective-
bargaining representative in the stipulated appropriate
unit. If the revised tally fails to show that the Union re-
ceived a majority of the valid ballots counted, the elec-

6 See Cavanaugh Lakeview Farms, 302 NLRB 921 fn. 1 (1991).
7 See, e.g., Bennett Industries, 313 NLRB 1363 (1994).
8 In so concluding, we distinguish the Board’s decision in Romal
Iron Works Corp., 285 NLRB 1178, 1185 (1987) (employee Gregory
Ortiz), that the judge relied on for a contrary result. In that case, Ortiz
was challenged by the union as a temporary employee, not as a supervi-
sor, and he was not included on the eligibility list. The judge found that
a prima face case was made out that he was ineligible and he noted no
contrary evidence had been offered. It is not clear, however, that no
evidence was presented on Ortiz’ temporary status. Here, it is clear no
evidence was presented on Pierce’s allleged supervisory status. More-
over, it is unclear what position the employer there took as to Ortiz’
status. Here, it is clear the Respondent argues Pierce is an eligible
employee whose name was inadvertently omitted from the eligibility
list.
tion shall be set aside and the representation case dis-
missed.

Thomas M. Randazzo, Esq., for the General Counsel.
Anthony Bucci, pro se, of Girard, Ohio, for the Respondent-
Employer.
John M. Masters, Esq. and Basil W. Mangano, Esq., of Cleve-
land, Ohio, for the Charging Party-Petitioner.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This
case was tried in Cleveland, Ohio, on April 8 through 11, 1997,
pursuant to a complaint and notice of hearing (the complaint)
issued by the Regional Director for Region 8 of the National
Labor Relations Board (the Board) on February 27, 1997, and
an amendment to the complaint issued on March 20, 1997 . In
addition, on February 27, 1997, the Regional Director ordered
consolidated certain issues arising from the representation elec-
tion in Case 8–RC–15431. The complaint, based upon an
original charge in Case 8–CA–28582 filed on October 7, 1996,1
and an amended charge filed on November 12, by Teamsters
Local 377 a/w International Brotherhood of Teamsters, AFL–
CIO (the Charging Party or the Union), alleges that State Mate-
rials, Inc. (the Respondent or Employer) has engaged in certain
violations of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act).
The Union’s petition was filed on September 5, and sought
an election among certain of Respondent’s employees. An
election was held, pursuant to a Stipulated Election Agreement,
on October 25. The tally of ballots issued on that date shows
that of approximately 37 eligible voters, 29 ballots were cast,
10 in favor of representation by the Union, 11 against, and 8
were challenged. The challenged ballots are sufficient in num-
ber to affect the outcome of the election. The Union filed ob-
jections to conduct affecting the outcome of the election on
November 1.
Thereafter, as noted, on February 27, 1997, the Regional Di-
rector concluded that the allegations of the objections to the
election along with the issues raised by the determinative chal-
lenged ballots in Case 8–RC–15431 parallel issues with the
complaint allegations in Case 8–CA–28582 and ordered the
consolidation of those cases for hearing before an administra-
tive law judge. The Respondent filed an answer to the com-
plaint on March 17, 1997, denying that it had committed any
violations of the Act.
Issues
The complaint alleges that the Respondent discharged five
employees, and engaged in numerous independent violations of
Section 8(a)(1) of the Act including coercive interrogation,
threats to close its business, promise of benefits to its employ-
ees, threats to decrease employees’ wages and the initiation of a
signup policy and formal written disciplinary system in retalia-
tion for the employees union sympathies and activities. The
objections to the election track the complaint and raise identical
issues. Assuming the allegations in the complaint are proven,
there remains for consideration the question of whether a bar-
gaining order is the appropriate remedy or whether the repre-
sentation case should be permitted to proceed.
1 All dates hereafter are in 1996 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of all parties.
The General Counsel’s unopposed motion to strike portions of
Respondent’s brief is granted. In this regard, Respondent is not
permitted to make arguments based on documents which are
not in evidence. See B & D Custom Cabinents, 310 NLRB 817
at fn. 1 (1993).
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the production
and delivery of asphalt, with an office and place of business in
Girard, Ohio, where it annually purchased and received goods
and materials at its facility in excess of $50,000 directly from
points outside the State of Ohio. The Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
In or around December 1995, the Respondent changed its
name from Black Rock to its current designation and without
interruption continued to operate its facility with the same su-
pervisory and production employees. At all material times,
Frank Aquila held the position of president and Anthony
“Tony” Bucci as manager of Respondent. The status of Robert
Bucci, Dan Bucci II, and John Shelton as supervisors and
agents of Respondent are in dispute and will be addressed later
in the decision.
Randy Anzevino, an employee, assumed the position of or-
ganizer of the Union in September 1996, and was involved in
soliciting authorization cards from Respondent’s employees.
B. The Union Campaign and Authorization Cards
The union campaign began on September 4, with Anzevino
arriving at Solomon’s Mine in advance of Respondent’s truck
drivers, and meeting individually with each driver while they
waited to pick up sand and other materials.
Anzevino testified that he gave authorization cards to the fol-
lowing employees who signed the cards in his presence and
returned them to him. He then gave these cards to the union
business agent. Accordingly, I admitted these cards into evi-
dence.

Ray Alexander Leroy Balleu
James Craft Dan Eckman
Gregg Griffin Ken Johnson
Bonnie Kuhn Gary Lockner
John McGuire George Mrosko
Jim Ragazzine Gary Reynolds
Ron Snyder James Thomas
Tim Walsh

Employees Kevin L. Lane and Sandra Workman a/k/a Raven
Black identified their own authorization cards as did Anzevino
and they were eventually given to the union business agent.
I received all the above cards in evidence and find that each
is legitimate and an expression of that employee’s desire to
have the Union as bargaining agent.
Thus, there is a total of 18 union authorization cards that
have been received in evidence and which I have found are
valid.
C. The 8(a)(1) Violations
1. Allegations concerning Tony Bucci
On the morning of September 4, Respondent dispatched all
of its trucks to Solomon’s Mine in order to pick up sand and
other materials and deliver them back to the plant. While each
of the drivers was waiting for their truck to be loaded and
weighed, they individually met with Randy Anzevino and
signed a union authorization card. After the loading process
was completed, the drivers began to return to the plant in a
caravan fashion. While the drivers were returning to the plant,
a number of them, including James Thomas, overheard fellow
employee Tim Walsh tell Tony Bucci over the two-way radio,2
that Randy Anzevino was organizing the employees and every-
body signed union cards at Solomon’s Mine. Immediately
upon returning to the yard, Bucci asked a number of truckdriv-
ers, “whether they had signed union cards?” Each of the driv-
ers responded, “that they had.” Employee Raven Black testi-
fied that she overheard Bucci ask three truckdrivers whether
they had signed union cards. She heard each of the three driv-
ers reply that they had signed a union card and then heard
Bucci tell all the drivers, to dump the sand, park the trucks, and
punch out. The drivers did as instructed. As the drivers were
walking out of the yard, Bucci called them back and wanted to
know what it would take to resolve it. A meeting was held with
all the truck drivers except Gregg Griffin and Bonnie Kuhn,
who experienced flat tires at Solomon’s Mine and did not re-
turn to the plant with the other drivers. Tony, Robert, and Dan
Bucci II, represented the Respondent at the meeting. Tony
Bucci told the employees at the inception of the meeting that he
wanted to work things out and wanted to know what he could
do. Employee James Thomas said that all the drivers would
like a little more money, some time and a half, a little bit of
benefits and a reduction in some of the required work hours.
Tony Bucci replied, “if the union was coming in, he was going
to shut the gate and rename the company.” He then said, “You
guys can join the Union, but they’re not going to do anything
for you.” “If you guys want to go back to work, I have no
problem, I will give everybody a dollar an hour raise.” During
the meeting, Robert Bucci, when asked about benefits, reached
in his pocket, threw a dollar on the ground and said, “If you
want them, buy them.” After the September 4 meeting ended,
the majority of the drivers returned to work with some of them
completing 10- and 11-hour shifts according to payroll records.
A number of employees did not return to work on September 5,
and that issue will be discussed later in the decision. When
Bonnie Kuhn, a witness called by Respondent, returned to the
yard after the meeting with the truckdrivers had ended, Bucci
asked her,” what happened?” Kuhn testified that she told Bucci
“that Anzevino was at Solomon’s Mine signing the guys up for
the Union.”
On the next day, September 5, Tony Bucci had a conversa-
tion with employee James G. Marino and asked him how he felt

2 Each of Respondent’s trucks was equipped with a two-way radio in
order to communicate with supervisory personnel at the plant.
STATE MATERIALS, INC. 1321
about the Union. Marino testified that he told Bucci that he
was for the Union and according to Marino, Bucci walked away
in disgust.
On September 12, employee Kevin L. Lane attended a meet-
ing by the garage with approximately half the truckdrivers.
Tony and Robert Bucci, in addition to administrative disgust.
assistant Robert Kathuria, represented the Respondent. This
was the first meeting, after the filing of the representation peti-
tion on September 5, that the Respondent addressed issues con-
cerning the Union. During the course of the meeting, Lane
testified that Tony Bucci said words to the effect that he would
bring everybody down to $6.50 an hour if the Union came in
and would take union dues and benefits from that figure. Lane
further testified that Bucci also told the employees in atten-
dance at the meeting, “ that he would give them a $1.00 an hour
more not to bring the Union in” and “that the Employer would
close if the Union came in.”
On October 11, the Respondent held meetings in the little
room downstairs underneath the plant office to discuss facts
about the upcoming union vote on October 25. Two sessions
were held with half the truckdrivers in attendance at each of the
morning sessions. Employee Lane testified that during the
meeting he attended, Tony Bucci said, “that he would close the
company if the union came in” and “that he would give the
drivers $1.00 an hour more but his attorney said he was not
allowed to talk about that.”
The testimony of Thomas, Lane, Marino, Black, and Kuhn is
unrebutted as Tony Bucci did not testify at the hearing. In this
regard, counsel for the General Counsel attempted to examine
Bucci as a witness pursuant to Section 611(c) of the Federal
Rules of Evidence. Bucci asserted his Fifth Amendment right
and refused to respond to questions. I directed the General
Counsel to ask Bucci a number of questions to determine
whether this position would be asserted on each question pro-
pounded. This approach was followed and on the simplest of
questions such as “Where are you employed,” Bucci continued
to refuse to respond, asserting his Fifth Amendment right. I
determined that no reasonable ground existed that a direct an-
swer might prove dangerous to Bucci and compelled him to
answer the questions posed by the General Counsel. See Ma-
son v. U.S., 244 U.S. 362 (1917). At all material times, Bucci
refused to respond to questions propounded by the General
Counsel or me.
The general test applied to determine whether employer
statements violate Section 8(a)(1) of the Act is “whether the
employer engaged in conduct which reasonably tends to inter-
fere with, restrain, or coerce employees in the free exercise of
rights under the Act.” NLRB v. Aimet, Inc., 987 F.2d 445 (7th
Cir. 1993); Reeves Bros., 320 NLRB 1082 (1996).
Employees Thomas, Lane, Marino, Black, and Kuhn credi-
bly testified concerning statements made to them by Tony
Bucci. Bucci is an admitted supervisor who refused to testify.
His statements are therefore undenied. I find that Tony Bucci
made the statements imputed to him by the above-noted em-
ployees. I further find that Bucci’s statements tended to coerce
employees in the exercise of their Section 7 rights and that they
violate Section 8(a)(1) of the Act, as alleged in paragraphs 7(A,
B, C., D, and F), 9, 11and 12 of the complaint. See T & J
Trucking Co. 316 NLRB 771 (1995) (threatening plant closure
and discharge); Tube-Lok Products, 209 NLRB 666, 669
(1974) (futility of selecting a union as collective-bargaining
representative); Conagra Inc., 248 NLRB 609, 615 (1980)
(threatening employees with loss of benefits); Marriott Corp.,
310 NLRB 1152 (1993) (promising a wage increase during
union campaign), and House Calls, Inc., 304 NLRB 311, 319
(1991) (coercive interrogation).
2. The CB radios
The General Counsel alleges in paragraphs 7(E) and 10 of
the complaint that Tony Bucci ordered employees to remove
CB radios from Respondent’s trucks and the Respondent ac-
corded preferential treatment to employees opposed to the Un-
ion by permitting them to keep CB radios in their trucks while
requiring prounion employees to remove their CB radios.
The sole source of testimony concerning this issue was elic-
ited from employee Gregg I. Griffin. He commenced employ-
ment with Respondent on June 29 and signed a union
authorization card on September 4 at Solomon’s Mine.
Griffin testified that prior to September 4, truckdrivers were
permitted to have personal CB radios in their assigned truck but
after that date prounion employees were told to remove their
radios. He further testified that employees who opposed the
Union were able to retain their CB radios for an extra week
before all employees were instructed to remove personal CB
radios from their assigned truck. When asked on direct exami-
nation how he knew which employees were pro-union, Griffin
replied that it was based on general discussions among the em-
ployees.
While it appears that employee CB radios were removed
from Respondent’s trucks after September 4, the General Coun-
sel did not introduce any testimony of who ordered the radios
removed from Respondent’s trucks. Thus, there is no evidence
in the record to link the removal of the radios to anyone in Re-
spondent’s supervisory chain nor was any evidence presented
to establish that the removal of the CB radios was related to
union activities. Under these circumstances, I can not find, as
alleged by the General Counsel, that Tony Bucci ordered em-
ployees to remove CB radios from Respondent’s trucks in re-
taliation for their union activities. Likewise, I can not find that
Respondent accorded preferential treatment to employees op-
posed to the Union by permitting them to keep CB radios in
their trucks while requiring prounion employees to remove
their CB radios. First, there is no concrete evidence in the re-
cord to conclusively establish which of Respondent’s truck
drivers supported or opposed the Union. Indeed, all of Re-
spondent’s truckdrivers present at Solomon’s Mine on Septem-
ber 4, signed union authorization cards. Second, Griffin testi-
fied that sometime after September 4, all employees were di-
rected to remove their personal CB radio from their assigned
truck and while he asserted that four antiunion drivers were
permitted to retain their CB radios for an extra week, there was
no evidence presented as to who in Respondent’s supervisory
chain authorized these actions. Therefore, I find that the Gen-
eral Counsel has not conclusively established that the Respon-
dent violated Section 8(a)(1) of the Act by ordering employees
to remove CB radios from their trucks in retaliation for their
union activities or accorded preferential treatment to employees
opposed to the Union by permitting them to keep CB radios in
their trucks while requiring prounion employees to remove
their CB radios, and I recommend that these allegations be
dismissed.
3. The signup policy and formal written disciplinary system
The General Counsel alleges in paragraph 8 of the complaint
that Tony Bucci, in or around mid-September 1996, initiated a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
sign-up policy which required employees to sign a notice stat-
ing the date and time that they were next required to report to
work and a formal written disciplinary system in retaliation for
employees’ union activities.
General Counsel witness James Thomas testified on cross
examination that prior to September 4, there was a formal
signup policy in effect and he regularly received the form from
Respondent’s Foreman John Shelton. Likewise, Kevin L. Lane
testified that although he first became aware of the signup form
after he returned to work on September 10, other truckdrivers
told him that the form was previously used before September 4.
Employee Clarence Huckaba testified that while he was re-
quired to use the sign-up form every day after September 4, he
had signed and used it prior to that time but not on a daily basis.
With respect to the formal written disciplinary system, em-
ployee James Thomas testified that he was aware that prior to
September 4 employees were written up for being late or not
cleaning their trucks. Likewise, former Supervisor Norm Hen-
ninger who was employed at Respondent from March to mid-
June 1996, credibly testified that the disciplinary policy was in
effect during that period and authenticated several written dis-
ciplinary forms that were given to employees in April and May
1996.
Considering the testimony of these witnesses, I find that both
the signup policy and the formal written disciplinary system
was in effect prior to September 4. Thus, it cannot be estab-
lished that the Respondent initiated these practices after Sep-
tember 4, in retaliation for employees’ union activities.
Accordingly, I recommend that paragraph 8 of the complaint
be dismissed.
D. The 8(a)(1) and (3) Violations
1. The termination of Randy Anzevino
The Respondent contends in its brief that because the
amended charge filed on November 12 alleges that Randy An-
zevino was terminated on September 5, and the amendment to
complaint issued on February 27, 1997 alleges the termination
occurred on June 8, the entire matter is time barred under Sec-
tion 10(b) of the Act and should be dismissed. Contrary to this
argument, I find that that the charge and complaint allegations
have a legally sufficient relationship, the June 8 date of termi-
nation is within 6 months of the original and the amended
charge, and the February 27, 1997 amendment to complaint
gave the Respondent ample time to prepare its defense. See
Fiber Products, 314 NLRB 1169 (1994).
Randy Anzevino commenced work in June 1995 with Black
Rock, the predecessor of Respondent, and continued as an em-
ployee of Respondent when it changed its name in December
1995. He did not work for the Respondent between January
and May 23. On May 23, he filed an employment application
and was rehired by Respondent to commence work on that date.
On Saturday, June 1, Anzevino reported to work and saw other
drivers standing in the yard rather then starting their trucks. He
became aware that the drivers did not start their trucks because
the license tags for both the tractors and the trailers expired on
May 31. The 12 drivers including Anzevino had a meeting
with Tony and Robert Bucci and told them that they refused to
drive the trucks because the license tags had expired. Tony
Bucci told the drivers that Administrative Assistant Robert
Kathuria had made a mistake and forgot to get the license tags
renewed. He told the drivers that the tags would be available
on Sunday and asked them to drive on the back roads. The
drivers in attendance at the meeting refused to drive on the back
roads. Except for five drivers, who drove smaller trucks and
were not impacted by the renewal issue, all of the drivers that
attended the meeting with Bucci refused to work on June 1.
The meeting began to disperse and while Anzevino was stand-
ing next to Tony and Robert Bucci, Tony Bucci said, “that will
teach you to organize these guys.” Anzevino walked away.
The payroll records show that no truckdrivers worked on
Sunday, June 2.
Records introduced in evidence show that except for the li-
cense tags for two trucks, all tags were renewed by the end of
the day, on June 3.
Anzevino credibly testified that he went to the facility on
June 3, and had a conversation with Tony Bucci. He asked
Bucci whether the tags for his truck 41 had been renewed?
Bucci said, “no, there was another mix-up.” Bucci then told
Anzevino, “just drive on the back roads.” Anzevino replied,
“that he refused to do that for the rate of pay that he was being
paid or to jeopardize his license.” Bucci said, “If you want to
work, I would drive.”
On Tuesday, June 4, Anzevino reported to work but was told
to come back on Thursday and Respondent would have his
tags. Payroll records show that the majority of truckdrivers
returned to work on June 4.
Anzevino returned to work on Thursday, June 6, and went to
the office. He asked Tony Bucci whether the tags had arrived?
Bucci replied, “no, there has been another mix-up.” “If you
want to work, you’ll drive the back roads.” Anzevino left the
office and did not work on that day.
The records show that by the end of the day on June 7, the li-
cense tags for truck 41 had been renewed. The Respondent got
in touch with Anzevino and called him back to work on Satur-
day, June 8. Anzevino returned to work that day and went
directly to the office where he saw Robert Bucci and Robert
Kathuria. He received the license tag for the tractor but not for
the trailer. Anzevino asked Bucci, “Where is the tag for the
trailer?” Bucci replied, “We will get it.” Anzevino said, “I’m
not driving without my tags.” “I’m not driving illegally.”
Bucci said, “If you want to work, you’ll drive.” Anzevino said,
“I can work anywhere.” “I don’t have to work for you people”
and “I don’t have to work illegally.” “Call me when you get
your tags.”
Anzevino credibly testified that he did not quit his employ-
ment at Respondent, and he was never called back to work after
his conversation with Robert Bucci on June 8.
The following week Anzevino went to the union hall and
asked business agent Jerry Morrison whether the Union had
ever attempted to organize the Respondent? He became aware
that no one had attempted to do so and Anzevino asked if he
could be involved in this endeavor. Before undertaking that
assignment, Anzevino obtained a job through the Union and
remained there for approximately 2 months. It was after the job
ended that Anzevino obtained authorization cards from the
Union and began the campaign on September 4 to organize
Respondent’s employees.
The General Counsel alleges in paragraph 14 of the com-
plaint that Respondent caused Anzevino to terminate his em-
ployment against his will by forcing him to drive a truck that
was not properly licensed and refused to call him to work when
the truck was properly licensed because he engaged in con-
certed activities and/or he formed, joined, and assisted the Un-
ion. The Respondent takes the position that Anzevino voluntar-
STATE MATERIALS, INC. 1323
ily resigned his employment effective May 31, and asserts in
any event that he could not have been discriminatorily dis-
charged in June 1996, since the Respondent did not learn about
union organizing activity until September 4.
I find that Anzevino and the other 11 truckdrivers engaged in
concerted activity for the purpose of mutual aid and protection;
specifically, to enforce safety conditions by not driving trucks
that had expired license tags. To further enforce this position,
none of the 12 drivers that went to see Tony Bucci on June 1 to
protest the expired license tags worked on either June 1, 2, or 3.
It was not until the license tags for the majority of the trucks
were renewed on June 3, that those drivers returned to work on
June 4. While none of those drivers was fired by Respondent
for their protest, it is noted that only Anzevino engaged in one-
on-one conversations with Tony Bucci about the status of his
license tags. In these conversations, Anzevino repeatedly re-
fused to drive without legal license tags and rejected Bucci’s
instructions to drive on the back roads. Lastly, when Anzevino
was called back to the facility on Saturday, June 8, and was
given the renewed tag for the tractor and told to go to work, he
continued to refuse to drive because the tag to the trailer had
not been renewed.3 It was after this last conversation that An-
zevino was not called back for employment with Respondent.
Thus, I find that Respondent discharged and did not call An-
zevino back to work because he engaged in concerted activity
under Section 7 of the Act and therefore violated Section
8(a)(1). Robbins Engineering, 311 NLRB 1079 (1993).
In regard to the General Counsel’s alternative theory that
Anzevino was constructively discharged because of his union
activities and/or based on the allegation in paragraph 6 of the
complaint that Toni Bucci told Anzevino on June 1, “that will
teach you to organize these guys,” I am not persuaded that the
Act has been violated. With respect to the General Counsel’s
theory of termination, the two elements necessary for a con-
structive discharge have not been established. First, Anzevino
testified that he did not quit or resign his position and second,
no evidence was submitted to show any knowledge by Respon-
dent of any union organizing activity ongoing on June 1. In-
deed, it was not until after Anzevino left Respondent’s employ
on or about June 8, that he went to the union hall. While I am
inclined to credit Anzevino’s testimony that Tony Bucci made
the statement imputed to him (“that will teach you to organize
these guys”), I do not find, standing alone, that such a statement
is threatening or coercive. As noted above, at the time the
statement was made, there was no evidence of any union orga-
nizing activity ongoing at Respondent. Accordingly, I recom-
mend that paragraph 6 and the 8(a)(3) allegation of the com-
plaint regarding Anzevino be dismissed.
2. The termination of James Thomas
James Thomas, a unit employee, commenced work with
Black Rock in May 1994, and continued his employment at
Respondent when it changed its name in December 1995. He
signed a union authorization card on September 4 at Solomon’s
Mine and was terminated by Respondent on September 5, for
alleged insubordination and poor work performance.
Thomas credibly testified that when he returned to the yard
on September 4 from Solomon’s Mine, Tony Bucci asked him
whether he signed a union card. Thomas replied that he had

3 Respondent’s supervisor, Norm Henninger, credibly testified that
to be in compliance with the law, it was necessary to have current li-
cense tags for both the tractor and the trailer.
signed a union card. In the meeting that took place on that day
between the truckdrivers and the Respondent, it was Thomas
who was the spokesperson for the employees. In response to
Tony Bucci’s question of what he could do to work things out,
Thomas said the employees would like a little more money,
some time and a half, a little bit of benefits and a cut in some of
the work hours. After Thomas made that statement, Bucci said,
“State Materials wasn’t in business then.” When the meeting
broke up, payroll records show that Thomas returned to work
and completed the workday.
Thomas reported to work on September 5, and was told to go
home because his truck needed repair work. Thomas admitted
that the truck needed a couple of front tires and the brakes
needed to be adjusted but testified that these were considered
minor repairs. Thomas credibly testified that he reported to
work on each successive day after September 5, and was told to
go home. On September 9, Thomas reported to work and was
told that Tony Bucci wanted him to drive a dump truck that had
been “red-tagged.”4 Thomas waited until Tony Bucci was fin-
ished talking to another driver and walked over to where he was
standing. Bucci said, “just turn around and go home, you don’t
want to work.” After that conversation, Thomas was never
called back to work at the Respondent.
In order to discern the reason or reasons for Thomas’ termi-
nation, I asked Tony Bucci to state the Respondent’s position
for the record. Bucci initially replied that Thomas was termi-
nated because he refused to drive a small truck and told Bucci
he would not drive it because it was “red-tagged.” Bucci then
changed his position somewhat and apprised me that Thomas
was fired on September 5 for insubordination (not driving the
small truck), and for poor work performance including two
accidents, the second of which caused $7000 worth of damage
to his truck in May 1996. Thomas testified that while he did
have two accidents, he was never disciplined or written up for
the infractions nor did he have a history of poor work perform-
ance at the Respondent. Indeed, Respondent did not introduce
any employee disciplinary reports involving these two acci-
dents nor evidence of any prior infractions committed by Tho-
mas.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of Section 8(a)(1)
turning on employer motivation. First, the General counsel
must make a prima facie showing sufficient to support the in-
ference that protected conduct was a “motivating factor” in the
employer’s decision. On such a showing, the burden shifts to
the employer to demonstrate that the same action would have
taken place even in the absence of the protected conduct. The
United States Supreme Court approved and adopted the
Board’s Wright Line test in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 399–403 (1993). In Manno Electric,
321 NLRB 278 fn. 12 (1996), the Board restated the test as
follows. The General Counsel has the burden to persuade that
antiunion sentiment was a substantial or motivating factor in
the challenged employer decision. The burden of persuasion
then shifts to the employer to prove its affirmative defense that
4 The Department of Transportation puts red tags on trucks when
they are unsafe or in serious condition. These trucks must be fixed
before they can be driven.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
it would have taken the same action even if the employee had
not engaged in protected activity.
For the following reasons, I find that the General Counsel
has made a strong showing that the Respondent was motivated
by antiunion considerations in terminating Thomas. First, the
evidence establishes that Bucci learned of Thomas’ union activ-
ity on September 4, and specifically interrogated him about
whether he signed a union card on that date. In the meeting
with the truck drivers on September 4, Thomas was the chief
spokesperson for the employees and told Bucci the specific
economic demands the employees needed in order to work
things out. Thus, there is union activity, knowledge and animus.
Second, the abruptness of the termination on September 5 fur-
ther supports the conclusion that the termination was unlaw-
fully motivated.
The burden shifts to the Respondent to establish that the
same action would have taken place in the absence of the em-
ployee’s protected conduct.
In regard to the shifting reasons for Thomas’ termination,
Respondent first advanced that he was terminated in part for
poor work performance including being involved in two acci-
dents with the second accident in May 1996 causing damage to
his truck in the amount of $7000. I find the Respondent’s af-
firmative defense to be wholly without merit and conclude it is
pretextual. In this regard, Respondent did not present any re-
cord evidence that Thomas had a history of poor work perform-
ance during his tenure of employment. Likewise, Thomas was
not disciplined or written up for either of his two accidents.
Therefore, I conclude that this portion of Respondent’s affirma-
tive defense is a sham and the true reason for the termination
was Thomas’ protected activity.
The second reason advanced by Respondent for Thomas’
termination was his insubordinate behavior on September 9, by
refusing to drive a small truck to haul materials.
In regard to this issue, employee and mechanic Raven Black
credibly testified that John Shelton gave her the paperwork for
this truck prior to September 5 because one of the slack adjust-
ers was frozen. The truck was “red tagged” due to its unsafe
condition and remained in the yard area for several weeks wait-
ing to be repaired. On September 5, the truck was still in its
“red tag” status and in Black’s opinion was unsafe to drive. I
conclude that Respondent seized upon Thomas’ refusal to drive
the unsafe truck to support its business justification for the
termination. I reject this reason because of Black’s testimony
that the truck was unsafe to drive and note that when the drivers
refused to drive on June 1 because of expired license tags, no
discipline was imposed on any of the drivers. Significantly,
unlike September 9, there was no union organizing at the facil-
ity in June 1996.
In conclusion, I find that the Respondent has failed to dem-
onstrate that it would have taken the same action against Tho-
mas even in the absence of his engaging in union activities. I
also note that the reasons advanced for the termination shifted
during the presentation of Respondent’s case and occurred at a
time immediately after significant protected activity took place
on the preceding day. Under these circumstances, such actions
suggest a predetermined plan to create a reason to discharge
Thomas and thus rid the facility of a union activist. Further
undermining Respondent’s defense is evidence which demon-
strates disparate treatment. As noted previously, no discipline
was imposed on the truck drivers when they refused to drive the
trucks on June 1, prior to any union activity, because of expired
license tags. Thomas’ refusal to drive an unsafe truck clearly
equals the actions of the other drivers, yet he was terminated.
Accordingly, for the reasons noted above, I find that Re-
spondent’s discharge of James Thomas violated Section 8(a)(1)
and (3) of the Act.
3. The termination of Kevin L. Lane
Kevin L. Lane commenced employment with the Respon-
dent in July 1996 as a truckdriver. He worked continuously
from July 1996 to September 3, called in sick on September 4,
but did not return to work until September 10. Since he was on
sick leave, he did not sign a union authorization card at Solo-
mon’s Mine nor did he attend the truck drivers meeting at the
facility that morning.
Employee Sandra Workman a/k/a Raven Black testified that
she lived with Lane and decided to attend the truckdrivers’
meeting on September 4 so she could inform Lane about what
took place.5 After the meeting ended, Black telephoned Lane
and told him he better get down to the facility because there
was a lot of discussion about the Union and the drivers had
signed union cards. Lane did not go to the facility; rather he
went directly to the union hall and signed a union authorization
card.
On the evening of September 4, Lane telephoned Respondent
and asked John Shelton what time he should be in on Septem-
ber 5? Shelton told Lane not to come to work but to call every
morning. Lane followed these instructions and telephoned the
Respondent each morning on September 6–8 (Friday–Sunday);
he told Shelton on Sunday that he was going to go to the unem-
ployment office on Monday. Shelton told Lane to call in on
Monday morning and after Lane made the call, he was told to
call again in the afternoon. After returning from the unem-
ployment office, Lane called Shelton on Monday afternoon and
was told to report back to work on September 10.
Lane worked 4.50 hours on September 10 and on September
11 reported 18 minutes late for work for which he was issued
an employee warning disciplinary report. Payroll records show
that during the weeks ending September 14, 21, and 28, and
October 5, 12 and 19, Lane worked approximately 40 hours
each week.
On October 13, Lane signed up to start work at 8 a.m. but
did not report to work on time because he had a flat tire. He
was given an employee warning disciplinary report which he
refused to sign.
On October 14, Lane was instructed to report to work at 5:30
a.m. but came in late. He was given his third employee warn-
ing disciplinary report which he signed.
On October 22, Lane was given his fourth employee disci-
plinary report for failing to report to work on Sunday and Mon-
day, October 20 and 21 and for reporting to work onTuesday
October 22 at 7:20 a.m. rather then when he was instructed to
come in at 7 a.m. Because Lane refused to sign the employee
disciplinary report, he was relieved of his job duties and ad-
vised that he would be informed of his status pending an inves-
tigation. By letter dated November 15, from Respondent’s
President Frank Aquila, Lane was terminated because of his
unsatisfactory employment record.
Lane credibly testified that after he returned to work on Sep-
tember 10, both Frank Aquila and John Shelton asked him

5 Black was also terminated from Respondent and this issue will be
treated later in the decision.
STATE MATERIALS, INC. 1325
whether he signed a union authorization card.6 He also testified
that during the last week of his employment at Respondent, he
regularly wore a Union hat while he was at the facility and was
observed by Tony and Robert Bucci.
The General Counsel alleges in paragraph 15 of the com-
plaint that Lane was terminated because he formed, joined and
assisted the Union. The Respondent takes the position that
Lane was terminated because of his unsatisfactory work record
including the four employee disciplinary warning reports.
As stated earlier, the Board has indicated that the General
Counsel has the burden to persuade that antiunion sentiment
was a substantial or motivating factor in the challenged em-
ployer decision. The burden of persuasion then shifts to the
employer to prove its affirmative defense that it would have
taken the same action even if the employee had not engaged in
protected activity.
I find that the General Counsel has established that the Re-
spondent was motivated by antiunion considerations in termi-
nating Lane. First, the evidence establishes that the Respondent
told Lane not to report to work on September 5–9, which im-
mediately followed the truckdrivers’ meeting about the Union
organizing campaign held on September 4. While Lane did not
attend that meeting, it was common knowledge among manag-
ers and employees that he was living with Sandra Workman
who attended the meeting and it must be presumed that any
information that she gained at the meeting would be shared
with Lane. Although no evidence was elicited that the Respon-
dent knew Lane signed a union authorization card at the union
hall on the afternoon of September 4, it was brought out by
Respondent on cross examination that its managers inquired of
Lane, after he returned to work on September 10, whether he
signed a union authorization card. Lastly, during the last full
week of employment ending October 19, Respondent observed
Lane wearing a union hat while working at the facility.
Respondent takes the position that it terminated Lane be-
cause of his unsatisfactory employment record and his discipli-
nary actions. I find revealing that each infraction taken against
Lane took place after September 4, the date Respondent learned
of the truck drivers protected activity. Lane credibly testified
that prior to September 4 he had an unblemished work record
and had never been written up or criticized about his work.
Significantly, while Lane was late for work on several occa-
sions prior to September 4, he was never counseled nor did he
receive an employee disciplinary warning report. While Lane
admitted that he was late for work on September 11 and Octo-
ber 14, payroll records show that he worked the remainder of
those days. Lane refused to sign the October 13 employee
disciplinary report because a flat tire caused him to be late for
work. I note that the Respondent made no attempt to confirm
this assertion which it easily could have done. While the Re-
spondent charged Lane in the October 22 employee disciplinary
report that he refused to work on Sunday and Monday, October
20 and 21, it ignored the prior July 1996 agreement made by
John Shelton with Lane that he did not have to work on Sun-
days because of personal and religious reasons. While the pay-
roll records show that Lane worked one Sunday in October
1996, this was at the request of Respondent because of good

6 I did not permit the General Counsel to amend the complaint for
the purpose of including these allegations as independent violations of
the Act because the Respondent was not apprised about these state-
ments until the day Lane was called to testify.
weather and the need to complete an important job. Otherwise,
the payroll records introduced in evidence show that Lane did
not regularly work on Sundays in September and October 1996.
Finally, I conclude that during the week ending October 19,
which was the last full week Lane worked at Respondent, his
wearing of the Union hat on a continuing basis was the straw
that broke the camel’s back. It stands to reason that such a
blatant exhibit of support for the Union, approximately 1 week
prior to the scheduled October 25 election, would incur disfa-
vor with Tony and Robert Bucci. Indeed, there is no dispute
that the Bucci’s observed Lane wearing the union hat during
the week. It was immediately after Lane reported late for work
on October 22 that he was relieved of his job duties, which was
the first day back since last working on Saturday, October 19.
In sum, the General Counsel presented a strong prima facie
case by presenting an abundance of evidence showing that the
union activity of Lane was a motivating factor in the Respon-
dent’s decision to terminate him. Respondent has failed to
carry its substantial burden of showing by a preponderance of
the evidence, that in the absence of Lane’s union activity, the
Respondent would have taken the same action. Accordingly, I
find that by terminating Lane on October 22, the Respondent
violated Section 8(a)(1) and (3) of the Act.
The termination of James G. Marino
James G. Marino was hired by Respondent in April 1996 as
a mechanic and was terminated on September 11.
Marino was at work on September 4, and shortly after the
truckdrivers returned from Solomon’s Mine, he became aware
of the Union organizing campaign. Marino noticed, a short
time later, that the truckdrivers were having a meeting outside
his work area and he walked over to join the meeting. Upon
arriving at the meeting, Tony Bucci told him the meeting was
only for truckdrivers and he should return to work. Marino
immediately left the meeting and went back to work.
On September 5, Marino and Tony Bucci had a conversation.
Bucci asked Marino, “how he felt about the Union?” Marino
replied, “that he was for the Union.” Bucci then walked away.
On September 11, Marino arrived at work at 6 a.m. and
parked his car in front of the mechanics shop because he had
some heavy tools that needed to be returned to the shop. After
he made one trip into the shop, John Shelton asked him to lock
the gate. Marino drove his car to the gate area, locked the gate,
and returned to the mechanic shop. He then took the remaining
tools from his car into the work area. As Marino was returning
to his car, he was stopped by Tony Bucci who told him he was
not allowed to park his car there. Bucci brought out a pink slip
and told Marino to sign it. Marino refused to sign the pink slip.
Bucci told Shelton to get Marino’s timecard. Marino told
Bucci that he would get his own timecard and started toward
the mechanic shop. Bucci instructed Shelton to follow Marino
and told Shelton to get him out of here. Marino punched out
and brought one load of his personal tools to his car which was
still parked outside the mechanic shop. Marino attempted to
return for the remainder of his tools but was told by Tony Bucci
that he was fired and to leave the premises. Marino drove off
the premises and then telephoned the Girard police department
about the incident. After the police arrived and asked Bucci
whether Marino could retrieve his tools, Bucci permitted Mar-
ino to remove his remaining personal tools from the shop area.
The General Counsel alleges in paragraph 16 of the com-
plaint that Marino was terminated because he supported the
Union while the Respondent contends he was fired for parking
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
his car illegally, and for his abusive behavior during the con-
frontation about that incident.
For the following reasons, I find that the General Counsel
has made a strong showing that the Respondent was motivated
by antiunion considerations in terminating Marino.
In this regard, when Marino attempted to join the truckdriv-
ers’ meeting on September 4 to listen to the dialogue about the
Union, Tony Bucci directed him to return to work. On the very
next day, Bucci asked Marino how he felt about the Union and
Marino apprised him that he was for the Union.
The burden shifts to the Respondent to establish that the
same action would have taken place in the absence of the em-
ployee’s protected conduct. I find that Marino’s termination
would not have occurred in the absence of his protected con-
duct.
First, while Marino admitted that he was previously orally
warned not to park his personal vehicle in the shop area, his
purpose of doing so on September 11 was to return heavy tools
to the work area. His car was parked in front of the shop area
for approximately 15 minutes and did not interfere with any
deliveries or the loading and unloading of trucks. It is noted
that John Shelton, whose status as a supervisor is in dispute and
will be treated later in the decision, observed Marino’s car
parked in front of the shop area before Bucci arrived but did not
instruct Marino to move it from the premises. Lastly, Respon-
dent did not establish any evidence of abusive behavior.
I also find revealing that prior to September 4, except for the
oral warning about parking his car in the shop area, Marino had
no prior discipline and an unblemished work record.
The evidence establishes that on September 4, Bucci was
only aware of the truckdrivers’ interest in joining the Union.
Indeed, the representation petition filed with the Board on Sep-
tember 5 initially sought a truckdriver’s unit and the mechanics
were added at a later date. When Bucci 1learned on September
5 that Marino supported the Union, he set out to quash any
interest or opportunity for the mechanics to join the Union.
Thus, he used the illegal parking issue on September 11 to
shield the true motivation and reasons for Marino’s termination.
Accordingly, I find that Respondent violated Section 8(a)(1)
and (3) of the Act.
5. The termination of Sandra Workman a/k/a Raven Black
Sandra Workman was hired as a diesel mechanic at Respon-
dent on July 22 and was terminated and not called back to work
after September 4. On September 15, she changed her name to
Raven Black.
On September 4, Workman was performing her assigned du-
ties when she noticed that the trucks were coming back into the
yard. As Workman was on her way back to the garage, she
overheard Tony Bucci ask three of the truckdrivers whether
they had signed union cards. After she heard the three drivers
answer yes to Bucci’s question, she heard Bucci tell the drivers
to park the trucks, dump the sand, and punch out. Workman
went to help some of the drivers remove their tools from their
trucks and while she was doing this, a meeting was called by
Tony Bucci. Workman went to the meeting so she could in-
form employee Kevin L. Lane, who was on sick leave and with
whom she was living, what was discussed about the Union.
During the course of the meeting, Robert Bucci asked Work-
man why she was there? Workman replied, “that if the meeting
had to do with a pay raise, she wanted to know because she was
only getting six bucks an hour and she had given her two weeks
notice to quit because of only making six bucks an hour.” After
the meeting ended, John Shelton told Workman to clock out.
Workman asked, “Why?” Shelton replied, “because of the
strike, there was going to be no work.” Shelton then told
Workman to go home. Workman left the facility and went to
the Union hall in the afternoon where she signed a union au-
thorization card. The next day, September 5, Workman tele-
phoned Shelton to inquire whether she should come to work.
Shelton told her that the trucks were still down and they did not
want her coming into work.
Workman testified that 1 week prior to the September 4
meeting, she told Shelton that if he could not get her a pay
raise, she was giving 2 weeks’ notice of her intention to leave
Respondent.
The General Counsel alleges in paragraph 17 of the com-
plaint that Workman was terminated on September 4 because
she formed, joined, and assisted the Union and/or engaged in
concerted activities. The Responded contends that Workman
resigned her employment on September 4, and in any event it
was not aware of any protected conduct involving Workman.
The meeting held on September 4 was called by Tony Bucci
to see if he could work things out with the truck drivers once he
learned that they had signed union authorization cards at Solo-
mon’s Mine. As I found earlier, Bucci during the course of the
meeting promised the truckdrivers $1-an-hour raise if they
would withhold their support for the Union. Workman credibly
testified that she initially went to the September 4 meeting to
learn more about the Union so she could inform Lane what took
place, and after she learned about the possibility of a pay raise
announced by Tony Bucci, she responded to a question of Rob-
ert Bucci that she wanted to make more than 6 bucks an hour.
Immediately after the meeting ended, Shelton told Workman
to punch out. In response to her question of why she should
punch out, Shelton told her “that because of the strike there
would be no work.” On the next day, September 5, Shelton
told Workman that the trucks were still down and they did not
want her coming into work.
I find that the Respondent discharged Workman because she
engaged in concerted activity protected under Section 7 of the
Act. The action which precipitated Workman’s discharge, i.e.,
her statement about seeking a pay increase and her support for
the truck drivers was one step in her efforts and those of the
truck drivers to seek a little more money, additional benefits,
and time and a half for overtime.
Respondent’s defense that Workman resigned her employ-
ment on September 4 does not withstand scrutiny. First, while
Workman gave notice of her intention to leave Respondent, she
still had one week remaining on the 2 weeks’ notice she gave to
John Shelton. Second, the payroll records introduced in evi-
dence show that the truck drivers returned to work on Septem-
ber 4, and completed their regular workday. Likewise, the
records show that the truckdrivers continued to work on a regu-
lar basis throughout the months of September and October
1996. Thus, the statement by Shelton that the trucks were still
down and Workman was not needed to perform work is contra-
dicted and without foundation.
While I conclude that Workman was terminated for an illegal
reason under the Act, I cannot find in accordance with the posi-
tion of the General Counsel, that it was based on her union
activities. In this regard, at the time of her termination on the
morning of September 4, Workman had not engaged in any
union activities. As a mechanic, she did not sign a union card
STATE MATERIALS, INC. 1327
at Solomon’s Mine and only learned about the union campaign
on the morning of September 4 when the truckdrivers returned
from the Mine. She testified that no one in management knew
that she went to the union hall during the afternoon of Septem-
ber 4 and signed a union card. For all of those reasons, I rec-
ommend that the 8(a)(3) allegation regarding Workman be
dismissed.
In sum, I find that the Respondent violated Section 8(a)(1) of
the Act when it terminated Workman because she engaged in
protected concerted activity. B & D Custom Cabinets, 310
NLRB 817 (1993).
6. The written warning and reduction in hours for
Gregg I. Griffin
Gregg I. Griffin commenced work as a truckdriver for Re-
spondent on June 29 and continued working until November
23. Before Griffin accepted the job at Respondent, he told John
Shelton that he could not work on Sundays and if that was a
problem he would look elsewhere for employment. Shelton
told him that would not be a problem.
On September 4, Griffin signed a union authorization card at
Solomon’s Mine but did not attend the truckdrivers’ meeting on
that date because he had a flat tire on the way back from the
Mine. When he returned to the plant, he became aware that all
the truckdrivers had been fired for joining the Union, that Tony
Bucci was starting a new company and the drivers were going
to receive a $1-an-hour raise.
Griffin testified that on September 5 and 6, after coming into
work, Respondent told him to go home. He also said that be-
tween September 6 and November 14, his work hours were
reduced in comparison to his work hours prior to September 4.
In mid-October 1996, Griffin testified that Tony Bucci told
him that he would have to sign a paper stating that he would
work every Sunday or be fired. Griffin signed the paper “under
protest” but was told by administrative assistant Robert Kathu-
ria that he could not sign in that manner and a new paper was
prepared which he signed. Griffin did not have a copy of the
paper.
The General Counsel alleges in paragraph 18 of the com-
plaint that the written warning committing Griffin to work
each Sunday or be terminated and the reduction of his work
hours after September 4, was undertaken because Griffin joined
and assisted the Union. The Respondent contends that Griffin
was never given a written warning and the payroll records
confirm that Griffin did not have a reduction in his work hours
after September 4, nor was he required to or did he work every
Sunday.
Under Wright Line, supra, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
actions. I am not persuaded by the unrebutted testimony of
Griffin that such a showing has been established.
First, Griffin testified that he was told to go home on Sep-
tember 5 and 6. Contrary to this testimony, the payroll records
show that Griffin worked and was paid for a total of 15 hours
on these days. Griffin further testified that he was forced to
sign a paper stating he would have to work every Sunday or be
fired. My review of the payroll records after September 4
through the week ending November 16, show that Griffin
worked only one Sunday, on October 27. Considering this
evidence, I do not credit Griffin’s testimony that he was forced
to sign a paper stating he would have to work every Sunday or
be fired. Moreover, Griffin could not produce such a paper.
Lastly, Griffin testified that continuously after September 4, his
hours and days of work were reduced. He estimated that start-
ing with the week of September 15, his hours went downhill
and the most he worked was 35 hours each week. The General
Counsel did not introduce any documentary evidence to con-
firm the number of hours Griffin worked either before or after
September 4, and while Griffin testified that he worked 10 to
12 hours 5 or 6 days each week prior to September 4, I am sus-
picious of this estimate. My review of limited payroll records
introduced in evidence by Respondent for the period before
September 4, show that Griffin worked 36.75 hours during the
week ending September 7, which is substantially below his
estimate of 60 to 70 hours. After September 4, the payroll re-
cords show that Griffin worked 5 or 6 days each week on a
regular basis. For example, for the weeks ending September
14, 21, and 28, he worked 47, 64.75, and 51.75 hours. The
payroll records for workhours during a number of weeks in
October 1996, also show that Griffin worked in excess of 40
hours each week. Thus, it cannot be established that Griffin’s
hours or days of work were substantially reduced after Septem-
ber 4. Indeed, the records confirm that Griffin regularly
worked in excess of 35 hours each week after September 15,
which was his estimate of the maximum hours he worked each
week after that date.
I also note that other then signing a union authorization card
on September 4, Griffin did not engage in any other union ac-
tivity. He did not attend the truckdrivers meeting on September
4 nor did he engage in any conversations about the Union with
Respondent’s managers.
In sum, I do not find that Griffin suffered a reduction of his
work hours or days of work after September 4 nor do I find that
Griffin was required to sign a paper requiring him to work
every Sunday or be fired. Likewise, I do not find that Griffin’s
union activities were in any way related to the allegations in
paragraph 18 of the complaint and I recommend that they be
dismissed.
III. THE UNION OBJECTIONS
The Union objected on a number of grounds to conduct that
they claim affected the results of the election. As set forth in
the Board’s February 27, 1997 order consolidating cases, the
six union objections to the conduct of the election are co-
extensive and encompassed by the complaint in Case 8–CA–
28582.
Considering my earlier findings, which specifically address
these allegations in the context of the allegations set forth in the
complaint in Case 8–CA–28582, I conclude that Respondent’s
actions destroyed the laboratory conditions and precluded a free
and fair election.
IV. THE CHALLENGED BALLOTS
There were eight challenged ballots during the October 25
election. Three of the challenged ballots involved the termina-
tion’s of employees Sandra Workman, a/k/a Raven Black,
Randy Anzevino and James Thomas. Considering my prior
findings that these employees were terminated either because of
protected concerted and/or union activities, I conclude that their
names should have appeared on the list of eligible voters and
recommend if necessary, that they be given the opportunity to
vote in any subsequent election. Therefore, I overrule the chal-
lenges, direct that their ballots be counted and a revised tally of
ballots issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1328
A. John Shelton
The ballot of John Shelton was challenged by the Union be-
cause he allegedly is a supervisor. Respondent takes the posi-
tion that Shelton is a mechanic and uses the tools of his trade
and performs the same physical labor as expected of other me-
chanics. It also asserts by virtue of his experience and length of
service with Respondent, he may be viewed as having addi-
tional responsibilities, but he does not exercise any supervisory
functions including hiring or firing or assigning or directing the
work of employees.
Randy Anzevino credibly testified that when he applied for a
job at Respondent, he was interviewed and hired by Shelton.
Likewise, employee James Thomas testified that he was inter-
viewed and hired by Shelton and it was Shelton who gave him
permission to put a CB radio in his truck. Gregg I. Griffin
credibly testified that when he first applied for a job at Respon-
dent he told Shelton that he could not work on Sundays because
of personal and religious reasons and if this was not acceptable,
he would look for work elsewhere. Shelton told Griffin that
this would not be a problem. Additionally, Shelton told em-
ployee Kevin L. Lane that he did not have to work Sundays
because of religious reasons. Anzevino, James G. Marino, and
Raven Black all testified that Shelton was the yard foreman and
frequently told them what to do on a daily basis and often di-
rected their work. Employees Marino, Thomas, and Lane all
credibly testified that Shelton worked out of a little office next
to the garage.
Raven Black testified that after the truckdrivers’ meeting
ended on September 4, Shelton told her to clock out and go
home because of the strike and on September 5, Shelton told
her the trucks were still down and they did not want her to
come into work. Black also testified that it was Shelton to
whom she gave her 2 weeks’ notice to resign because of his
inability to get her a pay raise. Likewise, employee Lane testi-
fied that it was Shelton who he called on the evening of Sep-
tember 4 concerning whether he should come into work the
next day. Shelton told him not to come in but to call every
morning.
Section 2(11) of the Act provides:

The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibility to direct them, or to adjust
their grievances, or effectively to recommend such action if in
connection with the forgoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use
of independent judgment.

The status of a supervisor under the Act is determined by an
individual’s duties, not by his title or job classification. It is
well settled that an employee cannot be transformed into a su-
pervisor merely by the vesting of a title and theoretical power
to perform one or more of the enumerated functions in Section
2(11) of the Act. To qualify as a supervisor, it is not necessary
that an individual possess all of these powers. Rather, posses-
sion of any one of them is sufficient to confer supervisory
status. However, it is well recognized that Section 2(11)’s
disjunctive listing of supervisory indicia does not alter the es-
sential conjunctive requirement that a supervisor must exercise
independent judgment in performing the enumerated functions.
NLRB v. Wilson-Crissman Cadillac, 659 F.2d 728 (6th Cir.
1981).
In my opinion, the General Counsel has established that
Shelton possessed authority to use independent judgment with
respect to the exercise of some of the specific authorities listed
in Section 2(11) of the Act. For example, Shelton was involved
in the interviewing and hiring of employees at Respondent and
informed two employees that they did not have to work on
Sundays to retain their employment status. Such actions defi-
nitely require the use of independent judgment. Shelton was
known to employees as the yard foreman and worked out of a
small office near the garage. He assigned work to a number of
employees and often directed them in the performance of their
job duties. He instructed employee Raven Black to clock out
and go home because of the strike and informed employee
Kevin L. Lane not to come in for work on September 5, and to
call each morning as to whether work was available.
Accordingly, I conclude that Shelton is a statutory supervisor
and recommend that the challenge to his ballot be sustained.
Debber Electric, 313 NLRB 1094 (1994).
B. John C. and John E. Berardi
The ballots of John C. and John E. Berardi were challenged
by the Union because it was alleged that neither individual was
employed by Respondent. The Respondent contends that both
individuals are part-time mechanics and are employed on a
regular basis.
There was not a great deal of testimony introduced at the
hearing concerning the Berardis. While the General Counsel
elicited testimony from a number of employees concerning
their status, the Respondent did not call the Berardis to testify
nor did it introduce payroll or other personnel records to sup-
port their employee status.
Truckdriver James Thomas testified that the Berardi family
owned a garage repair shop in North Lima, Ohio, and John C.
and John E. Berardi worked in the family business. Respon-
dent mechanics James G. Marino and Raven Black credibly
testified that during their employment at Respondent, they
never saw or worked with John C. or John E. Berardi in the
mechanic shop. They both testified, however, that on occasions
some of Respondent’s trucks were sent to the Berardis garage
for repair. Marino further testified that he once attempted to
repair a crane and after examining it, determined that the injec-
tors had come loose and he was unable to repair it. In order to
correct the problem, Respondent hired the Berardis who came
to the facility and completed the job. Bonnie Kuhn, a truck-
driver called to testify by Respondent, stated that she was aware
that the Berardis were called to the plant to repair a damaged
conveyer. She also testified that the Berardis did some welding
at the plant on several occasions. She could not state, however,
that she saw John C. or John E. Berardi on a regular basis at the
facility or that they were regular part-time employees of Re-
spondent.
Prior to the hearing in this matter, the General Counsel
served a subpoena duces tecum on Respondent and during the
initial stages of the proceeding, Tony Bucci agreed to turn over
certain documents to the General Counsel. As is pertinent here,
the Respondent agreed to turn over the personnel files, job clas-
sifications, and all payroll records for the Berardis. Unfortu-
nately, these materials were not turned over to the General
Counsel during the course of the hearing. I find that such re-
cords are necessary and relevant and should have been turned
over to the General Counsel. The Respondent’s refusal to pro-
vide these documents leads me to conclude that they would be
STATE MATERIALS, INC. 1329
adverse to its interests. Based on that fact and in conjunction
with the credible testimony of the above-noted employees that
the Berardis did not work in the mechanic shop on a regular
basis nor were they observed on the premises with any degree
of consistency, I find that John C. and John E. Berardi were not
regular part-time employees of Respondent. I further find that it
is reasonable to conclude that the Berardis are independent
contractors to whom trucks and other machinery is sent on a
case by case basis for repairs, the majority of which is per-
formed at the Berardis garage and not on Respondent’s prem-
ises. See Schoolman Transport System, 319 NLRB 701 (1995).
Therefore, I recommend that the challenges to their ballots be
sustained.
C. Dan (Dave) Bucci III
The Board agent challenged the ballot of Dan (Dave) Bucci
III because his name did not appear on the list of eligible vot-
ers. The Union takes the position that Bucci is a heavy equip-
ment operator and is related to one of Respondent’s owners,
Dan Bucci II, his father. The Respondent asserts that Bucci is a
mechanic and is eligible to vote in the election.
The Respondent did not call Bucci as a witness nor did it
provide the General Counsel with any subpoenaed documents
involving his personnel files or job classification. Raven Black
credibly testified that Bucci was not a mechanic and she never
worked with him in the shop. Rather, she saw him drive a front
loader. Another witness called by the Respondent, Clarence
Huckaba Sr., testified that Bucci is not a mechanic at Respon-
dent’s facility.
Although the Union alleges that Bucci is the son of Dan
Bucci II, one of the owners of Respondent, there was no evi-
dence introduced to conclusively establish that he was an owner
of Respondent. While Dan Bucci II attended the September 4
truck drivers meeting, he did not participate in the dialogue and
according to employee witnesses did not make any statements
during the course of the meeting. Likewise, the testimony of
James Thomas that Dan Bucci II signed his paychecks is not
conclusive evidence to establish that he is an owner of Respon-
dent nor is it consistent with the testimony of other witnesses
who asserted that Frank Aquila signed employees’ paychecks.
Thus, the record evidence is inconclusive to exclude Bucci as
an eligible voter based on his relationship to Dan Bucci II.
The parties stipulated that the appropriate unit in this case is
all truck drivers and mechanics employed at the Respondent. I
conclude that the Respondent did not provide the General
Counsel with the subpoenaed documents relating to the status
of Bucci because they would be adverse to its interests. Rely-
ing on that fact and based on the unrebutted testimony of em-
ployees Black and Huckaba, I find that Bucci is neither a me-
chanic nor a truck driver at Respondent’s facility. Since Bucci
drives a front loader, he does not hold a position included in the
parties stipulated appropriate unit, and therefore, I recommend
that the challenge to Bucci’s ballot be sustained.
D. Bruce Pierce (Piene)
The ballot of Bruce Pierce (Piene) was challenged by the
Board agent conducting the election since his name did not
appear on the list of eligible voters. The Union has taken the
position that Pierce is a supervisor while the Respondent al-
leges that he is employed as a truckdriver.
At the hearing before me, there was no evidence proffered to
indicate that Pierce was either a supervisor or a truck driver. I
find that a prima facie showing was made that Pierce was not
eligible to vote since his name did not appear on the list of eli-
gible voters and, as no countervailing evidence was offered to
rebut that showing, I recommend that the challenge to his ballot
be sustained. See Romal Iron Works Corp., 285 NLRB 1178,
1185 (1987).
I note that it is likely that the challenged votes cast by the
three discriminates discussed above will be in favor of repre-
sentation by the Union and, in that event, the challenged ballot
of Pierce will not be determinative.
In sum, I recommend that the ballots of Sandra Workman,
a/k/a Raven Black, Randy Anzevino, and James Thomas be
opened and counted, and that a revised tally of ballots issue. If
the revised tally of ballots shows that a majority of votes has
been cast for the Union, then the Regional Director for Region
8 should issue a certification of representative. If the revised
tally shows that a majority has not been cast for the Union, the
election shall be set aside.
V. THE REPRESENTATION CASE AND THE GISSEL REMEDY
With the finding of 8(a)(1) violations and coextensive objec-
tionable conduct occurring prior to the October 25 election, I
conclude that the election was conducted in an atmosphere that
precluded a fair election and the results of the election must be
set aside.
The question remains whether a rerun election could validly
demonstrate the sentiments of the unit employees or whether a
bargaining order is more appropriate.
In determining whether a bargaining order is warranted to
remedy the Respondent’s unfair labor practices, it is appropri-
ate to apply the test set forth in NLRB v. Gissel Packing Co.,
395 U.S. 575 (1969). There the Court identified two categories
of cases in which a bargaining order would be appropriate ab-
sent an election. The first category of cases involves “excep-
tional cases” marked by unfair labor practices that are so “out-
rageous” and “pervasive” that traditional remedies cannot erase
their coercive effects, thus rendering a fair election impossible.
The second category involves “less extraordinary cases marked
by less pervasive practices which nonetheless have a tendency
to undermine majority strength and impede election processes.”
In this second category of cases, the Court reasoned that the
“possibility of erasing the effects of past practices and of ensur-
ing a fair election . . . by the use of traditional remedies, though
present, is slight and that employee sentiment once expressed
[by cards] would on balance, be better protected by a bargain-
ing order.” Id. at 613, 614–615; Massachusetts Coastal Sea-
foods, 293 NLRB 496, 498 (1989.
In this case, the Respondent’s misconduct involves the type
of severe and pervasive coercion that has lingering effects and
that is not readily dispelled by time. The participation of the
Respondent’s top management “show[s] that it is deeply com-
mitted to its anti-union position, a commitment from which it is
not likely to retreat.” Salvation Army Residence, 293 NLRB
944, 945 (1989), enfd. 923 F.2d. 846 (2d Cir. 1990). The con-
tinuing presence of Tony Bucci as the Respondent’s principal
manager and chief spokesperson will only serve to reinforce in
the minds of the employees the lingering effects of the Respon-
dent’s violations.
The many unfair labor practices attributed to Tony Bucci oc-
curred within a short timespan, and commenced immediately
after the Respondent had learned of the union organizing cam-
paign. In fact, the discharge of James Thomas strategically
came immediately after he served as the truckdrivers spokes-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1330
person at the September 4 meeting and presented the demands
of the employees to resolve the matter. The Respondent’s un-
lawful conduct, by Tony Bucci, encompassed a wide range of
activity, including coercive interrogation, threats of discharge
and plant closure, a decrease of wages, loss of work, and a
promise of a wage increase. Four employees, approximately 20
percent of a small bargaining unit, were direct targets of this
illegal conduct.
Furthermore, even if the Respondent’s conduct does not fall
within Gissel category one, the unfair labor practices certainly
qualify as “less pervasive practices which nonetheless still have
the tendency to undermine majority strength and impede the
election process.” Gissel Packing, supra at 614. Thus, the dis-
charge of union adherents has long been considered a clear
violation of the act because of its lasting effect on the election
process. The Board has found that such “hallmark” violations
committed by high company officials in a small unit have a
tendency to undermine majority strength and impede the elec-
tion process. Airtex, 308 NLRB 1135 (1992). Likewise, the
Board has held with court approval that threats of plant closure
and discharge are “hallmark” violations which are “among the
most flagrant” of unfair labor practices. Action Auto Stores,
298 NLRB 875 (1990) (citing Indiana Cal-Pro. Inc. v. NLRB,
863 F.2d 1292, 1301–1302 (6th Cir. 1988), enfg. 287 NLRB
796 (1987)).
Under these circumstances, I conclude that the possibility of
erasing the effects of the Respondent’s unfair labor practices by
traditional remedies, and the conducting of a second rerun elec-
tion is slight. I further find that the employee’s representational
desires, as expressed by authorization cards would, on balance,
be better protected by a bargaining order and that, therefore, a
bargaining order is warranted under either category one or two
of the Gissel standard.7
In sum, I find that a bargaining order is appropriate in the
circumstances of this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All truck drivers and mechanics, excluding all office
clerical employees and professional employees, guards
and supervisors as defined in the Act, and all other em-
ployees.

4. Commencing about September 4, 1996, and continuing
thereafter, the Union was designated by a majority of Respon-
dent’s employees in the bargaining unit described above as the
exclusive collective-bargaining representative.
5. Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act by interrogating employ-

7 I find that 18 of 24 employees in the appropriate unit signed au-
thorization cards as of September 4. Thus, in agreement with the Gen-
eral Counsel, I conclude that a majority of the unit signed valid authori-
zation cards and designated the Union as their representative for the
purposes of collective bargaining with Respondent. I also grant the
General Counsel’s request to withdraw the portions of the complaint
alleging certain violations of Sec. 8(a)(1) and (5) of the Act.
ees concerning their union sentiments, threatening not to give
work to employees who promoted the Union, threatening to
terminate employees and to close the facility, threatening em-
ployees with a decrease in wages and loss of their jobs and
offered employees a wage raise to discourage them from engag-
ing in union activities.
6. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act by discharging em-
ployees Randy Anzevino and Sandra Workman a/k/a Raven
Black for engaging in protected concerted activities and Section
8(a)(1) and (3) of the Act by discharging employees James
Thomas, Kevin L. Lane, and James G. Marino for engaging in
union activities.
7. By refusing to recognize and bargain with the Union as
the exclusive bargaining representative of its employees in the
appropriate unit set out above on and after September 4, 1996,
while engaging in the unfair labor practices set out above, Re-
spondent has engaged in, and is engaging in, unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
of the Act.
8. The unfair labor practices described above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees James Thomas, Randy Anzevino, Sandra Workman a/k/a
Raven Black, Kevin L. Lane, and James G. Marino, must offer
each of them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), plus interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act and that a bargaining order is appropriate in
the circumstances of this case, consistent with the Board’s pol-
icy set forth in Gissel, supra, I shall recommend that the bar-
gaining order be made effective from September 4, 1996, the
date of the Union’s majority status.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The Respondent, State Materials, Inc., Girard, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning their union member-
ship, sympathy, and activity.
(b) Threatening employees with closure of the facility in re-
taliation for the employees’ union activities.
(c) Threatening employees with loss of work in retaliation
for their union activities.
8 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.
STATE MATERIALS, INC. 1331
(d) Offering employees a wage raise in order to discourage
them from engaging in union activities.
(e) Iinforming its truckdrivers that they had been terminated
for engaging in union activities.
(f) Threatening employees with a decrease in wages if they
selected the Union as their bargaining representative.
(g) Threatening employees with loss of their jobs should they
select the Union as their bargaining representative.
(h) Discharging or otherwise discriminating against any em-
ployee for supporting Teamsters Local 377 a/w International
Brotherhood of Teamsters, AFL–CIO or any other union.
(i) 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 from the date of this Order, offer employ-
ees James Thomas, Randy Anzevino, Sandra Workman a/k/a
Raven Black, Kevin L. Lane, and James G. Marino full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make whole employees James Thomas, Randy Anzevino,
Sandra Workman a/k/a Raven Black, Kevin L. Lane and James
G. Marino for any loss of earnings and other benefits suffered
as a result of the discrimination against them in the manner set
forth in the remedy section of the decision.
(c) Recognize and, on request, bargain in good faith with
Teamsters Local 377 a/w International Brotherhood of Team-
sters, AFL–CIO as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate bargaining unit set
forth below, and, if an understanding is reached, reduce the
agreement to writing and sign it. The appropriate unit is:

All truck drivers and mechanics, excluding all office
clerical employees and professional employees, guards
and supervisors as defined in the Act, and all other em-
ployees.

(d) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges or written
warnings and notify the employees in writing that this has been
done and that the discharges or written warnings will not be
used against them in any way.
(e) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(f) Within 14 days after service by the Region, post at its fa-
cility in Girard, Ohio, copies of the attached notice marked
“Appendix.”9 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-

9 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.”
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, 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 October 7, 1996.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
IT IS FURTHER ORDERED that the ballots of employees Sandra
Workman, a/k/a Raven Black, Randy Anzevino, and James
Thomas be opened and counted, and that a revised tally of bal-
lots issue in Case 8–RC–15431.
IT IS FURTHER ORDERED that should the revised tally of bal-
lots show that a majority of votes has been cast for the Union,
then the Regional Director for Region 8 shall issue a certifica-
tion of representative. If the revised tally shows that a majority
has not been cast for the Union, the election shall be set aside.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT threaten our employees with discharge and clo-
sure of our business if the employees select Teamsters Local
377 a/w International Brotherhood of Teamsters, AFL–CIO as
their bargaining representative, coercively interrogate our em-
ployees about union activities, threaten employees with loss of
work in retaliation for their union activities, offer employees a
wage raise in order to discourage them from engaging in union
activities and threaten our employees with loss of their jobs or a
decrease in wages if they select the Union as their bargaining
representative.
WE WILL NOT discriminatorily discharge our employees be-
cause they join, support, or assist the Union or because they
engage in other protected and concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer James Thomas, Randy Anzevino, Sandra Workman a/k/a
Raven Black, Kevin L. Lane, and James G. Marino full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make the above employees whole for any loss of
earnings and other benefits resulting from their discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to unlawful discharges or
written warnings for James Thomas, Randy Anzevino, Sandra
Workman a/k/a Raven Black, Kevin L. Lane, and James G.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
Marino, and WE WILL, within 3 days thereafter, notify each of
them in writing that this has been done and that the discharges
or written warnings will not be used against them in any way.
WE WILL, on request, bargain with the Union and put in writ-
ing and sign any agreement reached on terms and conditions of
employment for our employees in the bargaining unit.
The appropriate bargaining unit is as follows:

All truck drivers and mechanics, excluding all office
clerical employees and professional employees, guards
and supervisors as defined in the Act, and all other em-
ployees.
STATE MATERIALS, INC.