Wheeling Brake Block Mfg. Co.

National Labor Relations Board - Board Decisions

May 23, 2008

352 N.L.R.B. 489 (N.L.R.B. 2008)

WHEELING BRAKE BLOCK MFG. CO.
352 NLRB No. 67
489
Wheeling Brake Block Manufacturing Company and
Wheeling Brake Band & Friction Manufactur-
ing Company and Retail, Wholesale, and De-
partment Store Union, Local No. 379, and The
United Food and Commercial Workers Union.1
Cases 8–CA–34764 and 8–CA–35543
May 23, 2008
DECISION AND SUPPLEMENTAL ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On December 9, 2005, Administrative Law Judge
David I. Goldman issued the attached bench decision.
On November 21, 2006, the National Labor Relations
Board issued an Order Remanding Proceeding to the
judge for receipt of evidence “bearing on the issue of the
proper identity of the Respondent” and for the issuance
of a supplemental decision and recommended supple-
mental Order. On March 14, 2007, the judge reopened
the record pursuant to the November 21, 2006 Order. On
May 31, 2007, the judge issued the attached supplemen-
tal decision. Thereafter, Respondent Wheeling Brake
Band & Friction Manufacturing Company filed excep-
tions to the judge’s supplemental decision, and a support-
ing brief. The General Counsel filed an answering brief,
and Respondent Wheeling Brake Band & Friction Manu-
facturing Company filed a reply brief.2
The National Labor Relations Board3 has considered
the bench decision, the supplemental decision, and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions as modified4 and to adopt the recommended sup-
plemental Order as modified.5

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers from the AFL–CIO effective
July 29, 2005.
2 Respondent Wheeling Brake Block Manufacturing Company did
not file exceptions to the judge’s supplemental decision.
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
4 Because the General Counsel did not issue and serve an amended
complaint on Wheeling Brake Band & Friction Manufacturing Com-
pany, out of an abundance of caution we do not at this time pass on
whether it is liable as a single employer with Wheeling Brake Block
Manufacturing Company for the unfair labor practices found in this
case. Accordingly, we shall delete references to Wheeling Brake Band
& Friction Manufacturing Company in the Conclusions of Law, Order,
and notice. The General Counsel may, however, plead and litigate the
question of Wheeling Brake Band & Friction Manufacturing Com-
pany’s derivative liability during the compliance stage of this proceed-
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 1.
“1. Respondent Wheeling Brake Block Manufacturing
Company is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended supplemental Order of the administrative law
judge as modified below and orders that the Respondent,
Wheeling Brake Block Manufacturing Company, Bridge-
port, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraph. 2(c) and reletter
the subsequent paragraphs.
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful layoffs
of Robert Maxwell, Timothy Colley, Ronald McKenzie,
John Cumberlidge, Greg Brawdy, and Richard Palmer,
and within 3 days thereafter notify them in writing that
this has been done and that the layoffs will not be used
against them in any way.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT layoff, fail to recall, or otherwise dis-
criminate against you for supporting the Retail, Whole-
sale, and Department Store Union, Local 379 and the

ing. See, e.g., George C. Shearer Exhibitors, 246 NLRB 416 fn. 3
(1979), enfd. mem. 636 F.2d 1210 (3d Cir. 1980)
5 In light of the disaffiliation of the United Food and Commercial
Workers from the AFL–CIO, we shall modify the judge’s notice to
delete the reference to the AFL–CIO. We shall also modify the rec-
ommended Order and notice to include an expunction remedy, and
shall correct an inadvertent omission in the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
United Food and Commercial Workers Union, or any
other union.
WE WILL NOT tell employees that we are going to get
rid of the Union and replace it with a union that we con-
trol.
WE WILL NOT solicit employees to assist us in getting
rid of the Union so that other employees will more read-
ily accept the loss of the Union.
WE WILL NOT implicitly or explicitly promise any em-
ployee that by opposing the Union the employee will be
recalled from layoff.
WE WILL NOT maintain and enforce an overly broad
prohibition on union activity on our premises.
WE WILL NOT repudiate the collective-bargaining
agreement, including the seniority, pension contribution,
and dues checkoff provisions of the collective-bargaining
agreement.
WE WILL NOT refuse to recognize and bargain a succes-
sor collective-bargaining agreement with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Greg Brawdy and Richard Palmer full reinstate-
ment 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 Robert Maxwell, Timothy Colley,
Ronald McKenzie, John Cumberlidge, Greg Brawdy, and
Richard Palmer whole, with interest, for any loss of earn-
ings and other benefits resulting from their layoff.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful layoffs of Robert Maxwell, Timothy Colley, Ronald
McKenzie, John Cumberlidge, Greg Brawdy, and Rich-
ard Palmer, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the lay-
offs will not be used against them in any way.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All production and maintenance employees employed
by us at our Bridgeport, Ohio facility, excluding all of-
fice clerical employees and all professional employees,
guards, and supervisors as defined by the Act.
WE WILL make all affected employees whole, with in-
terest, for any loss of earnings or benefits resulting from
the repudiation of the expired collective-bargaining
agreement, including the repudiation of the seniority and
pension provisions of the collective-bargaining agree-
ment.
WE WILL reimburse the Union, with interest, for dues
we were required to withhold and transmit under the col-
lective-bargaining agreement.
WE WILL make all contributions to the Union-Industry
pension plan that we were required to make under the
collective-bargaining agreement, including any addi-
tional amounts due the plan on account of our failure to
make these contributions at the time they were owed.
WE WILL reimburse unit employees, with interest, for
any expenses they have incurred because of our failure to
make required contributions to the Union-Industry pen-
sion plan.
WE WILL rescind the rule in the expired collective-
bargaining agreement prohibiting union activity on our
premises and WE WILL advise you that this has been done
and that you are free to engage in union activity at our
facility during nonworking time and in nonworking ar-
eas, and in any other areas and other times on such terms
as other nonwork-related activity is permitted, without
retribution.
WHEELING BRAKE BLOCK MANUFACTURING
COMPANY
Thomas M. Randazzo, Esq. for the General Counsel.
Henry A. Arnett, Esq. for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
DAVID I. GOLDMAN, Administrative Law Judge. This case
was tried in St. Clairsville, Ohio, on November 16, 2005. The
charge in Case No. 8–CA–34764 was filed on January 7, 2004,
and amended on February 27 and May 24, 2004, by the Retail,
Wholesale, and Department Store Union, Local 379, and the
United Food and Commercial Workers, AFL–CIO (hereinafter
Union or Charging Party). An additional charge was filed in
Case 8–CA–35543 on January 6, 2005, by the Union. The con-
solidated complaint issued March 31, 2005. The Respondent,
Wheeling Brake Block Manufacturing, Co., filed a timely an-
swer on April 8, 2005.
Respondent did not appear at the hearing despite having re-
ceived repeated notification of the time and place of the hearing
(GC Exh. 3).1 After hearing the testimony of the General Coun-

1 This includes notification I provided to Respondent’s general man-
ager, Robert Burgess. After Respondent failed to make a representative
available for an October 28, 2005 pretrial telephone conference I had
attempted to schedule, I faxed and mailed to Burgess the letter I have
placed in the record as ALJ Exh. 1 (along with the fax receipt confirma-
tion notices). The letter reiterated that the hearing in this case was
scheduled for November 16, 2005, informed Burgess that the confer-
ence call was rescheduled for November 4, and provided contact in-
formation for my office. Neither Burgess nor any representative of the
Respondent contacted my office and when my assistant placed the
WHEELING BRAKE BLOCK MFG. CO. 491
sel’s witnesses and considering the documentary evidence and
oral argument of Counsel for the General Counsel and Counsel
for the Charging Party, I recessed the hearing until November
18, 2005, at which time I rendered a bench decision in accor-
dance with Section 102.35(a)(10) of the Board’s Rules and
Regulations.
I hereby certify the accuracy of the November 18, 2005 tran-
script, pages 1 through 35, as corrected, containing my bench
decision. A copy of that portion of the transcript is attached as
Appendix A. Corrections to the transcript are reflected in the
attached Appendix C [omitted from publication].
In supplement to the attached bench decision, I add the fol-
lowing. The General Counsel alleged, and I have found, that
two conversations that Plant Manager and Owner Robert Bur-
gess had with Local Union Official Palmer, on July 15 and 18,
2003, were coercive and violative of Section 8(a)(1). As recited
in the bench decision, on July 15, when Palmer came to the
plant to get his layoff notice, Burgess initiated a conversation
with Palmer in which he solicited Palmer “to get rid of the Un-
ion,” emphasizing, as Palmer credibly testified, that if “I would
get rid of the Union, the rest of the people would follow in my
steps. They wouldn’t argue about it.” (Tr. 31, 32.)2 As demon-
strated by Burgess’ remarks 3 days later, the July 15 comment
was part of an effort to induce Palmer to assist Respondent’s
plan to get rid of the Union. On July 18, Palmer returned to the
plant to meet with Burgess regarding the failure of the Respon-
dent to recall employees back to work in order of seniority.
Burgess again raised the subject of getting rid of the Union.
Burgess said “that he was going to get rid of the Union in order
to keep the ones he wanted” (Tr. 38–39), and added that “we
could have a Union, but the Union there would be all answering
to him, Rob Burgess. He would make final decisions and every-
thing.” (Tr. 32–33.) Given that both the July 15 and 18 remarks
were made to Palmer in the context of the unprecedented lay-
off, I found in the bench decision that “[i]mplicit in these con-
versations [was] that by ingratiating himself with Burgess by
helping to get rid of the union, Palmer’s recall prospects would
be better” (Appendix A at 11). In fact, this link was also made
explicit. Palmer testified that in the July 18 discussion Burgess
“made the reference that he need a mixing man, and if I wanted
to get rid of the Union that he would take me back as a mixing
man.” (Tr. 38.) Thus, I find that Burgess explicitly promised to
recall Palmer if he would oppose the Union, action that Burgess
believed, and told Palmer, would encourage other employees to
accept the Respondent’s effort to “get rid of the Union.” Palmer
did not accept Burgess’ recall offer, and the next time they met
Burgess was adamant that Palmer would not be recalled. (Tr.
42–43.) As noted in the bench decision, Palmer and Brawdy,
the only local union officials at the facility, each of whom was

conference call on November 4, Burgess’ office informed her that
Burgess was unavailable to take the call.
2 W]here an employer solicits employees to campaign against union
representation . . . the Board has consistently held that such solicitation
violates Section 8(a)(1) without reference to whether the solicited em-
ployee’s union sentiments are known to the employer.” Allegheny
Ludlum, Inc., 333 NLRB 734, 741 (2001) (and cases cited therein at n.
55) enfd. Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167 (2002). This
is essentially what Burgess was asking of Palmer on July 15.
solicited by Burgess to get rid of the Union and each of whom
refused to comply, were the only employees never recalled. The
explicit promise of recall to Palmer in exchange for acceding to
Burgess’ demand that he assist in “get[ting] rid of the Union”
further supports the findings in the bench decision that Burgess’
comments to Palmer violated Section 8(a)(1) and that the fail-
ure to recall Brawdy and Palmer violated Section 8(a)(3).
The General Counsel alleged, and I found that the July 14,
2003 layoff was unlawfully motivated and violated Section
8(a)(3) and (1). As noted in the bench decision, any employee
suffering a loss of work as a result of this layoff is a discrimina-
tee. However, as also discussed in the bench decision, the evi-
dence does not show that all employees were laid off. More-
over, the complaint identifies only six specific individuals al-
leged to be among those laid off. Two of them, Brawdy and
Palmer, testified at the hearing. Based on their testimony, and
the documentary evidence, there is no doubt that they were laid
off and never recalled by the Employer. The other four—
Robert Maxwell, Timothy Colley, Ronald McKenzie, and John
Cumberlidge—did not testify. Significantly, the Respondent’s
answer to the complaint admits that each of the four were laid
off. Moreover, as detailed in the bench decision, records pro-
vided by the Respondent to the Region during the investigation
of this case and introduced into evidence as General Counsel’s
Exhibit 30, provide further support for the complaint allegation
that these four employees were laid off. In response to requests
for records showing hours worked since June 2003, the Re-
spondent submitted responses evidencing a diminution of hours
worked for Maxwell and Cumberlidge for the week of July 14,
2003. The response shows no hours worked for Colley the
weeks of July 14, and July 21, 2003, and thereafter documents
a return to full-time hours. The Respondent’s submission does
not show McKenzie working at all until January 19, 2004. In
addition, in GC Exh. 30, the Respondent admits that there were
layoff slips similar to those provided to Brawdy and Palmer
(GC Exhs. 9, 10) for employees Maxwell, Cumberlidge, and
Colley, although the Respondent states that it is unable to locate
the slips. Further, both Palmer and Brawdy testified—albeit
without much specificity—that they thought that with one or
two exceptions (the exceptions they identified were employees
Mellinger and, perhaps, Dymidowski) all the union member
employees had been laid off for at least a short time. Although
the evidence is not entirely clear as to the duration of their lay-
off, all the evidence supports the conclusion that Maxwell,
Colley, McKenzie, and Cumberlidge lost work as part of the
July 14, 2003 layoff.3 If others were also laid off, the evidence
is lacking, and, in any event, the complaint does not identify
any other alleged discriminatees.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the mean-
ing 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 extent of lost wages and benefits suffered by the discrimina-
tees is a matter that can be determined in a compliance proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
3. The Union, at all material times has been the exclusive
collective-bargaining representative, based on Section 9(a) of
the Act, of an appropriate unit for such purposes as defined by
Section 9(b) of the Act of Respondent’s employees at its
Bridgeport, Ohio facility, composed of:
all production and maintenance employees employed by the
Respondent at its Bridgeport, Ohio facility, excluding all of-
fice clerical employees and all professional employees,
guards, and supervisors as defined by the Act.
4. The Union and the Respondent were parties to a collec-
tive-bargaining agreement governing the unit employee’s terms
and conditions of employment that was effective by its terms
from October 1, 2001 through September 30, 2004.
5. By informing an employee that the Respondent was going
to get rid of the Union and replace it with a union controlled by
the Respondent, by soliciting an employee to assist Respondent
in getting rid of the Union, so that others would more readily
accept the loss of the Union, by implicitly and explicitly prom-
ising the employee that for opposing the Union the employee
would be recalled from layoff, and by maintaining and enforc-
ing an overly broad prohibition on union activity on its prem-
ises, the Respondent has been interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
6. By laying off of employees Robert Maxwell, Timothy
Colley, Ronald McKenzie, John Cumberlidge, Richard Palmer,
and Greg Brawdy, on July 14, 2003, and by failing to recall
employees Greg Brawdy and Richard Palmer thereafter, Re-
spondent has been discriminating in regard to the hire or tenure
or terms and conditions of employment of employees, to dis-
courage membership in a labor organization, in violation of
Section 8(a)(1) and (3) of the Act.
7. By laying off and recalling employees without regard to
the seniority provisions of the parties’ collective-bargaining
agreement as of July 14, 2003, by withdrawing from the union-
industry pension fund as of July 10, 2003 and thereafter failing
and refusing to make contractually-mandated pension contribu-
tions to the fund, by failing and refusing to deduct and transmit
dues deductions pursuant to the parties’ collective-bargaining
agreement from July 11, 2003 to September 30, 2004, by repu-
diating the parties’ collective-bargaining agreement as of July
11, 2003, and by failing and refusing the Union’s request to
recognize and bargain with the Union for the purpose of nego-
tiating a successor collective-bargaining agreement, the Re-
spondent has failed and refused to bargain collectively with the
representative of its employees and is in violation of Section
8(a)(1), (5), and (d) of the Act.
8. The unfair labor practices set out in paragraphs 5, 6, and 7,
above, affect commerce 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 therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having unlawfully laid off employees
Robert Maxwell, Timothy Colley, Ronald McKenzie, and John
Cumberlidge, on July 14, 2003, must make each employee laid
off whole for any loss of earnings and other benefits, computed
on a quarterly basis from the date of layoff to the date of a
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). In addition to making them whole in ac-
cordance with the preceding, as to the two employees Respon-
dent has, to date, failed to reinstate, Greg Brawdy and Richard
Palmer, it must immediately offer each of them reinstatement to
the position they occupied prior to the layoff, or to an equiva-
lent position, should their prior position not exist, without
prejudice to their seniority or any other rights or privileges
previously enjoyed.
Respondent shall rescind the unlawful rule prohibiting union
activity on its premises, advise employees it has done so, and
that they may engage in union activity on the premises of Re-
spondent during nonworking time and in nonworking areas, and
in other areas and other times on such terms as other nonwork
related activity is permitted, without retribution.
Having found that the Respondent violated Section 8(a)(1)
and (5) by failing and refusing to make contractually required
payments into the union-industry pension plan, from July 11,
2003, the Respondent shall make the unit employees whole,
with interest, for any loss of benefits they may have suffered as
a result, in the manner prescribed by Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). The
Respondent shall be required to make all contractually required
benefit payments or contributions that were not made from July
11, 2003, including any additional amounts applicable to such
delinquent payments, in accordance with Merryweather Optical
Co., 240 NLRB 1213, 1216 (1979). In addition, the Respondent
shall reimburse unit employees, with interest, for any contribu-
tions they themselves may have made for the maintenance of
the contractual pension funds after Respondent unlawfully dis-
continued contributions to those funds, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981). Respondent shall reimburse the Un-
ion, with interest, for lost dues that should have been paid con-
tractually but were not paid to the Union because of the em-
ployer’s repudiation of the labor agreement including the dues
check off provision, for the term of the agreement, which ran
until September 30, 2004, in the manner set forth in Ogle Pro-
tection Service, supra. All interest due and owing shall be com-
puted as prescribed in New Horizons for the Retarded, supra.
Respondent shall, upon demand of the union, meet and con-
fer with the union for the purpose of bargaining a successor
collective-bargaining agreement .
Respondent shall post an appropriate informational notice, as
described in Appendix A, attached. This notice shall be posted
in the Employer’s facility or wherever the notices to employees
are regularly posted for 60 days without anything covering it up
or defacing its contents. When the notice is issued to the Em-
ployer, it shall sign it or otherwise notify the Region what ac-
tion it will take with respect to this decision.
WHEELING BRAKE BLOCK MFG. CO. 493
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Wheeling Brake Block Manufacturing
Company, Bridgeport, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Informing employees that the Respondent is going to get
rid of the Union and replace it with a union controlled by the
Respondent, soliciting employees to assist Respondent in get-
ting rid of the Union so that other employees would more read-
ily accept the loss of the Union, implicitly and explicitly prom-
ising employees that by opposing the Union the employee
would be recalled from layoff.
(b) Maintaining and enforcing an overly broad prohibition on
union activity on its premises.
(c) Laying off and failing to recall employees to rid itself of
the Union and union supporters.
(d) Failing and refusing to abide by and repudiating the col-
lective-bargaining agreement, including the seniority, pension
contribution, and dues-checkoff provisions of the collective-
bargaining agreement.
(e) Upon request, failing and refusing to recognize and bar-
gain a successor collective-bargaining agreement with the un-
ion.
(f) In like and 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) Offer immediate and full reinstatement to employees
Greg Brawdy and Richard Palmer to their former jobs or, if
those positions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make employees Robert Maxwell, Timothy Colley,
Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Rich-
ard Palmer, whole with interest, in the manner set forth in the
remedy section of this decision and order for any loss of earn-
ings or other benefits resulting from the layoff described in this
decision and order.
(c) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this decision and
Order, for any loss of earnings or benefits resulting from the
repudiation of the collective-bargaining agreement, including
the repudiation of the seniority, pension, and dues- checkoff
provisions of the collective-bargaining agreement.
(d) Reimburse the Union, with interest, for dues it was re-
quired to withhold and transmit under the collective-bargaining
agreement, in a manner described in the remedy section of this
Decision and Order, resulting from the Respondent’s repudia-

4 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.
tion of the dues-checkoff provision of the collective-bargaining
agreement.
(e) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the unit
described in the decision and order concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in signed agreements.
(f) Rescind the rule prohibiting union activity on the prem-
ises of the Employer and advise employees that it has done so,
and that they are free to engage in union activity on the respon-
dent’s facility during nonworking time and in nonworking ar-
eas, and in any other areas and other times on such terms as
other nonwork related activity is permitted, without retribution.
(g) 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, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order. Bryant & Stratton Business Institute, 327 NLRB
1135 (1999).
(h) Within 14 days after service by the Region, post at its fa-
cility in Bridgeport, Ohio, copies of the attached notice marked
“Appendix A”5 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 and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(i) 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.
APPENDIX A
3
B E N C H D E C I S I O N
NOVEMBER 18, 10:00 A.M.
JUDGE GOLDMAN: Good morning. We’re back on the
record. I’m going to issue a bench decision at this time.
Here telephonically are Mr. Arnett for the Charging
Party Union and Mr. Randazzo as counsel for the Acting
General Counsel.
Respondent was contacted this morning but was not
available to participate or be present on this call and so
they are not present.
I’ve heard the testimony in this case and have taken
oral argument and considered the evidence and so I’m now
ready to render a bench decision pursuant to 102.35,

5 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD494
102.35(a), parens, (10) of the Board’s Rules and Regula-
tions.
The charge in 8–CA–34764 was filed on January 7,
2004 and amended February 27th and May 124th, 2004 by
the Retail, Wholesale and Department Store Union Local
379 of the United Food and Commercial Workers Union.
The complaint issued on May 25, 2004 and amended
complaint notice of hearing issued June 8, 2004 against
the Respondent, Wheeling Brake Block 25 Manufacturing.
4
An additional charge was filed in case on January 6,
2005 by the Union and a consolidated complaint issued
March 31, 2005. Respondent, Wheeling Brake Block filed
a timely answer on April 8, 2005.
The complaint alleges that Paragraph 8 what are two
independent 8(a)(1) violations, these are statements by the
Respondent, specifically by its General Manager Robert
Burgess that intended to rid itself of the collective bargain-
ing representative.
Paragraph 9 of the complaint alleges a different kind of
8(a)(1) violation that Respondent maintained and enforced
an overly broad prohibition on union activity. A clause—
and that’s contained in the collective bargaining agree-
ment, the clause that maintains, that, that carries out that
rule.
Paragraph 10 alleges that discriminatory lay off and
recall of employees, that is allegedly an 8(a)(3) violation
but also in contradiction of the party’s collective bargain-
ing agreement and in that way is also alleged to be a viola-
tion of 8(a)(5).
Paragraph 11(a) of the complaint alleges unilateral dis-
continuation of dues deduction from July 11, 2003 to Feb-
ruary 6, 2004, which at trial counsel for General Counsel
moved to amend to continue that
5
violation, to continue to allege that’s a violation not just
through February 6, 2004 but to September 30, 2004, which is
the date of the expiration of the collective bargaining agree-
ment.
Paragraph 11(b) alleges the unilateral withdraw from
the contractual pension plan. It’s alleged in the complaint
that these are violations of 8(a)(5) and further alleged they
collectively, the actions taken by Respondent amount to
repudiation of the party’s collective bargaining agreement
on or about July 11, 2003.
And finally the complaint alleges that Respondent
failed and refused union request to meet and bargain for
successor bargaining agreement, which is alleged in an
8(a)(5) violation.
Counsel for the General Counsel and the Charging
Party who tried this case are already cited in the record
and I’m not going to restate appearances here. As noted
Respondent—as noted in the record
Respondent did not appear for the hearing. I now turn
to the Board’s jurisdiction over this case. The Employer
and Respondent Wheeling Brake Block Manufacturing
admits in its answer and I find that it’s a West Virginia
corporation with an office and facility in Bridgeport, Ohio,
and that it’s
6
engaged in the manufacture of industrial brake parts.
It has also admitted in its answer in the course of its
business it sells and ships goods value in excess of
$50,000 directly to points located outside of the State of
Ohio and I find that Respondent has been and is an em-
ployer engaged in commerce within the meaning of Sec-
tions 2.2, 2.6 and 2.7 of the Act.
I further find that the Charging Party Union has been
and is a labor organization within Section 2.5 of the Act as
is evidenced by the testimony at the hearing and the nu-
merous documents entered into evidence including the
now expired collective bargaining agreement.
The answer of Respondent admits and I find that—
hold that thought—okay strike that. The answer of Re-
spondent admits and I find that Robert Burgess at all mate-
rial times was and is a supervisor within the meaning of
Section 2.11 of the Act and a agent of Respondent within
the meaning of Section 2.13 of the Act.
Turning to the facts of this case. The evidence intro-
duced at the hearing shows the Charging Party has been
the representative bargaining unit of Respondent’s em-
ployees for many years since before
7
1987 according to the testimony. There have been a succes-
sion of labor agreements covering the terms and conditions of
the bargaining unit employees since that time, most recent
was effective October 1st, 2001 through September 30, 2004
and it’s found in the record as General Counsel’s Exhibit 6.
The General Counsel put on three witnesses, employ-
ees Richard Palmer and Greg Brawdy who are active in
and held posts with the Local Union at the facility. In ad-
dition John Moore, an International Union Representative
who serviced the Local Union, testified for the General
Counsel.
Based on my observation of their demeanor while tes-
tifying and in context with the documentary evidence and
the record as a whole I find that all three testified credibly.
There were occasional difficulties remembering certain
events such as dates or when or if a letter was received,
which led to small discrepancies in testimony, not so much
between witnesses but in the testimony of a given witness
but I do not think this distracts from their credibility. I
think it shows their testimony was unscripted and reflected
an honest effort to recount events.
8
The evidence revealed the following: The Employer
announced a temporary shut down of the plant the after-
noon of Friday, July 11, 2003. This occurred an hour or
two before the scheduled three o’clock finish of the work-
day.
The lay off was to be effective Monday, July 14th, al-
though General Manager Burgess actually emerged from
WHEELING BRAKE BLOCK MFG. CO. 495
his office the afternoon of July 11th quote “ranting and
raving” end quote and yelling that he was shutting the
plant down and was not going to run it anymore.
He said he was going to return the business to his fa-
ther. At least some employees left Friday afternoon before
the regularly scheduled end of the work shift at three
o’clock.
Two weeks before the lay off Burgess approached
Brawdy, who was the chairman of the local union at this
facility, and told him that quote “we should get rid of the
union” end quote.
He solicited Brawdy’s assistance in this plan however
Brawdy told Burgess that he wanted to have a union and
refused to assist Burgess.
This conversation is not alleged by the General Coun-
sel as a violation of the Act presumably because it’s out-
side of the 10(b) period, as the
9
initial charge was filed slightly more than six months after this
incident.
For that reason I do not find it to be a violation, how-
ever it is pertinent background that sheds light on subse-
quent events and is indicative of the mind set and motiva-
tions of this Respondent.
Richard Palmer who, in addition to Brawdy was the
only other local union official at the facility, was on vaca-
tion July 10th, 2003. He was called by Respondent’s
management on July 10th and told not to come into work
on Monday, July 14th as scheduled because of the lay off
that would begin that day.
I note to the fact that Palmer was contacted on the 10th
meant that Burgess’ outburst on the afternoon of the 11th
was more for show than an actual outburst of frustration
over circumstances that led him to suddenly to shut down
the operation the afternoon of July 11th.
Other evidence discussed below indicates that on July
10th the Company withdrew from the multi employer pen-
sion fund. This also supports the view that the alleged
mass lay off was planned in advance for July 14th.
I believe the lay off was part of a plan,
10
the interest in which Burgess expressed to Brawdy in late
June or early July of getting rid of the union.
Having failed to enlist Brawdy after the lay off began
Burgess reached out to the other local union official, Rich-
ard Palmer. Palmer was told by Burgess to come to the
plant on July 15th to pick up his lay off slip. At that time
Burgess approached Palmer and asked Palmer to help
quote “get rid of the union”.
He stated to Palmer that if Palmer would support get-
ting rid of the union the other employees would follow his
lead.
On July 18th when Palmer was at the plant again to
discuss the lay offs with Burgess, Burgess once more
raised the subject of the union when they were alone in the
office, in Burgess’ office.
At that time Burgess announced that he 1wanted to get
rid of the union. He stated that employees could have a
union but the union would have to answer to Burgess,
meaning he would make the final decisions for the union.
I find that each of these conversations with Palmer are
violations of Section 8(a)(1). In each instance the subject
of getting rid of the union was pointedly raised by the
highest-ranking management
11
official.
In each instance the context of the conversation about
getting rid of the union was the unprecedented lay off at
the plant.
On July 15th the conversation occurred when Palmer
was ordered by Burgess to come to the work site to pick
up his lay off slip. The July 18th conversation occurred in
Burgess’ office when Palmer came to the plant to discuss
the lay offs.
Implicit in these conversations is that by ingratiating
himself with Burgess by helping to get rid of the union,
Palmer’s recall prospects would be better.
In addition the conversations announced an interest in
intent on Burgess’ part, already in motion for the lay offs,
so the plan to go non-union or to at least replace the union
with some form of Company dominated union. The mes-
sage to Palmer was to join up and implicitly I believe to
suffer the consequences if he did not.
Of course as discussed below both Palmer and Brawdy
paid the price for their failure to accede to Burgess’ de-
mands that they assist his efforts to get rid of the union.
I note that threats to go non-union by
12
management are unlawful and for that proposition cases such
as Shuck Components Systems 230 NLRB 838 at 842 from
1977, Associated Constructors 325 NLRB 998 at Page 1007
from 1998 and American Automatic Sprinkler Systems 323
NLRB 920 at Pages 920 and 921 from 1997.
The comments to Palmer about getting rid of the union
were not friendly discussions and clearly would have a
reasonable tendency to interfere, restraining course of em-
ployees in the exercise of Section 7 rights.
Turning to the lay offs. It’s not insignificant in con-
sidering the lay offs that both local union officials at the
facility were solicited to support getting rid of the union.
Both refused and they are the only employees never to be
recalled notwithstanding their significant seniority.
I think clearly the lay offs can only be understood in
the context of Burgess’ stated desire to rid the plant of the
union.
It’s also notable that the lay off was carried out in a
discriminatory fashion. At the time of lay off there were
11 employees performing bargaining unit work, two of
whom were not in the union. An additional bargaining
unit employee was out on sick leave.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD496
[13
Of the 12 bargaining unit employees only two were
union officials Brawdy and Palmer. They were never re-
called to work despite their being number three and four,
respectively, on the seniority list.
They were the only employees never recalled and, in
fact, most employees were back to work within a week
and some did not miss any work.
Based on testimony and records supplied by the Em-
ployer during the Region’s investigation into the charges
in this case the following information about the lay off can
be reconstructed.
Taking a look at the employees in order of seniority,
James Maxwell was the senior employee. He worked 16
hours the week of July 14th, suggesting that he was laid
off for three days but in any event showing that he re-
turned to work the week of the 14th.
Second employee on the seniority list is Richard Mel-
linger. Mellinger worked 40 hours the week of July 14th.
He does not appear to have been laid off.
Employer Roger Dunn was fifth on the seniority list
after Brawdy and Palmer. He worked 40 hours the week
of July 14th. He does not appear to have been laid off.
Employee William Davenport was on sick
14
leave at the time of lay off and returned directly from sick
leave to full-time employment, without being laid off, the
week of September 8, 2003.
Employee Timothy Calli suffered a two-week lay off
and was recalled to full-time employment the week of July
28th. Employee Richard—Ronald McKenzie. The record
showed he worked full-time as of January 19th, 2004.
Based on the available records he appears to have been
laid off for a significant time, approximately six months.
Employee Victor Dymidawski is next on the seniority
list. He worked a full week of, full—he worked a full 40
hours the week of July 14th and did not suffer a lay off.
Next is employee Cumberlidge who worked eight
hours the week of July 14th and then resumed full-time
work the following week suggesting a four day lay off.
In addition, testimony revealed that two newer em-
ployees hired prior to the lay off and performing bargain-
ing unit work but who were not members of the union
were not laid off on July 14th.
One of these employees is known, was described only
as Dave who performed bargaining work in shipping and
there was an employee, Roger Phillips,
15
who operated a sander and also worked in shipping. Neither
of these two were union members and the testimony showed
that they were not laid off.
In sum what this shows is that of the 12 employees
performing bargaining unit work only two were never re-
called. They, not so coincidentally I believe, were the two
union officials Brawdy and Palmer and both had refused
the Employers entreaties to turn on the union.
After those two the general lay off becomes a much
smaller event. One employee was laid off for six months,
another for two weeks, other than that everyone was work-
ing the week of the, everyone who was working the week
of—strike that.
Other than that everyone who was working on the
week of July 7th was back to work the week of July 14th
and five of the 12 worked 40 hours the week of July 14th
and effectively suffered no lay off.
Under these circumstances I find that the general lay
off was discriminatory and a violation of Section 8(a)(3).
I believe that the announcement of the shut down of opera-
tions on Friday afternoon was a sham designed to allow
the employer to pick and choose which employees would
be back to work Monday and which would be laid off.
16
I should note that arguably the lay offs began Friday
afternoon. It did for Brawdy who went home an hour or
two early that afternoon pursuant to Burgess’ direction.
So arguably even employees who resumed work on
Monday morning and lost no time from work the week of
the 14th were subject to discrimination on the 11th as the
entire shut down was part of an unlawfully scheme but I
think that with the exception of Brawdy the evidence is
too sketchy about who was laid off Friday afternoon.
I conclude, as Palmer was informed that the lay offs
began in substance on Monday with those employees that
the employer decided to lay off.
And as I said the announcement on Friday, July 11th
about a temporary shut down was just cover for the selec-
tive and discriminatory lay off of the following week.
I find that the general lay off was motivated by Bur-
gess’ stated desire to get rid of the union and that Brawdy
and Palmer were singled out for what has been to date a
permanent lay off because of their union activity and their
unwillingness to renounce that union activity.
I think that the right line burden has been
17
met by the General Counsel. That well-known test requires
that the General Counsel make out a prima facie case that the
anti union animus contributed to the adverse employment ac-
tions. The General Counsel does so.
It’s up to the Respondent to persuade that it would
have taken the same action in the absence of protected
conduct.
The employer cannot carry this burden merely by
showing that it also has a legitimate reason for its action
but it must persuade that the action would have taken
place absent protected conduct.
The evidence here of animus is direct and unequivo-
cally and a lay offs impact clearly fell largely on the only
two employees who were union officials and who refused
to go along with getting rid of the union.
And the lay off occurred just two weeks after Burgess
approached Brawdy with his plan to get rid of the union.
That timing is highly suspect.
WHEELING BRAKE BLOCK MFG. CO. 497
That Palmer was not approached about getting rid of
the union till after the lay offs doesn’t change anything.
That would be the time when he was most vulnerable.
And I think, in fact, it’s revealing that
18
in the midst of a lay off, that was allegedly generated by busi-
ness considerations, that Burgess made a point of talking to
Palmer about getting rid of the union twice.
Also the fact that the recalls and lay offs were done
without regard to seniority, which is an express require-
ment of the collective bargaining agreement, is also sug-
gestive of the discriminatory motivation as was the fact
that there was no history of lay offs at the plant according
to testimony of Union Representative Moore.
I would note here that it is a violation of Section
8(a)(3) of the Act for an employer to order a general lay
off for the purposes of discouraging union activity or in re-
taliation against employees because of the union activities
of some.
In this case the general lay off allegedly resulting from
a temporary closure was a pre-text to rid the union of cer-
tain employees, primarily to rid the facility of the two un-
ion officers, but the entire lay off is therefore tainted and
unlawful and any employee swept up in the lay off is a
discriminatee.
Respondent, of course, chose not to attend the hearing
and therefore did not put on any evidence to rebut the
General Counsel’s case. What evidence
19
there is is suspicious.
The lay off slips for Brawdy and Palmer say that the
reason for the lay off is that the company is temporarily
closed due to management change of ownership. Those
are found in General Counsel’s Exhibits 9 and 10.
This is essentially what Burgess stated in his tirade the
afternoon of July 11th but it’s obviously false as the vast
majority of employees were back working the next week
and many suffered no loss of work that week. The Com-
pany did not close.
Finally, additional evidence is found, per the proposi-
tion of the lay offs, were discriminatory and the conduct of
the Employer after July 14th, I’ll discuss this shortly.
I would note here that in making my findings regard-
ing the recall and lay offs I’ve relied upon credited testi-
mony but also records of hours worked found in General
Counsel’s Exhibit 30, which is a document provided by
Respondent to the Region as part of its investigation of the
charge.
Similar information was demanded from Respondent
by subpoena, which was placed in the record as General
Counsel’s Exhibit 5 and returnable the day of the hearing
in accordance with NLRB practice.
20]
The General Counsel represented that no documents
were provided in response to the subpoenas and no peti-
tion to revoke or quash was ever submitted.
Given Respondent’s total non compliance with the
subpoenas I think the introduction of materials provided to
the Region during the investigation of the charges filed in
this case is particularly appropriate.
But also note that Board law recognizes that position
letters and materials submitted by Respondent to a Region
may be used as admissions against interest introduced in
such as a Board proceeding, in a Board proceeding.
And for that, one would look to the Federal Rule of
Evidence, Rule 801(d)(2) in cases such as Schneider’s Inc.
241 NLRB 850 from 1979 and Steve Alloyed Ford 179
NLRB 229 Footnote 2 from 1969 and a host of other
cases.
The General Counsel has also alleged the 2 lay offs
were not only violations of Section 8(a)(3) but violative of
Section 8(a)(5) as they ignored the collective bargaining
agreement.
Article 4 Section 2 of the collective bargaining agree-
ment states, “Seniority shall govern the lay off and re-
employment of employees provided
21
that the employee is capable of doing the work”.
Clearly seniority was flouted with regard to the lay off
and recall. There’s no evidence that 0the seniority em-
ployees were incapable of doing the work. That was as-
serted by Respondent as to Palmer.
Palmer disputes it and I note that Palmer and other
senior employees worked at the facility by definition of
their being senior for some years without any evidence of
a problem handling the work.
As seniority is a mandatory term and condition of em-
ployment I find that the employer’s repudiation of it was
violative of Section 8(a)(5), (1) and 8(d) and a case sup-
porting that is Hilton’s Environmental 320 NLRB 437.
The evidence also shows that at the time of the lay off
and the timing is not in my view coincidental the employer
withdrew from the union’s district pension fund and
ceased making contributions to the fund on behalf of em-
ployees.
Article 10 of the collective bargaining agreement re-
quired that these payments be made at specified rates
through September 30, 2004 at a set amount per employee.
There’s no question based on the testimony of Union
Representative Moore and the exhibits entered
22
into evidence, specifically General Counsel’s Exhibit 18 and
21, that the Respondent ceased making pension contributions
on or about July 11th, 2003.
Indeed the response of the grievance filed by the union
over this issue, General Counsel’s Exhibit 21, suggests
that any allegations quote, “in regard to union dues or pen-
sion payments were the result of instructions from the re-
spective employees” end quote.
To the extent this is an admission or rationale for ceas-
ing pension contributions it is not valid. Pensions are a
mandatory subject of bargaining and even with employee
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD498
consent, for which there’s no evidence, the employer is not
privileged to cease making contractually mandated pen-
sion contributions.
Moreover I find it noteworthy the General Counsel’s
Exhibit 18, which is a letter from the pension fund to Bur-
gess, begins with the gray line of quote “withdraw liabil-
ity” end quote and the letter, the body of the letter, begins
by stating quote “This 2will acknowledge notification in-
dicating that as of July 10th, 2003 your company has
withdrawn from participation in the above multi employer
pension fund” end quote.
This shows that Burgess wrote or contacted
23
the fund on July 10th, 2003 before the lay offs and withdrew
from the fund. While that letter from the employer or notifi-
cation from the employer to the fund is not in evidence, the
funds’ acknowledgement letter appears to be a standard fund
letter written to employers in the ordinary course of business
who give notice of withdrawal.
For that reason it carries the heighten reliability from
what otherwise might be considered hearsay evidence.
Given that it suggests strongly that the decision to with-
draw from the pension fund was made as of July 10th, it
is highly suggestive of the fact that the lay off that fol-
lowed were part of a scheme that was planned by the com-
pany to rid the company of its union obligations.
It adds evidentiary weight to my findings that the lay
offs were part and parcel of anti union offensive plan by
the employer.
Clearly the company did not bargain with the union
about ceasing the pension payments or offer the union an
opportunity to bargain before ceasing the pension pay-
ments.
It’s well settled that the employer violates Section
8(a)(5) when during the term of a labor contract fails to
make appropriate and
24
contractually required fringe benefit payments.
See for example D.C. Mason Buildings Inc. 321
NLRB 1081 from 1996 and Stevens and Associate Con-
struction Company 307 NLRB 1403 from 1992 and Lear
Ziegler 283 NLRB 929 from 1987. The company’s con-
duct was a violation of Section 8(a)(5), 8(d) and 8(1)—
8(a)(1).
The testimony and evidence also shows that the em-
ployer ceased transmitting dues to the union in July. Prior
to that the employer had deducted dues from employee
pay pursuant to check off cards and transmitted dues to the
union pursuant to the agreement to do so found in the col-
lective bargaining agreement.
The evidence and the testimony of Union Representa-
tive Moore and particularly General Counsel’s Exhibit 15
showed these payments stopped in July and never started
again. July dues were quote “short” unquote by $7.56 and
no dues were transmitted thereafter.
The collective bargaining agreement provides, and
employees are paid weekly on Fridays, if the weekly shift
extends to a Friday and that monthly dues are deducted on
the second pay of each calendar month.
25
That would mean that dues were deducted for July
from the July 11th paychecks. Thus it would appear that
the company did as alleged cease making dues deductions
as of July 11th, 2003.
If the company did not bargain this change with the
union or provide the union with an opportunity to bargain
over it, this is straightforward violation of 8(a)(5), (1) and
8(d).
There is a question as to the duration of this violation.
The complaint originally alleged the failure to remit dues
violation continued only until February 6, 2004.
Apparently the complaint was pled that way not be-
cause the employer began deducting and remitting dues
again on February 6, 2004 but because of General Coun-
sel’s Exhibit 17, which is a fax sent to union representative
Moore on February 6, 2004 from Burgess that included
what the fax cover sheet refers to as quote “your copy of
revocation from employees” end quote.
The fax includes eight documents entitled quote “Ac-
knowledgment of revocation of authorization” end quote,
each of which is dated February 6, 2004 and is identical
except for each appears to be signed by each remaining
union employee at the facility.
26
The revocation states that the employees are acknowl-
edging that they revoke the authorization to deduct dues
beginning July 2003 and that they are currently reaffirm-
ing that revocation.
These revocations were received on the heels of a un-
ion grievance, General Counsel’s Exhibit 21, filed Febru-
ary 2, 2004 filed in part over the Company’s owing of
dues for periods going back to July of 2003.
At the hearing Union Representative Moore testified
that after he received these purported revocations he re-
ceived a call from one employee, whose revocation form
was sent in, who told him that the employer told employ-
ees that if the employees didn’t sign the revocation they
wouldn’t have a job.
At that point counsel for the General Counsel moved
to amend the complaint to alleged failure to deduct dues
from on or about July 11, 2003 until September 30, 2004,
the date of the contract’s expiration.
I believe Moore was credible in his testimony and that
he was called by an employee who told him essentially
that the employees were coerced into signing the revoca-
tions however the statement is, of course, rank hearsay.
27
And while Respondent chose not to be present in the
hearing and therefore did not object to the introduction of
this hearsay evidence I still have trouble accepting it as
evidence for truth of the matter asserted.
WHEELING BRAKE BLOCK MFG. CO. 499
The hearsay nature of the evidence limits its weight in
my view. Having said that however and for much the
same reasons the revocation cards or actually the copies
that were faxed to the union are also hearsay evidence.
They were sent to the union with the assertion that
they represent the employees’ decision to revoke dues de-
duction authorization but there is no foundation testimony
regarding how they were procured, where the form lan-
guage came from or even evidence that any employee ac-
tually signed a card.
All we have in evidence is something received by the
union. The cards were obviously not 1offered into evi-
dence and were not accepted for the truth of the matter as-
serted in them.
I note that the cards are, on their face, somewhat sus-
pect. They assert a seven-month retroactive revocation.
Also note that although it’s hearsay and as I say I cannot
rely on it for the truth of the matter asserted, the only
foundation evidence
28
in the record as to how the cards came about is the hearsay
statement to Moore to the effect that the cards were the prod-
uct of coercion.
Given the state of the evidence I cannot find that there
was valid evidence of revocation that would limit the em-
ployer’s obligation to deduct and remit dues to February 6,
2004.
I grant the General Counsel’s motion to amend the
complaint, find that the employer’s violation in failing to
deduct dues, deduct and remit dues continued through the
expiration of the labor agreement on September 30, 2004.
I also find that the conduct of the employer constitutes
a whole scale repudiation of the 1 collective bargaining
agreement as of July 11, 2003.
To review, we have a repudiation of the seniority
clause in the labor agreement, of the dues check off clause
and of the pension provision set in the context of anti un-
ion animus and discrimination against local union officials
in an effort of Respondent to rid itself of the union.
These are serious 8(a)(5) violations that strike at the
heart of the protection’s offered by the contract, in particu-
lar the loss of seniority and pension contributions cannot
be considered fringe or
29
minor or technical repudiations by the employer.
Similarly the Board has found that an employer’s fail-
ure and refusal to make payments for severance pay, vaca-
tion pay and health insurance premiums constitutes a re-
pudiation of a contract and that’s Victory Specialty Pack-
aging Inc. 331 NLRB Number 139 from the year 2000 and
then the famous case of Oak Cliff and Gold Baking Com-
pany 207 NLRB 1063 from 1972 where the Board said
that an across the board wage reduction constitutes a gen-
eral repudiation of the collective bargaining agreement.
Here I believe that the elimination of pension contribu-
tion and especially the elimination of seniority is of that
severe in nature and renders the contract repudiated.
I turn now to the evidence found in Union Representa-
tive Moore’s testimony and in General Counsel’s Exhibits
22, 23, 25 and 26, that the employer failed and refused to
recognize and bargain with the union for a successor labor
agreement to replacement of the agreement set to expire
September 30, 2004.
The union repeatedly requested bargaining for a suc-
cessor contract. The first request was made July 7, 2004
and the employer ignored that and
30
subsequent requests at one point claiming flood damage and
saying the employer would get back to the union, which it did
not do
Even after September 30, 2004 the union’s request for
dates and times to meet was met with silence. There’s no
excuse offered for this failure to meet and bargain.
It’s a straightforward per se refusal to bargain under
Section 8(a)(5) of the Act and it’s also a violation of
8(a)(1) and many cases support that proposition. For in-
stance B & B Gallo Pest Control Services 265 NLRB 535
from 1982, Associated Constructors 325 NLRB 998 at
1009 from 1998, Automatic 1Sprinkler Corp. 319 NLRB
401 at Page 402 from 1995.
Finally, the General Counsel alleges that Respondent
maintained and enforced an overly broad prohibition on
union activity. That restriction is found in the collective
bargaining agreement at Article 1, Section 6.
It states in relevant part quote “Union property except
as provided in this agreement—I’m sorry, strike that.
Quote—it states in relevant part quote “Union activity ex-
cept as provided in this agreement shall not be engaged in
on company time or property” end quote.
31
This is a facially unlawful clause. It is of no relevance
that the union agreed to it in the collective bargaining
agreement. It is far more restrictive of employer’s rights
than what is permitted under the Act.
It targets all and only union activity. It prohibits it on
all company property, not just working areas, and it pro-
hibits it on company time, not just while working.
It is therefore patently unlawful and I find its mainte-
nance enforcement is a violation of Section 8(a)(1) of the
Act and cases that support that include Jenson Enterprises
339 NLRB 877 at 878, stands for the proposition that em-
ployer may not restrict union related conversation while
permitting conversation relating to other topics.
Also important is cases that support the proposition
that the words company time’ may be reasonably con-
strued to mean that any discussion of union or union re-
lated matters at any time, including during breaks and
other non working periods, is prohibited and that’s unlaw-
ful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD500
And so clauses would—the words prohibiting union
activity on company time are presumptively unlawful and
there’s, of course, been no
32
rebutting of that presumption in this case. Those cases in-
clude M.J. Mechanical Services Inc. 324 NLRB 812 at 813
from 1997 and RCN Corporation 333 NLRB 295 from 2001.
So that’s my decision. I enter an order consistent with
it. I wont restate my conclusions of law here now. I’ve
described them. I will restate them when I issue the fol-
low up written decision that will come up with the full rec-
ommended order remedy and notice.
The remedy for these violations of the Act that I found
will be for Respondent to cease and assist there from and
take affirmative action designed to effectuate the purpose
of the Act.
Such affirmative action shall include making each em-
ployee laid off on July 14, 2003 as part 1 of the em-
ployer’s unlawful lay off whole for loss wages and bene-
fits, offering reinstatement to employees Brawdy and
Palmer to their former positions.
Such affirmative action will also include rescinding the
rule against union activity on company time found in Arti-
cle 1 of the expired collective bargaining agreement and
informing employees that the rule has been rescinded.
The affirmative action will include
33
reimbursing the union for loss dues that should have been
paid contractually but were not paid because of the em-
ployer’s repudiation of the dues check off provision during
the term of the agreement.
The affirmative action will include remitting all pen-
sion payments due under the collective bargaining agree-
ment on behalf of unit employees from the time the em-
ployer unilaterally withdrew from the pension fund and
failed to make pension contributions.
The affirmative action shall include upon the demand
of the union meeting and conferring for the purpose of
bargaining a successor collective bargaining agreement.
The affirmative action shall also require that Respon-
dent rescind its repudiation of the now expired contract
and notify the union in writing that it will honor the terms
of that contract through the period until the contract ex-
pired.
And the remedy will also include an order that infor-
mational notice, that I will describe in more detail in my
follow up written decision, will be posted.
Effectively it will say that the employer will not take
these kinds of acts or anything like
34
them that will interfere, restrain or coerce employees in the
exercise of their Section 7 rights and that the employer will
make the employees and the union whole as I’ve described in
the remedy, and I will describe in more detail in my written
decision.
This notice will be posted in the employer’s facility or
wherever notices are regularly posted for 60 days without
anything covering it up or defacing its contents.
And when the notice is issued to the employer he shall
sign it or otherwise notify the Region what action he will
take with respect to the decision.
So that’s my decision on the facts and the evidence.
When I receive the transcript in a couple of weeks I will
certify the accuracy of the decision and formalize the con-
clusions of law, order remedy and notice and then the case
will be transferred to the Board and at that time all parties
will receive a copy of the decision.
Does anyone have anything they need to put on the re-
cord?
MR. RANDAZZO: Your Honor, this is Randazzo. I just
wanted to make sure that your order is going to cover, and
I might have just missed this,
35
but Paragraph 8, the two threats that were alleged as 8(a)(1)?
JUDGE GOLDMAN: Yes.
MR. RANDAZZO: Okay.
JUDGE GOLDMAN: Yeah I found the two threats to
Palmer were 8(a)(1), if I left them out of the remedy sec-
tion it will, although I think that that will not be an af-
firmative action, it will just be a cease and assist.
MR. RANDAZZO: That, that’s correct, sir. I just wanted
to make sure. I could have missed it but you may have
touched on it but I just wanted to make sure.
JUDGE GOLDMAN: Yes.
MR. RANDAZZO: Okay, thank you, sir.
JUDGE GOLDMAN: Yes, they’ll be included. Okay. If
that’s all then with that I’ll close the hearing.
MR. ARNETT: Thank you very much, Your Honor.
JUDGE GOLDMAN: Okay.
MR. RANDAZZO: Thank you, Your Honor.
JUDGE GOLDMAN: Okay. Thank you. (Whereupon the
teleconference was concluded at10:41 a.m. on Friday, No-
vember 18, 2005)
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID I. GOLDMAN, Administrative Law Judge. This case
was the subject of a bench decision, Certification, and recom-
mended Order issued December 9, 2005. Therein I found that
the Respondent, Wheeling Brake Block Manufacturing Com-
pany (Wheeling Brake Block),1 engaged in numerous unfair
labor practices and I recommended commensurate remedies.
The matter was transferred to the National Labor Relations
Board (the Board) and in the absence of exceptions the Board
adopted the bench decision and recommended Order on Febru-
ary 1, 2006. However, on April 4, 2006, expressing concern
that its orders had not been properly served on the Respondent,
the Board caused its Order adopting the Bench Decision and

1 I have amended the caption in this matter to reflect the motion to
amend the complaint offered by the Government and granted by me at
the March 16, 2007 hearing.
WHEELING BRAKE BLOCK MFG. CO. 501
recommended Order to be vacated and set May 2, 2006, for
receipt of exceptions. By letter dated May 1, 2006, the Board
received correspondence, treated by the Board as a motion to
reopen the record, from Attorney Michael Morelly who pur-
ported to represent Wheeling Brake Block and Bernard Lee
Burgess (Lee Burgess) the president of Wheeling Brake Block.
Attorney Morelly asserted that Wheeling Brake Block was not
a proper party in interest in this matter. In his letter, Attorney
Morelly asserted that Wheeling Brake Block “has been an[ ]
idle company since 1998” and that “[t]he corporation who is
the real party in interest in this cause is Wheeling Brake Band
& Friction Mfg., Inc,” a company owned and operated by
Robert Burgess, the son of Lee Burgess. According to Morelly,
Robert Burgess had “usurped the identify of Wheeling Brake
Block by carrying on the business of manufacturing industrial
brake parts under both names as the situation suited his needs
best.” Attorney Morelly’s correspondence characterized the
answer to the complaint previously filed by Attorney Gerald P.
Duff on behalf of Wheeling Brake Block as part of a “fraud that
has been perpetrated upon the National Labor Relations
Board.”2
On November 21, 2006, the Board issued an order remand-
ing this matter to me to reopen the record and resume the hear-
ing for the purpose of taking evidence pertaining to the issue of
the proper identity of the Respondent. The Board’s remand
order instructed that upon the close of the hearing I should issue
a supplemental decision and recommended Order.
The hearing was reconvened before me in Steubenville,
Ohio, on March 14, 2007. In addition to the counsel for the
General Counsel, Rick Marshall, entered an appearance for the
Charging Party Union. Attorney Morelly entered an appear-
ance as counsel for Lee Burgess.3 At the hearing, the Govern-
ment moved to amend the complaint to add Wheeling Brake
Band & Friction Manufacturing, Inc. (Wheeling Brake Band &
Friction) as a respondent, contending that Wheeling Brake
Band & Friction was an alter ego of Wheeling Brake Block

2 In that answer Wheeling Brake Block admitted its identity, its op-
eration of the industrial brake facility at 56100 Berkley Avenue, in
Bridgeport, Ohio, its sale and shipping of goods in excess of $50,000
directly to points outside of Ohio, and its collective-bargaining relation-
ship with the Charging Party Union. The answer also admitted that
Robert Burgess was Wheeling Brake Block’s general manager and vice
president and an agent and supervisor of the Respondent within the
meaning of the Act. See also GC Exh. 28 at p. 3.
3 Although no appearance for Wheeling Brake Block was entered,
Lee Burgess is the founder and president of Wheeling Brake Block.
His essential claim in this litigation is that Wheeling Brake Block
ceased operations long before the unfair labor practices found in these
cases and should not be liable for any misconduct occurring at the
56100 Berkley Avenue facility in 2003. The record demonstrates, and I
find, that Lee Burgess was an agent of Wheeling Brake Block within
the meaning of Sec. 2(13) of the Act during all periods material to this
decision. Yet the record also demonstrates that at the time of the hear-
ing Lee Burgess had little or no influence over (or even access to) the
operations at 56100 Berkley that, notwithstanding his legal contentions,
continue in the name of Wheeling Brake Block. I do not believe he can
be held responsible for the failure of Robert Burgess, Wheeling Brake
Block and Wheeling Brake Band & Friction to comply with the sub-
poenas directed to them in this litigation.
and/or that the two enterprises constituted a single employer
and/or joint employers. Alternatively, the General Counsel
contended in his motion that Wheeling Brake Band & Friction
was a successor to Wheeling Brake Block. I granted this mo-
tion, which was unopposed at the hearing.4
After submission of evidence the hearing was recessed on
the afternoon of March 14, 2007, and the record held open until
March 28, 2007, while the parties reviewed certain documents
and evidence. On May 16, 2007, counsel for the General
Counsel filed his brief in support of his position. Attorney
Morelly did not file a brief. In addition, although it had not
appeared at the hearing and had ignored multiple subpoenas
directed to it, Wheeling Brake Band & Friction submitted a
brief filed by none other than former counsel for Wheeling
Brake Block, Gerald P. Duff. On the entire record, including
my observation of the demeanor of the witnesses and other
indicia of credibility, and after considering the briefs filed by
the parties, I make the following supplemental findings of fact,
conclusions of law, and recommendations.
Summary
Lee Burgess owns an array of industrial brake operations
around the country, including Wheeling Brake Block, which
was incorporated in the 1960s and has operated from the site
currently known as 56100 Berkley Avenue since approximately
1968.5 His family members are intimately involved in the op-

4 The motion to amend offered by the General Counsel was consis-
tent with the notification of intention to amend the complaint submitted
by the General Counsel to the parties, including Wheeling Brake Band
& Friction, by letter dated March 6, 2007. (GC Exh. 1(tt.)) In particu-
lar, the letter was sent to the attention of Robert Burgess, once in his
capacity as manager of Wheeling Brake Block and a second time in his
capacity as manager of Wheeling Brake Band & Friction. The letter
was sent to Burgess in this fashion at the Bridgeport, Ohio facility at
which the unfair labor practices at issue occurred, and at the Glendale
,West Virginia facility that he also manages. Thus, Burgess was sent
four copies of this letter, two to each of the facilities he indisputably
operates under the names Wheeling Brake Block and Wheeling Brake
Band & Friction. Notwithstanding this, Wheeling Brake Band & Fric-
tion did not appear at the hearing. It did, however, file a posthearing
brief. In it, Wheeling Brake Band & Friction acknowledges the Gen-
eral Counsel’s March 6, 2007 letter and notice of intent to amend the
complaint. Wheeling Brake Band & Friction does not contend that it
was unaware of the hearing, or of the General Counsel’s intention to
amend the complaint at the hearing. It offers no excuse for its failure to
attend the hearing (or for its failure to comply with the numerous sub-
poenas directed to its personnel). Rather, its brief is devoted to arguing
that the General Counsel’s motion to amend should be denied because
the allegations against Wheeling Brake Band & Friction lack merit.
5 Wheeling Brake Block operates a second facility in Glendale, West
Virginia. The employees of that facility have never been represented
by the Union and the bargaining unit covered by this case is limited to
the Bridgeport, Ohio facility. An additional, union-represented Wheel-
ing Brake Block facility in Wheeling, West Virginia closed by 1993.
Union Representative Randy Belliel testified that when he serviced
Wheeling Brake Block in the mid-1990s he retained references to the
Wheeling facility in the collective-bargaining agreement to ensure that
there would be no challenge to the Union’s representational status
should the facility restart operations. All of the labor agreements
through the last one, effective through 2004, continue to reference and
surport to cover both the Bridgeport and Wheeling facilities but by all
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD502
eration of some of these facilities. One of his sons, Robert
Burgess, has managed Wheeling Brake Block since late 1993
and holds the title of general manager and vice president of
Wheeling Brake Block. The record reveals that Robert Burgess
managed the Company with some oversight from and in con-
sultation with his father who lived elsewhere and traveled the
country visiting his various holdings. Eventually, the father
and son’s relationship deteriorated to the point that in 2005 the
father’s attorney was receiving letters from the son’s attorney
stating that Lee Burgess should not come on the property or
contact employees of the facility. In 2005, the landowner of
56100 Berkley Avenue (a firm controlled by the father) filed
suit to evict Wheeling Brake Band & Friction in the Court of
Common Pleas for Belmont County, Ohio. That litigation was
pending at the time of the supplemental hearing in this matter.
Although the failure of Robert Burgess to honor the subpoe-
nas directing him to appear at trial leaves unclear the full scope
of the machinations involved in these interrelated businesses,
the record does permit some fairly straightforward conclusions
as to the matters most relevant to the instant litigation. In short,
Lee Burgess’ contention that Wheeling Brake Block should not
be liable for the Board’s order is without force. No evidence
supports any of the key contentions in Attorney Morelly’s
original submission to the Board. There is no evidence that
Robert Burgess “usurped” the identity of Wheeling Brake
Block, “pos[ed] as an agent of Wheeling Brake Block,” used its
name without permission, or executed labor agreements with
the Union “without the authority” of Wheeling Brake Block.
Wheeling Brake Block was and is a proper respondent. There
is no evidence whatsoever that the answer filed on its behalf
was fraudulent. Indeed, record evidence corroborates the ad-
missions in the answer, particularly the continued (and author-
ized) operation of Wheeling Brake Block by Robert Burgess.
At the same time, Lee Burgess’ intervention in these proceed-
ings alerted the General Counsel to the possibility of extending
the complaint to seek to impose joint and several liability on
Wheeling Brake Band & Friction, a company owned by the son
(and perhaps his wife), and which, as discussed herein, the
record demonstrates to be a single employer with Wheeling
Brake Block. The General Counsel’s motion to amend the
complaint falls squarely within the ambit of the Board’s remand
Order as it concerns the issue of the proper identity of the Re-
spondent. As discussed herein, the General Counsel’s effort to
hold Wheeling Brake Band & Friction liable as a respondent is
fully warranted.

evidence the Wheeling facility has remained inoperative since before
1993.
FINDINGS OF FACT
The record demonstrates and I find the following:6 As refer-
enced supra, Wheeling Brake Block has operated from, among
other locations, the site currently known as 56100 Berkley
Avenue in Bridgeport, Ohio, since approximately 1968.

In the
latter part of 1993, Robert Burgess, who had been working at
another family business in New Orleans, was assigned by his
father to take over the operation of Wheeling Brake Block.7 In
June 1994, after Robert Burgess assumed management of the
operation, a second company, Wheeling Brake Band & Friction
was created by Lee Burgess. (See GC Exh. 56.) According to
Robert Burgess, ownership of Wheeling Brake Band & Friction
was assigned to Robert Burgess and his wife as a means to
protect Wheeling Brake Block from IRS tax liens placed on the
property. Wheeling Brake Band & Friction’s role was to sell
the industrial brake products produced by Wheeling Brake
Block. According to Robert Burgess, there was a surreptitious
purpose to the arrangement: “You got to be careful. Wheeling
Brake block sold the stuff to Brake Band and Brake Band was
the sales company and it sold it out other door . . . so that Brake
Block would not have an income.” According to Robert Bur-
gess the point of this was “to deceive and avoid the internal
revenue service . . . that was our operation.” Burgess made
clear that by “we” and “our” he meant “[m]e and my father.”
According to Burgess, “[w]e owed them $300,000 we didn’t

6 My findings rely in significant part on the October 31, 2006 depo-
sition testimony of Robert Burgess provided in the Ohio State court suit
brought by Lee Burgess’ real estate holding company against Wheeling
Brake Band & Friction. At the hearing, when Robert Burgess failed to
appear pursuant to subpoena the General Counsel moved to introduce
the deposition transcript. There was no objection, rather, Lee Burgess’
counsel “stipulated” to admission of the deposition transcript. I ac-
cepted the transcript into evidence under Fed.R. Evid. 801(d)(2). I note
that I also admit this evidence as a response to Robert Burgess, Wheel-
ing Brake Brand & Friction, and Wheeling Brake Block’s failure to
comply with or file a petition to revoke the numerous subpoenas served
upon them by the General Counsel. Bannon Mills, Inc., 146 NLRB 61,
fn. 4, 633–634 (1964) (“If the best evidence which could have been
offered on this issue is not before us, responsibility therefore rests with
Respondent who refused to honor a subpoena by the General Counsel
for its production.”).
7 Although I generally credit employee Greg Brawdy’s testimony, I
believe he was mistaken when he testified that Rob Burgess began
managing Wheeling Brake Block just 5 to 6 years before the July 2003
discriminatory layoff (discussed in the original bench decision). The
weight of the testimony and record evidence suggests that it was prior
to that, and that Brawdy’s recollection was simply a best estimation
offered many years after the fact without benefit of any documents or
other references. NLRB v. Universal Camera Corp., 179 F.2d 749, 754
(2d Cir. 1950) (“nothing is more common in all kinds of judicial deci-
sions than to believe some and not all, of a witness’ testimony”), va-
cated on other grounds, 340 U.S. 474 (1951). Randy Belliel, the Inter-
national union representative who serviced Wheeling Brake Block from
approximately 1993 to 1997 testified that Burgess was present, and had
only recently arrived at the facility when he began servicing the facility
in the latter part of 1993. Belliel seemed sure of the year he arrived,
and he would have known if Burgess were there when he arrived. I
credit his testimony on this point over Brawdy’s, and over Rob Bur-
gess’ statements in his deposition testimony that he was assigned by his
father to manage the Bridgeport facility in March 1994.
WHEELING BRAKE BLOCK MFG. CO. 503
want to pay, so we made it look like . . . [Wheeling Brake
Block was] not showing any profit. They’re selling the stuff to
Brake Band for a dollar a pound or some crazy [price].”8 Ac-
cording to Burgess, Wheeling Brake Band & Friction’s profit,
earned from selling the product of Wheeling Brake Block, was
then siphoned off into payments made for the benefit of Lee
Burgess and his companies. These payments continued until
2003.
Wheeling Brake Band & Friction operated from 56100 Berk-
ley Avenue in Bridgeport as did Wheeling Brake Block. In
1994 it paid the property taxes and arrears for a number of Lee
Burgess’ companies, including the Berkley Avenue facility. In
June 1995, working with an accountant, Robert Burgess began
denoting these tax payments as “rent,” or more precisely, pay-
ments in lieu of rent, in order to allow Wheeling Brake Band &
Friction to take tax deductions. Robert Burgess referred to this
arrangement as a means of “defrauding the tax return” and his
testimony suggests that the payments were not actually in lieu
of rent.9
Over the years, Burgess also used Wheeling Brake Band &
Friction profit to pay for machinery and improvements to ma-
chinery used to produce product. Part of the motivation for this
was the hope that Wheeling Brake Band & Friction’s interest in
the machinery would prevent the Internal Revenue Service
from confiscating machinery in order to satisfy judgments.
According to Robert Burgess, he and his father “changed
over” the payroll of Wheeling Brake Block to Wheeling Brake
Band & Friction in 1999. At some point, after 1996 and by
1999, the evidence suggests that the paychecks received by
employees began to indicate that the payor was Wheeling
Brake Band & Friction instead of Wheeling Brake Block. By
2000, unemployment compensation records indicate that the
employer was named Wheeling Brake Band & Friction. Ac-
cording to Palmer, at some point, Wheeling Brake Band &
Friction “just showed up” on the employees’ paychecks.

8 I note that Rob Burgess’ admissions in this regard confirm the re-
markably accurate suspicions voiced by longtime employee Robert
Palmer about the purpose behind the establishment of Wheeling Brake
Band & Friction. Asked why Robert Burgess “used the name Band &
Friction,” Palmer, explained:
A. I think he was [a]voiding his creditors.
Q. And what do you base that on?
A. At times he would be changing banks and when we ques-
tioned him about
it, which we knew he’d been doing it we’d question him
about it, and
he said, “Well, it just make a better thing”, but when it come
back around
it—something other than what he said took place.
Q. Can you explain that—what do you mean by that? When
you asked
him about it he said what?
A. Uh—I guess he was under a couple suits, law suits. And
to me—to my opinion only that he was avoiding the law suits.
Q. By using the name Band & Friction?
A. Yeah.
9 I need not and do not reach any judgment on this practice except to
note that it further illustrates the less than arm’s-length relationship
between these companies.
From the employees’ and Union’s perspective, this change to
Wheeling Brake Band & Friction’s payroll was a nonevent.
Employee Greg Brawdy testified that one day, approximately a
year before the unlawful July 2003 layoff (described in the
original decision in this matter), Rob Burgess told Brawdy that
he was changing the name of the facility to Wheeling Brake
Band & Friction. The employees continued performing the
same work—making brake shoes—at the same location—the
tin building located at 56100 Berkley Avenue. There was no
division between Wheeling Brake Band & Friction employees
and Wheeling Brake Block employees: there was one work
force performing the same work as always. Management did
not change. The sign outside the facility continued to say
“Wheeling Brake Block.” There was no notice of a shutdown
or termination of Wheeling Brake Block provided to employ-
ees. As Brawdy put it, “[n]othing changed.” According to
former employee and local union representative, Richard
Palmer, he was not aware of any difference between Wheeling
Brake Block and Wheeling Brake Band & Friction. No notice
of a closure or shutdown of Wheeling Brake was ever provided
to the Union. To this day, Wheeling Brake Band & Friction
has never operated separately from Wheeling Brake Block. As
Brawdy explained, products continued to be shipped out under
the name “Wheeling Brake Block” as well as under the name
“Wheeling Brake Band & Friction.” There was no apparent
difference or basis of distinction between when products were
shipped using the Wheeling Brake Block name and the Wheel-
ing Brake Band & Friction name. Both names were used, but
the products shipped under the names were identical. The for-
mer corporate secretary of Wheeling Brake Block, D. Davis-
Sparbanie (who resigned from Wheeling Brake Block in 1993),
testified that she now works at a company in Mars, Pennsyl-
vania, that occasionally purchases industrial linings from the
Bridgeport facility. Davis-Sparbanie testified that the products
are shipped in boxes that say Wheeling Brake Block Manufac-
turing Company on the box and the packing slip will also say
Wheeling Brake Block. However, her understanding is that
these Wheeling Brake Block products are “invoiced” to Wheel-
ing Brake Band & Friction for payment. To this day, Wheeling
Brake Block as well as Wheeling Brake Band & Friction con-
tinues to buy supplies (see GC Exh. 30 at responses to item
4(c)) which show bills to Wheeling Brake Band & Friction and
bills to Wheeling Brake Block. Wheeling Brake Block main-
tains an extensive website (GC Exh. 59), where it lists Wheel-
ing Brake Block and Wheeling Brake Band & Friction at the
same phone number, address, website, and does not distinguish
between the companies. The website attributes to Wheeling
Brake Block all the products that the record suggests are made
at the facility, including friction materials and bands. As the
website notes, “Wheeling Brake Block is still a family owned
and operated manufacturer.” Robert Burgess continues to par-
ticipate on the Board of an industry trade association as the
representative of Wheeling Brake Block. (See Web site of the
Friction Materials Standards Institute at http://www.fmsi.org/
FMSI/ bod/ bod.asp listing Burgess and listing Wheeling Brake
Block as an “active member” of the organization.) Wheeling
Brake Block continues to advertise on a number of internet
industrial indexes, including Kellysearch (GC Exh. 55),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD504
ThomasNet (GC Exh. 54) and with MacRae’s Blue Book,
which contains, in addition to the telephone, fax, address of
Wheeling Brake Block, a map showing how to get to the facil-
ity. (GC Exh. 52.) Wheeling Brake Block also advertises on
ThomasNet, an internet site providing similar services. (GC
Exh. 54.)
As discussed supra, the “change” to Wheeling Brake Band &
Friction changed nothing in terms of the work, operations, or
Wheeling Brake Block’s presence in the marketplace. The
employees also continued to receive the wages and benefits set
forth in the labor agreement, negotiated by Burgess on behalf of
Wheeling Brake Block. Collective bargaining continued as
always. As it had done in a series of collective-bargaining
agreements stretching back to at least 1985, Wheeling Brake
Block continued to enter into collective-bargaining agreements
with the Union covering the Bridgeport employees, the last
being an agreement effective October 1, 2001, to at least Sep-
tember 30, 2004, that was unlawfully repudiated in July 2003.
Lee Burgess’s name and signature is on the contract on behalf
of Wheeling Brake Block for the 1985–1988 and 1990–1993
contracts. In subsequent years, beginning with the 1995 con-
tract, and continuing through and including the 2001 contract,
Rob Burgess signed for Wheeling Brake Block. He also nego-
tiated the contracts, although Randy Belliel, the union represen-
tative who negotiated the 1995 agreement, credibly testified
that Rob Burgess indicated that measures he agreed to had to be
accepted by his father in order for any agreement to move be-
yond a tentative agreement. According to Palmer, who served
on the Union negotiating committee for the 1995 and 2001
labor agreements, during negotiations for both agreements Rob
Burgess would consult with his father after negotiating ses-
sions. Palmer testified that although he only saw Lee Burgess
at the plant three-four times over the years, Rob Burgess would
tell employees that “on quite a few things that he wanted to
change [h]e’d check with Lee and see if he could change
them.” Palmer specifically recalled this happening in the year
2000, when the Union demanded that a sander being added to
the operation be part of the bargaining unit’s work. According
to Rob Burgess, Lee Burgess advised him to shut down the
sander. Generally, Palmer recalled that after a shift “usually”
he could walk into Rob Burgess’ office and find him in conver-
sation with Lee Burgess.10
In his capacity as vice president and general manager of
Wheeling Brake Block, Burgess continued to respond to griev-
ances (GC Exh. 21), enter into pension agreements (GC Exh.
20(b) at p. 12 of Agreement and Declaration of Trust; see also
GC Exh. 20(c)(2)), and communicate with the Union with fax
cover sheets and letterhead (GC Exh. 17, 24) indicating that the

10 Counsel for Lee Burgess objected to this testimony on grounds of
hearsay. However, Rob Burgess’ statements to Palmer are admissions
of a party opponent. Specific statements Rob Burgess attributed to Lee
Burgess require another level of hearsay analysis, but Lee Burgess was
and is the president of Wheeling Brake Block, and at that time, cer-
tainly, an agent of the company, and therefore the statements attributed
to him are admissions of a party opponent. In any event, the fact of Lee
Burgess’ consultation with Rob Burgess on matters of labor relations is
the important point, and it is established by Palmer’s credited testimony
of his conversations with Rob Burgess.
correspondence was from Wheeling Brake Block Mfg. Co. His
e-mail address was displayed as “wheeling Brake Block Mfg.
Co.—General Manager” at the address
whgbb@worldnlet.XXXX. The fax marking on documents
sent by Burgess reflect that they come from “Wheeling Brake
Block” (ee GC Exh. 13 dated September 17, 2003). In 2004,
Burgess personally signed acknowledgements as the vice presi-
dent of Wheeling Brake Block Manufacturing Company verify-
ing statements the Company’s counsel made on behalf of the
Respondent in this case. In addition, Rob Burgess signed a
questionnaire from the NLRB in 2004 in which he indicated
that Wheeling Brake Block employed 13 individuals at the
Berkley Avenue site. (GC Exh. 48).11
In the face of the active and open continued operation of
Wheeling Brake Block by Rob Burgess, the record is devoid of
any evidence that at any time Lee Burgess, as president of
Wheeling Brake Block (or in any other capacity) took any steps
at all to prevent Rob Burgess from acting on behalf of Wheel-
ing Brake Block. To the contrary, Wheeling Brake Block con-
tinued to operate under Rob Burgess’ direction, with no evi-
dence of any objections from Lee Burgess, or anyone else act-
ing on behalf of Wheeling Brake Block.
I accept, as Lee Burgess contends, that his influence over
Wheeling Brake Block waned over time as Rob Burgess arro-
gated to himself more and more of the decisionmaking relating
to the operation of the Berkley Avenue facility. Whether Rob
Burgess “stole” the facility from him, as he contends, is not a
question I need resolve. For present purposes, it is enough to
recognize that Lee Burgess’ declining role developed over time
and that he was barred by his son from the property only as of
2005, well after the commission of the unfair labor practices at
issue in this case. The evidence shows that Rob Burgess was in
regular consultation with him before that, and Lee Burgess (or
one of his companies) has continued to pay bills and taxes. As
Lee Burgess stated, “I’ve even paid his taxes four or five times
because the girls in my office didn’t know the difference be-
tween Wheeling Brake Block and Wheeling Brake Band &
Friction, they just saw it was mine so I paid them—property
taxes.” Burgess also admitted that his various companies, in-
cluding Wheeling Brake Block make products for each other:
Well, we make brake blocks for each other, yeah. Oc-
casionally.
Q. Okay?
A. I guess that’s what you call an association. He has
presses. You have to have molds for these things, hun-
dreds of them at all different sizes.
Like I said, that one brake block we make is 30 inches
wide, 35 inches long, 200 inches in diameter, weighs 176
pounds, which is more than you weigh, one brake block.
He has molds for different stuff.

11 The only employment-policy document in the record under the
name of Wheeling Brake Band & Friction is the first page of a “Drug
Free Workplace Policy” memo that, by its terms, was to become effec-
tive July 1, 2002. That policy, which Brawdy testified was “something
new” that Burgess started, involved employees attending monthly
meetings on the subject. It was applicable to all employees at the facil-
ity.
WHEELING BRAKE BLOCK MFG. CO. 505
Everybody has a different mold, thousands of molds.
So if you have a mold in Mobile, you make it in Mobile, if
you have it in Ohio, you make it in Ohio. We do exchange
back and forth.
I reject and do not credit the assertions of Lee Burgess—
mostly offered in the form of endorsements of the leading sug-
gestions of his counsel—that Wheeling Brake Block “shut
down so to speak” or “stop[ped] doing business” in 1999. The
evidence suggests that when Burgess says “we shut it down” he
means only that the decision was made to transfer the employee
payroll and, for tax purposes, the assets of the company to
Wheeling Brake Band & Friction. At some point the name
Wheeling Brake Band & Friction began to appear on some
products some of the time, but in no sense did Wheeling Brake
Block close or shut down. There was no sale or arm’s-length
transfer of the assets or liabilities of the Company.
Analysis and Discussion
A. Wheeling Brake Block is Properly a Respondent
Before turning to the General Counsel’s amendments, I con-
sider Lee Burgess’ claim—the one that prompted the Board’s
remand—that Wheeling Brake Block is not a proper party in
interest in this case. The claim is based on the contention that
Wheeling Brake Block “shut down” or went out of business in
approximately 1999, leaving Wheeling Brake Band & Friction
as the sole surviving employing entity. Lee Burgess contends
that Wheeling Brake Band & Friction is a successor to Wheel-
ing Brake Block, and as such the only proper respondent for the
unfair labor practices that began in 2003.
This claim is without substance. There was no shutdown of
Wheeling Brake Block in 1999. This is manifest from its con-
tinued engagement in collective bargaining, its advertising, its
continued production under the name Wheeling Brake Block,
the maintenance of its management and employee structure that
continued without change. Lee Burgess, the president and
owner of Wheeling Brake Block continued to advise and con-
sult with Rob Burgess about the operations long after 1999,
including during subsequent bargaining with the Union. I don’t
doubt for a second that the current bad blood between Lee and
Rob Burgess is real. But Lee Burgess does not point to a single
phone call, letter, or conversation, much less any legal action,
demonstrating that at any time there was an effort to stop Rob
Burgess from using the name Wheeling Brake Block, or from
operating as Wheeling Brake Block. The claim in Attorney
Morelly’s original submission to the Board that Robert Burgess
“usurped” the identify of Wheeling Brake Block, “pos[ed] as an
agent of Wheeling Brake Block,” used its name without per-
mission, or executed labor agreements with the Union “without
the authority” of Wheeling Brake Block is a claim backed by
nothing. Assuming a corporate struggle between family mem-
bers internal to Wheeling Brake Block (the son/vice president
of the company taking control from the father/president), it is
not relevant to Wheeling Brake Block’s obligations under the
Act.
The evidence marshaled in support of the claim that Wheel-
ing Brake Block exited the industrial brake lining business in
1999 is the changeover of employee payroll to Wheeling Brake
Band & Friction along with tax returns showing diminished
earnings and expenditures after 1999. Given the nonarm’s-
length relationship between Wheeling Brake Band & Friction
and Wheeling Brake Block, this transfer of payroll and tax
obligations to Wheeling Brake Band & Friction does not sup-
port the claim that Wheeling Brake Block went out of business.
Notably, the transfer of assets to Wheeling Brake Band & Fric-
tion (for the purpose of sheltering them) began long before
1999, as evidenced by the admissions of Rob Burgess in his
deposition. None of this evidence was contradicted by Lee
Burgess in his testimony. Moreover, although the record does
not allow more detailed findings, the bulk of the payroll was
transferred to Wheeling Brake Band & Friction before 1999, at
a time when even Lee Burgess concedes that Wheeling Brake
Block was the employing entity. This is clear, as the 1998
1120 tax forms placed into the record show that only $18,795
was attributed to salaries and wages, none for employee benefit
programs, and $220 attributed to pension costs. These figures
are a pittance of the amount of wages and benefits that must
have been paid out to or contributed on behalf of approximately
ten employees that year. Clearly, the payment of employee
wages and benefits by some entity other than Wheeling Brake
Block precedes May 1, 1998 (the earliest period covered by
1999 1120 forms). Yet it is solely this sharing of the employee
wage burden that Lee Burgess relies upon to argue that Wheel-
ing Brake Block ceased being an employer in 1999.12
Under these circumstances, the effort to remove Wheeling
Brake Block as a party in interest in these proceedings is not
well taken. In short, Rob Burgess did not perpetrate a fraud on
the Board when, he and Attorney Duff, on behalf of Wheeling
Brake Block, admitted that Wheeling Brake Block was the
employing entity and that Rob Burgess was its agent. He was
and is, and his father’s unhappiness with the direction his son
has taken Wheeling Brake Block cannot be solved by appeal to
the Board to eliminate Wheeling Brake Block as a respondent
in this case.
B. Wheeling Brake Band & Friction’s Status
as a Respondent
The Government contends that Wheeling Brake Block and
Wheeling Brake Band & Friction are joint and severally liable
for the unfair labor practices. The contention that these entities
constitute a single employer for purposes of the Act is compel-
ling.
A single-employer analysis is appropriate where two ongo-
ing businesses are coordinated by a common master. See APF
Carting, Inc., 336 NLRB 73 fn. 4 (2001) (citing NYP Acquisi-
tion Corp., 332 NLRB 1041 fn. 1 (2000), enfd. 261 F.3d 291
(2d Cir. 2001)). “Stated otherwise, the fundamental inquiry is
whether there exists overall control of critical matters at the
policy level.” Emsing’s Supermarket, Inc., 284 NLRB 302
(1987), enfd. 872 F.2d 1279 (7th Cir. 1989) (footnotes omit-
ted). In Flat Dog Productions Inc., 347 NLRB 1179, 1180–
1181 92006), the Board explained:

12 I note that the Respondent’s tax returns are limited to the first page
filed for 1998–2002. Attached statements, schedules, etc., are not in
the record. Without them, their use, quite apart from the issue I note in
the text, is necessarily limited.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD506
In determining whether two entities constitute a single em-
ployer, the Board considers four factors: common control
over labor relations, common management, common owner-
ship, and interrelation of operations. Emsing’s Supermarket,
Inc., 284 NLRB 302 (1987), enfd. 872 F.2d 1279 (7th Cir.
1989).
The Board has held that the factors of common control over
labor relations, common management and interrelation of op-
erations are “more critical” than the factor of common owner-
ship or financial control, and that “centralized control of labor
relations is of particular importance because it tends to demon-
strate ‘operational integration.’” RBE Electronics of S.D., 320
NLRB 80 (1995). However, “[n]o single factor in the single-
employer inquiry is deemed controlling, nor do all of the fac-
tors need to be present in order to support a finding of single-
employer status.” Flat Dog Productions Inc., supra; Bolivar-
Tees, Inc., 349 NLRB 720, 722 (2007). RBE Electronics, supra.
“Rather, single-employer status depends on all the circum-
stances, and is characterized by the absence of the arm’s-length
relationship found between unintegrated entities.” Dow Chemi-
cal Co., 326 NLRB 288 (1998). Indeed, the Board has recently
explained that “[t]he hallmark of a single employer is the ab-
sence of an arm’s-length relationship among seemingly inde-
pendent companies.” Bolivar-Tees, Inc., supra.13
In this case the single employer status can certainly be found
by reference to the Board’s four traditional single-employer
factors. At all material times, Rob Burgess, sometimes in con-
sultation with his father, controlled labor relations whether for
Wheeling Brake Block or Wheeling Brake Band & Friction.
There is one management structure for both companies. The
operations are entirely interrelated, indeed, commingled is a
better description than interrelated.14 Ownership is nominally
separate. Wheeling Brake Block is owned by Lee Burgess and
Rob Burgess has refused to grant him an interest in Wheeling
Brake Band & Friction, although its profits are dependent on
the less than arm’s-length relationship of the two companies
and the profits of Wheeling Brake Band & Friction have been
siphoned off to Lee Burgess and his corporate holdings. In
such situations where family members dominate the ownership
and management of each company “the Board often treats own-
ership by other family members as personal ownership.” Cen-
turion Auto Transport, Inc., 329 NLRB 394, 397 (1999); Alex-
ander Bisnitzky, 323 NLRB 524, 524–525 (1997) (“It is appar-
ent that the companies’ relationship is a close family one rather

13 See also Overton Markets, Inc., 142 NLRB 615 (1963) (10 stores
in 7 separate companies owned and controlled by members of the same
family operated at less than arm’s length are single integrated enterprise
for purposes of the Act). I note that the Board has also recognized that
the absence of an arm’s-length relationship between two enterprises is
sometimes considered “essentially synonymous” with single-employer
status. Lebanonite Corp., 346 NLRB 748 at fn. 5 (2006). However, in
other cases, the Board has treated the absence of an arm’s-length rela-
tionship as bearing on the factor of interrelation of operation. Id.
14 See Bolivar-Tees, Inc., supra a347 at 723 (“The presence of ‘non-
arm’s length transactions at reduced prices or without payment entirely
is . . . probative of interrelation of operations.’” (Quoting Lebanite
Corp., 346 NLRB 748 at fn. 5 (2006)).
than one between independent companies dealing at ‘arm’s
length.’ In these circumstances the Board often treats owner-
ship by other family members as personal ownership”) (foot-
note omitted). Based on the Board’s four factor test, these two
allegedly distinct companies constitute a single employer under
the Act.
Quite apart from the Board’s four factor test, the circum-
stances in this case bear out the appropriateness of the Board’s
recognition that the absence of an arm’s-length relationship
between unintegrated entities is the “hallmark” of a single em-
ployer relationship. Bolivar-Tees, Inc., supra. Here, there is a
sense in which application of the four factors misses the greater
point: Wheeling Brake Band & Friction was established by the
Burgess’ as a means of removing and protecting the profits of
Wheeling Brake Block so that they could be enjoyed by the
Burgess’ without regard for Wheeling Brake Block’s govern-
ment lien holders. Wheeling Brake Block’s products were
provided to Wheeling Brake Band & Friction for “a dollar a
pound or some crazy [price]” and the profits used for all man-
ner of expenses benefiting Lee Burgess, his other companies,
and Wheeling Brake Block. Wheeling Brake Band & Friction
operated as a safe deposit box for Wheeling Brake Block, sepa-
rately incorporated as a means of protecting Burgess and
Wheeling Brake Block.
According to the admissions of Robert Burgess, this was the
practice from the inception of Wheeling Brake Band & Friction
in 1994. In this context the decision in 1999 to transfer the
employee payroll from Wheeling Brake Block to Wheeling
Brake Band & Friction did not affect Wheeling Brake Block’s
obligations under federal labor law. It was not attendant to any
type of arm’s-length sale, transfer of assets or change of con-
trol. Production did not stop or change in anyway. Wheeling
Brake Block continued to advertise, hold itself out to the pub-
lic, and continued to negotiate, sign, and abide by collective-
bargaining agreements with the employees’ bargaining repre-
sentative. The sign out front continued to say Wheeling Brake
Block. There has never been the slightest operational separa-
tion between Wheeling Brake Block and Wheeling Brake Band
& Friction. The latter sold the products provided to it (“for a
dollar a pound or some crazy [price]”) by the former. They had
the same employees, same management, same control. They
are truly a single employer. Moreover, it is well settled that
“[w]hen two entities are found to be a single employer, one
entity’s collective-bargaining agreement covers the other entity
as well, provided that the two entities’ employees constitute a
single appropriate bargaining unit.” Stardyne Inc. v. NLRB, 41
F.3d 141, 144–145 (3d Cir. 1994). Here, there is no distinc-
tions among employees between work they do for Wheeling
Brake Band & Friction and the work performed for Wheeling
Brake Block. They constitute a single appropriate bargaining
unit.15

15 Because Wheeling Brake Band & Friction is liable as a single em-
ployer it is unnecessary to pass on whether it may be liable on an alter
ego theory. See Flat Dog Productions, supra. I note that the alter ego
theory is more readily applicable where a new enterprise is the dis-
guised continuance of part or all of a prior enterprise that has ostensibly
ceased operations. See NLRB v. Hospital San Rafael, 42 F.3d 45, 50
WHEELING BRAKE BLOCK MFG. CO. 507
CONCLUSIONS OF LAW
Based on the foregoing supplemental decision, as well as the
December 9, 2005 bench decision and certification issued in
this matter, I make the following conclusions of law:
1. Wheeling Brake Block Manufacturing Company and
Wheeling Brake Band & Friction Manufacturing Company (an
integrated enterprise and single employer hereinafter referred to
collectively as the Respondent) are 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.

(1st Cir. 1994), cert. denied 516 U.S. 927 (1995). Here, I do not be-
lieve that Wheeling Brake Block ever even purported to cease doing
business and the single-employer theory more accurately describes the
situation in this case. However, were there merit to the position that
Wheeling Brake Block ostensibly discontinued operations, then I would
find that Wheeling Brake Band & Friction operated as a disguised
continuance of Wheeling Brake Block. Once the assumption that
Wheeling Brake Block ostensibly ceased operations is indulged,
Wheeling Brake Band & Friction fits easily within the Board’s defini-
tion of an alter ego. See, e.g,. Vallery Electric, Inc., 336 NLRB 1272
(2001), enfd. 337 F.3d 446 (5th Cir. 2003). In reasoning adopted by the
Board in Vallery Electric, the ALJ explained that “the elements neces-
sary to prove alter ego and/or single employer status are much the
same. . . . The key elements in establishing an alter ego are ‘substantial
identity of management, business property, operation, equipment, cus-
tomers, supervision and ownership.’ NLRB v. Al Bryant, Inc., 711 F.2d
543, 553–554 (3d Cir. 1983) [cert. denied 464 U.S. 1039 (1984)].” It is
also significant in determining alter ego status whether the purpose in
creating the new entity was to evade collective-bargaining obligations
(see Fugazy Continental Corp., 265 NLRB 1301–1302 (1982), enfd.
725 F.2d. 1416 (D.C. Cir. 1984)), however, such a finding is not re-
quired. Stardyne Inc. v. NLRB, 41 F.3d at 146–151. As is evident from
the discussion in the text, the companies here operate with substantially
identical management, business property, operation, equipment, cus-
tomers, and supervision. Ownership is formally separate, but given the
familial relations and lack of arm’s-length transaction, this is no im-
pediment to a finding of alter-ego status. As the Board stated in Ken-
more Contracting Co., 289 NLRB 336, 337 (1988) (“a finding of com-
mon ownership may be made where, although the same individuals are
not shown to be owners of each corporation, the corporations are solely
owned by members of the same family”), enfd. 888 F.2d 125 (2d Cir.
1989). Family ownership by members of the same family does not
compel a finding of substantially identical ownership. “However, it
‘militates in favor of an alter ego finding’ where, as here, other relevant
factors are shown.” Midwest Precision Heating & Cooling, 341 NLRB
435 (2004) (quoting Cofab, Inc. 322 NLRB 162, 163 (1996), enfd. 408
F.3d 450 (8th Cir. 2005)). They have been shown here. As noted, the
lack of evidence establishing that Wheeling Brake Band & Friction was
established to evade responsibilities under the Act—the evidence sug-
gests other illicit motives—does not undermine an alter ego finding.
Finally, given my findings I also do not reach the General Counsel’s
contention that the two companies are joint employers, although I note
that the designation does not seem applicable. “[A] finding that com-
panies are ‘joint employers’ assumes in the first instance that compa-
nies are ‘what they appear to be’—independent legal entities that have
merely ‘historically chosen to handle jointly . . . important aspects of
their employer-employee relationship.’” NLRB v. Browning-Ferris
Industries, 691 F.2d 1117, 1122 (3d Cir. 1982) (quoting NLRB v.
Checker Cab. Co., 367 F.2d 692, 698 (6th Cir. 1966), cert. denied 385
U.S. 1008 (1967)). That assumption is not warranted in this case.
3. The Union, at all material times has been the exclusive
collective-bargaining representative, based on Section 9(a) of
the Act, of an appropriate unit for such purposes as defined by
Section 9(b) of the Act, of the Respondent’s employees at its
Bridgeport, Ohio facility composed of:
All production and maintenance employees employed by the
Respondent at its Bridgeport, Ohio facility, excluding all of-
fice clerical employees and all professional employees,
guards, and supervisors as defined by the Act.
4. The Union and the Respondent were parties to a collec-
tive-bargaining agreement governing the unit employees’ terms
and conditions of employment that was effective by its terms
from October 1, 2001, through September 30, 2004.
5. By informing an employee that the Respondent was going
to get rid of the Union and replace it with a union controlled by
the Respondent, by soliciting an employee to assist the Re-
spondent in getting rid of the Union so that others would more
readily accept the loss of the Union, by implicitly and explicitly
promising the employee that for opposing the Union the em-
ployee would be recalled from layoff, and by maintaining and
enforcing an overly broad prohibition on union activity on its
premises, the Respondent has been interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
6. By laying off of employees Robert Maxwell, Timothy
Colley, Ronald McKenzie, John Cumberlidge, Richard Palmer,
and Greg Brawdy, on July 14, 2003, and by failing to recall
employees Greg Brawdy and Richard Palmer thereafter, the
Respondent has been discriminating in regard to the hire or
tenure or terms and conditions of employment of employees, to
discourage membership in a labor organization, in violation of
Section 8(a)(1) and (3) of the Act.
7. By laying off and recalling employees without regard to
the seniority provisions of the parties’ collective-bargaining
agreement as of July 14, 2003, by withdrawing from the union-
industry pension fund as of July 10, 2003, and thereafter failing
and refusing to make contractually-mandated contributions to
the fund, by failing and refusing to deduct and transmit dues
deductions pursuant to the parties’ collective-bargaining
agreement from July 11, 2003, to September 30, 2004, by repu-
diating the parties’ collective-bargaining agreement as of July
11, 2003, and by failing and refusing the Union’s request to
recognize and bargain with the Union for the purpose of nego-
tiating a successor collective-bargaining agreement, the Re-
spondent has failed and refused to bargain collectively with the
representative of its employees and is in violation of Section
8(a)(1), (5), and (d) of the Act.
8. The unfair labor practices set out in paragraphs 5, 6, and
7, above, affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Based on the foregoing, as well as the December 9, 2005
bench decision and certification, I recommend the following
remedy. Having found that Wheeling Brake Block Manufac-
turing Company and Wheeling Brake Band & Friction Manu-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD508
facturing Company (an integrated enterprise and single em-
ployer, referred to collectively herein as the Respondent) have
engaged in certain unfair labor practices, I find that they are
joint and severally liable for remedying the unfair labor prac-
tices and must be ordered to cease and desist therefrom, and
take certain affirmative action designed to effectuate the poli-
cies of the Act.
The Respondent, having unlawfully laid off employees
Robert Maxwell, Timothy Colley, Ronald McKenzie, and John
Cumberlidge, on July 14, 2003, must make each employee laid
off whole for any loss of earnings and other benefits they may
have suffered in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). In addi-
tion to making them whole in accordance with the preceding, as
to the two employees the Respondent has, to date, failed to
reinstate, Greg Brawdy and Richard Palmer, it must offer each
of them reinstatement to the position they occupied prior to the
layoff, or to an equivalent position should their prior position
not exist, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
The Respondent shall rescind the unlawful rule prohibiting
union activity on its premises, advise employees it has done so,
and that they may engage in union activity on the premises of
the Respondent during nonworking time and in nonworking
areas, and in other areas and other times on such terms as other
nonwork-related activity is permitted, without retribution.
Having found that the Respondent violated Section 8(a)(1)
and (5) by repudiating the parties’ collective-bargaining agree-
ment as of July 11, 2003, and by failing and refusing to make
contractually required payments into the union-industry pen-
sion plan, from July 10, 2003, the Respondent shall make the
unit employees whole, with interest, for any loss of pay or
benefits they may have suffered as a result, in the manner pre-
scribed by Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971). The Respondent shall make
all contractually required contributions to the union-industry
pension plan that have not been made since July 10, 2003, in-
cluding any additional amounts due the plan, in accordance
with Merryweather Optical Co., 240 NLRB 1213, 1216
(1979).16 The Respondent shall also reimburse unit employees,
with interest, for expenses ensuing from its failure to make the
required contributions, as set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir.
1981). Such amounts are to be computed in the manner set
forth in Ogle Protection Service, supra. The Respondent shall
reimburse the Union, with interest, for lost dues that should
have been paid contractually but were not paid to the Union
because of the employer’s repudiation of the labor agreement
including the dues checkoff provision, for the term of the
agreement, which ran until September 30, 2004, in the manner

16 To the extent that an employee has made personal contributions to
a benefit or other fund that have been accepted by the fund in lieu of
the Respondent’s delinquent contributions during the period of the
delinquency, the Respondent will reimburse the employee, but the
amount of such reimbursement will constitute a setoff to the amount
that the Respondent otherwise owes the fund.
set forth in Ogle Protection Service, supra. All interest due and
owing in accordance with this paragraph shall be computed as
prescribed in New Horizons for the Retarded, supra.
The Respondent shall, upon demand of the Union, meet and
confer with the Union for the purpose of bargaining a successor
collective-bargaining agreement.
The Respondent shall further be ordered to refrain from in
any like or related manner abridging any of the rights guaran-
teed to employees by Section 7 of the Act.
The Respondent shall post an appropriate informational no-
tice, as described in the attached Appendix. This notice shall
be posted in the Employer’s facility or wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. When the notice is is-
sued to the Employer, it shall sign it or otherwise notify the
Region what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, including the December 9, 2005 bench decision
and certification, I issue the following recommended17
ORDER
The Respondent, Wheeling Brake Block Manufacturing
Company and Wheeling Brake Band & Friction Manufacturing
Company (an integrated enterprise and single employer),
Bridgeport, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from:(a) Informing employees that the
Respondent is going to get rid of the Union and replace it with
a union controlled by the Respondent, soliciting employees to
assist the Respondent in getting rid of the Union so that other
employees would more readily accept the loss of the Union,
implicitly and explicitly promising employees that by opposing
the union employees would be recalled from layoff.
(b) Maintaining and enforcing an overly broad prohibition on
union activity on its premises.
(c) Laying off and failing to recall employees to rid itself of
the Union and union supporters.
(d) Failing and refusing to abide by and repudiating the col-
lective-bargaining agreement, including the seniority, pension
contribution, and dues checkoff provisions of the collective-
bargaining agreement.
(e) Upon request, failing and refusing to recognize and bar-
gain a successor collective-bargaining agreement with the Un-
ion.
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this Order offer full rein-
statement to employees Greg Brawdy and Richard Palmer to
their former jobs or, if those positions no longer exist, to sub-

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
WHEELING BRAKE BLOCK MFG. CO. 509
stantially equivalent positions without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
(b) Make employees Robert Maxwell, Timothy Colley,
Ronald McKenzie, John Cumberlidge, Greg Brawdy, and Rich-
ard Palmer, whole with interest, in the manner set forth in the
remedy section of this Decision and Order for any loss of earn-
ings or other benefits resulting from the layoff described in this
decision and order.
(c) Make all affected employees whole, with interest, in the
manner set forth in the remedy section of this decision and
order, for any loss of earnings or benefits resulting from the
repudiation of the collective-bargaining agreement, including
the repudiation of the provisions of the collective-bargaining
agreement regarding seniority and pension.
(d) Reimburse the Union, with interest, for dues the Respon-
dent was required but failed to withhold and transmit under the
collective-bargaining agreement, in the manner described in the
remedy section of this decision and order, resulting from the
Respondent’s repudiation of the dues checkoff provision of the
collective-bargaining agreement.
(e) Make all contractually required contributions to the un-
ion-industry pension plan that were not made, including any
additional amounts due the plan, in the manner described in the
remedy section of this decision and order.
(f) Reimburse unit employees, with interest, for expenses en-
suing from its failure to make required contributions to the
union-industry pension plan, in the manner described in the
remedy section of this decision and order.
(g) On request, bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the unit
described in the decision and order concerning terms and condi-
tions of employment and, if an understanding is reached, em-
body the understanding in signed agreements.
(h) Rescind the rule prohibiting union activity on the prem-
ises of the Respondent and advise employees that it has done
so, and that they are free to engage in union activity at the Re-
spondent’s facility during nonworking time and in nonworking
areas, and in any other areas and other times on such terms as
other nonwork-related activity is permitted, without retribution.
(i) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(j) Within 14 days after service by the Region, post at its fa-
cility in Bridgeport, Ohio, copies of the attached notice marked
“Appendix B.”18 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-
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 July 10, 2003.
(k) 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.

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”