NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Homer D. Bronson Company and United Automobile, Aerospace & Agricultural Implement Workers of America, Region 9A, AFL–CIO and Jozef Odorczuk. Cases 34–CA–9499, 34–CA–9514, 34–CA–9829, and 34–CA–9748

March 16, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman
and Walsh

On October 10, 2002, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondent and the General Counsel each filed exceptions, a supporting brief, and an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified.4

1. Threats of Plant Closure

Facts

The judge found, and we agree, that the Respondent—in campaign speeches and posters—unlawfully threatened employees with plant closure and job loss if they chose union representation. In adopting the judge’s findings that this conduct violated Section 8(a)(1), we rely particularly on speeches made by senior managers of the Respondent on November 22 and December 5, 2000.

The Respondent conducted about 10 meetings with employees during the organizing campaign. In a November 22 meeting, Charles Spencer, president of the Respondent’s Auto Group, spoke to employees about the Respondent’s history. Spencer prefaced his remarks by telling employees that “those who cannot read history are bound to repeat it.” He then told the employees that at one time the company had manufacturing plants in Chicago and Beacon Falls, Connecticut, but—after repeated strikes by the Steelworkers Union, which represented the employees—both plants closed and the Beacon Falls operation was relocated to its present Winsted, Connecticut site. Spencer reminded employees that “Winsted of course has always been a non-union facility.” He concluded his speech by stating that the “history of [the Respondent] and unions has not been a good one,” and suggested that employees ask themselves, “will this Union help us to be responsive, flexible and competitive as required by our customers? Or will this Union do to this new Homer Bronson what it did to the old Homer Bronson.”

Spencer and Blancato, the Respondent’s president of manufacturing, both spoke at the December 5 employee meeting. In his speech, Blancato summarized the Union’s recent “strike history” at several area companies. He stated that the Union’s actions had resulted in some employees losing their jobs through subcontracting or plant closure. Blancato told employees that although “strikes are not inevitable” after a union is selected as a bargaining representative, “where there are unions . . . there are strikes.” He added that the union seeking to organize the Respondent’s employees was “strike happy.”5 Spencer, during his portion of the meeting, presented a slide show that included a chart purporting to “show that over the last 15 years, 13 companies have closed, putting 4141 employees who used to be represented by the UAW out of work.” Spencer told the employees that the closings showed that “not only can the Auto Workers Union not guarantee job security but, in fact, the opposite may be true.”

Employee Schaffer testified that, in response to Blancato’s litany of union-represented companies that had closed, he sought clarification by asking whether Blancato was “saying that we will move or close if the Union comes in.” Blancato replied, “no, I’m saying we could move or we could close if the union comes in.”

During the election campaign, in addition to delivering those speeches, the Respondent displayed posters throughout the plant highlighting 5 of the 13 closed companies discussed in the December 5 slide show. The posters contained the statement, “These are just a few examples of plants where the UAW used to represent employees,” and posed the question: “Is this what the UAW calls job security?”

Analysis

The law has been well settled since the Supreme Court’s 1969 decision in Gissel Packing6 that an employer is free to predict the economic consequences it foresees from unionization, so long as the prediction is

carefully phrased on the basis of objective fact to convey [its] belief as to demonstrably probable consequences beyond [its] control. . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation . . . without the protection of the First Amendment.

395 U.S. 595, 618. Absent the necessary objective facts, employer predictions of adverse consequences arising from unionization are not protected by Section 8(c); rather, they constitute threats that violate Section 8(a)(1).

The judge found that the Respondent’s speeches and posters contravened Gissel’s guidelines in two respects. First, they contained no objective facts to support the Respondent’s clear implication that the referenced plant closings were caused solely by the fact that the “strike happy” UAW represented those employees. Second, the Respondent told its employees that “where there are unions, there are strikes,” and that two of its own plants had closed following a series of strikes. Through these messages, the judge found that the Respondent created the impression in the minds of employees that there was an “inevitable linkage between unionization and job loss.” The judge ultimately found that employees would reasonably infer from the Respondent’s speeches and posters that “a vote for the Union will threaten [the employees’] future employment.” Accordingly, the judge concluded that the Respondent violated Section 8(a)(1) by implicitly threatening employees with plant closing and job loss if they voted for union representation.

We agree with the judge that the Respondent’s speeches and posters, taken as a whole, conveyed unlawful threats of adverse consequences from unionization, rather than lawful, fact-based predictions of economic consequences beyond the Respondent’s control.7 We also find that Stanadyne Automotive Corp., 345 NLRB No. 6 (2005), and Smithfield Foods, Inc., 347 NLRB No. 109 (2006), on which the dissent relies, are distinguishable in several respects.8 Although the employer’s campaign speeches and posters in Stanadyne also referred to closed facilities where employees had been represented by the petitioning union, the Board majority in that case emphasized that the employer “repeatedly made clear” and “said several times” that it was not making predictions. 345 NLRB No. 6, slip op. at 5, 6. Similarly, in Smithfield, the Board majority found it significant that the employer several times “expressly disclaimed any certainty about the connection between the previous closures” and the union. 347 NLRB No. 109, slip op. at 3. Here, by contrast, Spencer, the president of the Respondent’s Auto Group, told employees on November 22 that two of its facilities had closed because the Respondent was “fed up and tired of strikes,” and that employees should ask themselves, “will this Union do to this new [company] what it did to the old [company].” (Emphasis added.) Through those statements, the Respondent indicated to employees that strikes by “this Union” were the cause for the closure of its Chicago and Beacon Falls facilities.9 The Respondent did not, moreover, “repeatedly” emphasize that it was not making predictions for the future.10 Rather, by reminding employees in this speech of the adage that “those who cannot read history are bound to repeat it,” a statement missing from the speeches in Stanadyne and Smithfield, the Respondent left no doubt in employees’ minds that, in the event of another series of strikes, history would repeat itself, and the Respondent would, on its own initiative, choose to close or move. The Respondent’s labeling the Union “strike happy” was a way of emphasizing that, if the employees elected representation, it would inevitably lead to plant closure and resulting job loss.

Stanadyne and Smithfield are further distinguishable from this case by virtue of Spencer’s remarks on December 5. Spencer stated that, not only was the Union unable to guarantee job security, as evidenced by the closure of numerous named companies whose employees it represented, but that those closures demonstrated that selecting the Union might actually “guarantee” the loss of jobs. None of the statements made in Stanadyne or Smithfield so clearly threatened job loss.11

Finally, in Stanadyne and Smithfield there was no employee-management interchange like that between employee Schaffer and Blancato, the Respondent’s president of manufacturing, in which Blancato, in response to Schaffer’s question about the possibility of moving or closing if the Union became the employees’ bargaining representative, stated that it “could” happen. We agree with the judge that Schaeffer’s question presented Blancato with “an opportunity to disavow any implication of a threat,” but that Blancato instead used the question as an opportunity to reiterate an implied threat of plant closure if employees chose union representation.12 Thus, we find the totality of the speeches and posters in the instant case to be qualitatively more coercive than those in Stanadyne and Smithfield.

Contrary to the dissent, we find that the Respondent was not merely informing employees of the potential negative effects of unionization based on any objective facts. Rather, the speeches implied that a vote for the Union might cause the Respondent to close “on its own initiative for reasons unrelated to economic necessities.” Gissel, supra, 395 U.S. at 618. The Supreme Court has found such statements to be threats of retaliation unprotected by the First Amendment.

In sum, we find that the Respondent’s speeches, rather than containing reasonable, fact-based predictions of the consequences of unionization, constituted threats of plant closure in retaliation for the unionization of its facility. Accordingly, we conclude that the Respondent violated Section 8(a)(1).13

2. Remedy

Although the judge found that the Respondent’s unfair labor practices were of the “type that have been found sufficiently serious to support a bargaining order” under Gissel Packing, he declined to recommend such an order. Instead, the judge found that the Board’s traditional remedies, supplemented by a special remedy discussed below, were sufficient to erase the effects of the violations. The General Counsel excepts, arguing that a Gissel bargaining order is warranted.

For the following reason only, we agree with the judge that a Gissel bargaining order is not appropriate here. In Smithfield Foods, Inc., supra, 347 NLRB No. 109, slip op. at 8, we concluded that, because of the delay in processing that case, “a Gissel bargaining order would likely be unenforceable.” See also Wallace International de Puerto Rico, 328 NLRB 29 (1999).14 Here, too, given the length of time spent in the processing of this case, it is doubtful that a Gissel bargaining order would be enforced. The unfair labor practices occurred in 2000–2001, about 6 years ago. The delay at the Board following issuance of the judge’s decision exceeds that in Wallace, and the 6 years that have elapsed since the commission of most of the unfair labor practices approaches the 7-year span in Smithfield Foods between the unlawful conduct and issuance of the Board’s decision.

We believe that there are several explanations for the delay, including the number and complexity of the issues, the length of the record, and the turnover and vacancies on the Board throughout the period. We recognize, however, that a reviewing court could reasonably conclude that the delay was unjustified. Accordingly, as in Smithfield Foods and Wallace, “rather than possibly engender further litigation and delay over the propriety of a Gissel bargaining order,”15 we shall primarily rely on the Board’s traditional remedies to erase the effects of the Respondent’s unfair labor practices.16

Nevertheless, we agree with the judge that a special remedy is warranted in order to dissipate as much as possible any lingering effects of the Respondent’s unfair labor practices. Specifically, we find that the Respondent’s unfair labor practices are sufficiently serious and widespread to warrant having the attached notice to employees read aloud to the employees, so that they “will fully perceive that the Respondent and its managers are bound by the requirements of the Act.” Federated Logistics & Operations, 340 NLRB 255, 258 (2003), affd. 400 F.3d 920, 929–930 (D.C. Cir. 2005). See also McAllister Towing & Transportation Co., 341 NLRB 394, 400 (2004), enfd. 156 Fed.Appx. 386 (2d Cir. 2005); Blockbuster Pavilion, 331 NLRB 1274, 1276 (2000). The reading of the notice “will ensure that the important information set forth in the notice is disseminated to all employees, including those who do not consult the Respondent’s bulletin boards.” Federated Logistics, supra, 340 NLRB at 258, quoting Excel Case Ready, 334 NLRB 4, 5 (2001). The “public reading of the notice is an ‘effective but moderate way to let in a warming wind of information and, more important, reassurance.’” McAllister, 341 NLRB at 400.

The notice must be read by the Respondent’s president of manufacturing, Blancato (who was directly and personally involved in many of the violations) or, at the Respondent’s option, by a Board agent in the presence of Blancato. As we stated in Federated Logistics, the “presence of a responsible management official when a government official informs employees of the terms of [the] remedial order is not demeaning, but only a minimal acknowledgment of the obligations that have been imposed by law.” 340 NLRB at 258 fn. 12. The employees in this case are “entitled to at least that much assurance that their organizational rights will be respected in the future.” Id.17

ORDER

The National Labor Relations Board adopts the recommended order of the administrative law judge, as modified below, and orders that the Respondent, Homer D. Bronson Company, Winsted, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraphs 2(e) and 2(f).

“(e) Make Roberta Tyree whole for any loss of earnings suffered as a result of the discriminatory denial of overtime, which began on or about October 10, 2000, in the manner set forth in the remedy section of the judge’s decision.

(f) Make whole the employees who were denied wage increases in fall 2000 because of the union campaign, as set forth in the remedy section of the judge’s decision.”

2. Substitute the following for paragraph 2(i).

“Within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest possible attendance, at which the attached notice is to be read to the employees by the Respondent’s president of manufacturing, Joseph Blancato or, at the Respondent’s option, by a Board agent in Blancato’s presence, with translation available for Spanish- and Polish-speaking employees.”

3. Substitute the attached notice for that of the administrative law judge.

Dated, Washington, D.C. March 16, 2007

______________________________________

Robert J. Battista, Chairman

______________________________________

Wilma B. Liebman, Member

______________________________________

Dennis P. Walsh, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not promulgate and maintain overly broad and discriminatory solicitation and distribution rules, including rules prohibiting employees from discussing the Union at work.

We will not create the impression that we are watching your activities on behalf of United Automobile, Aerospace & Agricultural Implement Workers of America, Region 9A, AFL–CIO (the Union), or any other union.

We will not threaten you with job loss, the closing of our facility, or other unspecified reprisals if you support the Union.

We will not threaten to and withhold wage increases from you because you have sought union representation.

We will not impliedly promise you raises and improved benefits to get you to stop supporting the Union.

We will not give you wage increases in order to convince you not to support the Union.

We will not take away your overtime or light duty work because you support the Union.

We will not fire you because you support the Union.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Federal labor law.

We will rescind the overly broad and discriminatory rules promulgated during the union campaign that prohibit employees from engaging in union solicitation and distribution and from discussing the Union at work.

We will, within 14 days from the date of the Board’s Order, offer Viterbo (Tony) Pimentel full reinstatement to his former light duty job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We will make Viterbo (Tony) Pimentel whole for any wages and benefits he lost because we denied him light duty work and fired him.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to Pimentel’s unlawful discharge, and we will, within 3 days thereafter, notify Pimentel in writing that this has been done and that the discharge will not be used against him in any way.

We will make Roberta Tyree whole for any wages she lost because we denied her overtime on or after October 10, 2000, plus interest.

We will make whole those of you who lost wages because we held back on giving you your wage increases during the union campaign, plus interest.

Homer D. Bronson Company

Terri A. Craig, Esq. and Thomas E. Quigley, Esq., for the General Counsel.

Edward F. O’Donnell Jr., Esq. and Nicholas J. Grello, Esq. (Siegel, O’Connor, Zangari, O’Donnell & Beck), for the Respondent.

Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda, Meiklejohn & Kelly), for the Charging Party.

DECISION

Statement of the Case

Michael A. Marcionese, Administrative Law Judge. I heard this case in Hartford, Connecticut, on December 3, 4, 5, and 6, 2001, January 7, 8, 9, and 10, and February 14, 2002. The charges in Cases 34–CA–9499 and 34–CA–9514 were filed by United Automobile, Aerospace & Agricultural Implement Workers of America, Region 9A, AFL-CIO, the Union, on December 1 and 13, 2000, respectively.[1] Jozef Odorczuk, an individual, filed the charge in Case 34–CA–9748 on July 3, 2001. An amended consolidated complaint issued, based upon these charges and amended charges, on August 22, 2001.[2] On September 11, 2001, the Union filed a new charge, in Case 34–CA–9829, which it amended on November 14, 2001. Based upon this amended charge, a complaint was issued on November 15, 2001. The amended consolidated complaint and the new complaint were further consolidated by order dated November 15, 2001. The General Counsel further amended the complaints several times at the hearing.[3]

The complaints, as amended, allege that Homer D. Bronson Company (he Respondent) violated Section 8(a)(1) of the Act, through various supervisors, by threatening employees, promising and granting benefits to employees, making statements to employees that created the impression of surveillance and suggested that union representation would be futile, promulgating and discriminatorily enforcing rules that unlawfully restricted employees’ right to engage in union activities, and by discharging its supervisor, Odorczuk, because he refused to commit unfair labor practices. The complaints allege further that the Respondent violated Section 8(a)(1) and (3) of the Act by denying overtime to employee Roberta Tyree and denying light-duty work to employee Viterbo (Tony) Pimentel. The Respondent’s subsequent termination of Pimentel is alleged as a violation of Section 8(a)(1), (3), and (4) of the Act. As a remedy for these alleged unfair labor practices, the General Counsel seeks a bargaining order under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The General Counsel alleges that the Respondent’s grant of benefits also violated Section 8(a)(1) and (5) of the Act if a bargaining order is warranted.

The Respondent filed its answers to the complaints on September 4 and November 28, 2001, respectively. The Respondent amended its answers at the hearing in response to the amendments to the complaints.[4] In its answers, as amended, the Respondent denied that it committed any of the alleged unfair labor practices or otherwise violated the Act. The Respondent asserted affirmatively that a majority of its employees had expressed their desire not to be represented by the Union. The Respondent also asserted that several allegations in the complaints, as amended, were barred by Section 10(b) of the Act.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Respondent, a corporation, manufactures automobile hinges and related products at its facility in Winsted, Connecticut, where it annually purchases and receives goods valued in excess of $50,000 directly from points outside the State of Connecticut. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

As noted above, the Respondent is a manufacturer of parts used primarily in the automobile industry. Charlie Spencer was the president of the Respondent’s auto group in the summer 2000.[5] Joseph Blancato was the vice president of manufacturing. In September, Blancato was promoted to president. In the fall of 2000, the Respondent employed approximately 78 production and maintenance employees at its Winsted manufacturing facility. David Abraham was the Respondent’s plant manager at the time. Odorczuk and Derek Ewing were the first-shift supervisors and John Kisiel was the Respondent’s supervisor on second and third shifts. The Respondent has admitted that Spencer, Blancato, Abraham, Odorczuk, Ewing, and Kisiel were its supervisors and agents within the meaning of the Act at all times material to the complaint.

In early September, Dale Schaffer, an employee of the Respondent, contacted the Union about representing the Respondent’s employees. Donna Becotte, an organizer on the Union’s staff, met with Schaffer and soon thereafter, an organizing drive commenced. Employees first signed a petition authorizing the Union to represent them at a meeting at the Log House Restaurant in Winsted, Connecticut, on October 5.[6] The Union filed a representation petition with the Board’s Regional Office in Hartford on November 3. The Union filed with this petition, as its showing of interest, an 11 page union authorization petition bearing 48 signatures. On November 14, the Respondent and the Union signed a Stipulated Election Agreement setting December 14 as the date on which employees could vote whether to be represented by the Union. That election was never held because the Union requested, based on the instant unfair labor practice charges, that further processing of its petition be held in abeyance.

The General Counsel alleges that the Respondent engaged in an unlawful campaign to defeat the Union in October and November and that its unlawful conduct continued after the election was canceled. The General Counsel argues that the Respondent’s unfair labor practices were sufficiently egregious to have destroyed the laboratory conditions necessary to conduct an election and that the Board’s traditional remedies will not cure the effects of these unfair labor practices. Under the General Counsel’s view of the case, the only meaningful remedy is a bargaining order based upon a card majority obtained by the Union before the Respondent’s unlawful campaign had its destructive effect. The Respondent counters that the only evidence that it committed the alleged unfair labor practices is the testimony of witnesses who are not credible and that company records demonstrate that it did not grant benefits or engage in any other discriminatory conduct in response to the Union’s organizing campaign. The Respondent argues further that, even if the General Counsel can prove that unfair labor practices were committed, a bargaining order is not the appropriate remedy here because a majority of employees have already indicated to the Respondent that they do not want the Union to represent them. The Respondent contends that the Board’s traditional remedies are more than adequate to cure the lingering effects of any unfair labor practices and that a Board-conducted election is the best way to determine the true wishes of the employees.

A. The Evidence

1. The October 5 union meeting

Becotte, Schaffer, and several other witnesses testified for the General Counsel regarding the October 5 meeting at the Log House Restaurant. All employees who attended this meeting signed a sheet when they entered the room. This sign-in sheet, which is in evidence, contains 28 signatures. Pimentel testified that all but one of the individuals whose signature appears on the sheet were at the meeting. According to Pimentel, employee Jaroslaw Ogniewski was not at the meeting, but his mother, Wladyslawa Ogniewska, was and she signed his name on the sign-in sheet. The signatures of both Ogniewskis appear to be the handwriting of the same individual, corroborating Pimentel’s testimony in this regard.

All of the witnesses who were at the meeting recalled that Becotte spoke on behalf of the Union. Although there are some variations in the recollections of the individual employees, which is understandable in light of the passage of time, all were consistent that Becotte discussed the advantages of union representation and described the process for obtaining such representation. These witnesses also recalled that a good portion of the meeting was consumed by the employees themselves voicing their complaints and the problems they were having at work. One of the chief complaints expressed was that many employees had not received a wage increase in a long time.

Toward the end of the meeting, Becotte distributed the petition and told the employees that they would have to sign it if they wanted the Union to represent them. The “petition” consists of 11 pages, each with the following statement:

WE ARE THE UNION!

We the undersigned employees of Homer Bronson[7] authorize the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW to represent us in collective bargaining. We also authorize the UAW to use our names and this petition to show our support for the union.

Each page also contains 11 boxes where employees can fill in their name and other identifying information, and sign, and date the petition. The following statement also appears at the bottom of each page:

It is the policy of the UAW to waive initiation fees for ALL employees who join the union before thirty (30) days after the signing of an initial collective-bargaining agreement.

Although some witnesses testified, on cross-examination, that Becotte said that the petition would be used to get an election, Becotte and the majority of witnesses who were at the meeting recalled that she mentioned an election as only one means to achieve representation. Schaffer, for example, recalled that Becotte told the employees that the Respondent could recognize the Union on the basis of the petition, but that it was more likely that the employer would refuse to recognize the Union and an election would be held. This is consistent with Becotte’s testimony.

Each of the employees who testified authenticated their own signature on the petition.[8] In addition, Pimentel testified that he observed most of the other employees who were at the meeting sign the petition. Schaffer similarly testified that he observed others sign the petition at the meeting, but he was unable to recall specifically which signatures he observed. Dixon testified that he saw three employees who were sitting at his table sign the petition.[9] These three signatures appear on the same page as that of Dixon. Sochon testified that he saw Robert Grundwalski, who was sitting next to him, sign the petition. A review of the 11 petition sheets in evidence shows that 23 signatures are dated October 5, the date of this meeting.

According to Becotte and Schaffer, a handful of employees volunteered at the October 5 meeting to form the organizing committee. These employees were given petition sheets to use to obtain signatures from other employees. Pimentel was one of the employees who took blank petitions. Pimentel identified all the signatures on the 9th and 11th pages of the petition—a total of 14—as those he obtained by visiting employees in their homes.[10] All but two of the signatures he obtained are from Hispanic employees, many with common surnames. Pimentel testified that, when soliciting employees to sign the petition, he told the employees, “we need something different. We don’t have raise. We have to sign it. We needed the Union represent us.” According to Pimentel, he gave one of the sheets to Red Moran, the Union’s staff organizer, and the other to coworker Schaffer.

Roberta Tyree testified that she obtained the signature of employee Victoria Preato, whose name appears on the first page of the petition. Tyree credibly testified that another employee approached her at work and told Tyree that Preato wanted to sign the union petition. Tyree, who was a member of the organizing committee, got a petition from Henry Archambault, another member of the organizing committee and went out to her car with Preato. After Preato signed the petition, Tyree gave it back to Archambault. Although Preato’s signature is undated, Tyree testified that Preato signed the petition on November 2.

Schaffer testified that he solicited a number of signatures on the petitions after the October 5 meeting, but he could not recall the names of any employees he solicited and was unable to authenticate any signature other than his own. Red Moran, the Union’s organizer who joined the campaign in mid-October, testified that he obtained two signatures on the petition during home visits with other members of the committee. According to Moran, he and Schaffer obtained Kurt Parsons’ signature on October 21 when they visited Parsons’ home. This is the same signature that Pimentel testified he obtained from Parsons in downtown Winsted when he saw Parsons riding his motorcycle. Moran testified that he also obtained the signature of Barry Oliver, which is dated October 31. Although Moran was with two members of the organizing committee, Pat Finn and Jean Olivieri, his testimony regarding this solicitation was not corroborated.

In addition to the above testimony, the General Counsel placed in evidence W-4 and I-9 forms obtained from the Respondent’s personnel files for the purpose of authenticating the signatures on the Union’s petition by a handwriting comparison. The original 11-page petition that was filed with the Union’s petition on November 3 contains 48 signatures. The signatures of two individuals, Henry Archambault and Jaroslaw Ogniewski, appear twice.[11] Although I am not a handwriting expert, a comparison of the signatures convinces me that most are genuine. A more detailed discussion of the authentication issue will be saved for later in this decision.

2. The Respondent’s knowledge and response to the
Union’s campaign

Blancato testified that he learned from Schaffer’s supervisor, in late September, that Schaffer was trying to organize a union. Blancato immediately contacted his attorney and, within days, held the first of a series of meetings with the employees to convey the Respondent’s position on the Union. This first meeting may have been held even before the employees signed the union petition at the Log House Restaurant. The Respondent’s attorneys prepared scripts for all of the meetings. These scripts are in evidence. According to Blancato, Spencer read the first speech verbatim.[12] Blancato did not speak at this first meeting.

According to the script of Spencer’s first speech, he opened the meeting by telling employees that he was aware of the union talk and that he wanted to “set the record straight.” After taking responsibility for any problems that might exist, Spencer stated the Respondent’s position on the Union in unequivocal terms:

1. We do not want a union here. It is our sincere belief that bringing a union to this operation will not help you, your families, me or this company.

2. We intend to oppose any attempt by any union to get into this company with every proper and legal means available.

3. No one who pushes any union in this company is going to receive any advantage or better treatment of any sort over those who choose not to join a union or vice versa.

Spencer then spoke about union cards and advised the employees to read the card carefully before signing it. He reminded the employees of his open-door policy and urged them to come to him to talk about any issues they had. Spencer then talked about “changes” that the Company had gone through in the preceding 2-1/2 years, in particular the conversion to a cell manufacturing process. Spencer told the employees that these changes were necessary for the Respondent to become “more flexible, responsive and competitive.” He attributed a growth in business with unionized customers in the automotive industry to these changes, warning that unionization could cause the Company to lose its “flexibility, responsiveness and competitiveness.” He concluded the meeting with the following:

DO NOT sign a card or petition thinking that it is an empty gesture. DO NOT sign a card or petition because a friend asks you to. DO NOT sign a card or petition unless you have thought about all the events that are likely to occur from it.

I can not tell you what to do

I can ask you to think—please think about the Route 8 corridor—ask yourself what happened to Scovill, Chase Brass, Anaconda, Seymour Specialty Wire, Century Brass, Plume and Attwood and Torin. All great companies that are gone—every one of them a union shop.

According to Blancato, Spencer gave another prepared speech to the employees a few days after the first. Blancato testified that Spencer read the text of this speech verbatim as well. In the text, Spencer opens the meeting by referring to the previous meeting and acknowledging employees’ complaints regarding the Respondent’s policy on raises. Spencer then articulated for the employees the policy as follows:

Employees are reviewed once a year. Their review is conducted by their immediate supervisor. As a result of that review employees are given a wage increase.

Now under our policy it doesn’t mean that everyone gets a raise. I personally believe that everyone should be judged on their own merits. Frankly some people deserve generous wage increases due to their hard work and commitment to the job. On the other hand, and I’m sure each one of you would agree with me, some folks don’t deserve much of a raise, if any, because they don’t bring the same commitment to the job as others do.

As I said the policy is pretty straightforward. However, I have learned that the problems do not lie with the policy so much as its implementation. It seems that not everyone has had a review in a timely matter. From my perspective there is no excuse for an employee not to receive a review. I spent a little time looking into it and I am trying to determine how this happened. I don’t have all the answers yet, but I do know that some folks have not been reviewed on a yearly basis. This is wrong and I apologize for any mistakes that may have occurred.

Spencer then asked rhetorically why he didn’t solve the problem by giving everyone a raise, and responded by saying he could not do that because it was against the law because of the union situation. Spencer told the employees that, although his hands were tied to that extent (giving employees raises), he would insist that the Respondent’s policy on wage increases be followed and he would insist that employees be reviewed on a timely basis. Spencer ended this speech by referring to disagreements among the employees over the union issue and expressing his opinion that the union “causes distruction [sic] and friction among folks that used to be friends.” Employee witnesses who testified for the General Counsel regarding Spencer’s speeches tended to corroborate the text version in evidence.[13]

After this meeting, Blancato took steps to implement Spencer’s pledge that the Respondent would follow its policy on raises. In a memo to supervisors, dated October 20, Blancato listed the employees who were “due or overdue for an annual performance review.” He referred to the “commitment” that the Respondent had made to its employees to enforce the annual review policy and directed the supervisors to complete reviews for the listed employees no later than October 31. Blancato advised the supervisors further that the reviews “must be an honest representation of the employees contribution to the business since it is the basis for determining wage increases.” There is evidence in the record that the Respondent’s supervisors carried out these instructions. Carol Winegar testified that her supervisor, Kisiel, told her in November that everybody was going to be getting a review and a raise by the end of the year. Winegar had not yet received a raise despite having worked for the Respondent for more than a year. Claude Thibodeau, a/k/a (Frenchie), testified that his supervisor, Ewing, gave him a review in October.[14] At the time, Ewing told Thibodeau that he would probably be getting a raise. Thibodeau had not received a raise in about 2 years. Odorczuk testified that, upon receiving the October 20 memo, he began completing reviews for the five employees in his department. The Respondent’s records show that Odorczuk completed these reviews on November 16.

Odorczuk testified that, 6 months before the union campaign, he had spoken to Blancato and Spencer on behalf of one of his employees, Wladyslawa Ogniewska, who had not had a raise in 3 years. According to Odorczuk, this resulted in her being paid less than new employees who were being hired at the time. According to Odorczuk, Blancato, and Spencer would not give Ogniewska a raise, telling him that if she didn’t like it, she could leave.

3. Restrictions on employee solicitation and distribution

There is no dispute that, prior to the union campaign, the Respondent either did not have, or did not enforce, any restrictions on employee solicitation and distribution. According to the uncontradicted testimony of the General Counsel’s witnesses, it was not uncommon for employees to sell items like Avon products and school fundraisers at work, including during periods when they were at their machines doing work. Blancato himself acknowledged that the Respondent had no rules regarding solicitation and distribution and that it had allowed this activity to go on before the union campaign started.

Tyree testified that, sometime between the October 5 union meeting and November 2, Blancato approached her at her machine and asked her to “do him a favor and not have people sign union cards on company time.”[15] When Tyree denied that she was doing this, Blancato told her to tell whoever was doing it not to sign cards on company time. Tyree testified further that Blancato acknowledged to her that nothing had ever been said about people selling Avon and other things, but that “with the Union cards, it was something different.” On cross-examination, Tyree was certain that Blancato did not say that he had to allow her to solicit union cards because he had let her sell Avon.

Schaffer testified to a similar conversation with Blancato in early October. According to Schaffer, Blancato approached him while he was working on the lift truck. Blancato asked Schaffer not to promote the Union on company time. Schaffer and Blancato then proceeded to discuss the issues in the plant that led employees to seek union representation. Schaffer cited Respondent’s “sloppy” approach to raises and the “belligerent” attitude of some of the managers. Schaffer testified that Blancato acknowledged there was a problem with employee reviews and said that the Respondent was working on them. Odorczuk testified that Blancato told him and Ewing, the other first shift supervisor with whom Odorczuk shared an office, that he didn’t want employees talking in the shop anymore and that, if they saw groups of employees talking, to break them up.

Blancato acknowledged speaking to Tyree and Schaffer about union solicitation but disputed their versions of the conversations. According to Blancato, Supervisor Ewing complained to him about Schaffer, Tyree, and Henry Archambault “congregating” and spending a lot of time away from their workstations. Blancato testified that Ewing told him he believed they were talking about the Union. Ewing corroborated this testimony but recalled telling Blancato about a fourth, unnamed employee who was also involved in these union discussions on the work floor. Blancato testified further that he approached Tyree at her machine in response to Ewing’s complaint and told her that because the Respondent had allowed her to solicit Avon in the past, she had a right to solicit for the Union, but, as with her Avon solicitation, she should not allow her union solicitation to interfere with production. Blancato testified that he had a similar conversation with Schaffer. Blancato testified that Schaffer was very open about his support for the Union and spoke to Blancato about it on several occasions. He acknowledged that Tyree, in contrast, had not been an open union supporter prior to his conversation with her and that she became upset when he spoke to her about union solicitation.

Pimentel testified that, sometime after the October 5 meeting, but before November 3, Dave Abraham, the Respondent’s plant manager, spoke to him about conversations he was having with employees about the Union. According to Pimentel, Abraham told him that the Respondent paid him to work, not to talk to the people and that, while he was at work, he was to sit down and work, not talk. Odorczuk also testified that Abraham instructed him not to let employees talk about the Union in the shop. Abraham denied having any conversation with Pimentel about the Union and denied telling Odorczuk or any employee directly that employees could not talk about the Union.

Carol Ann Winegar testified that, within a week of the October 5 meeting, her supervisor on third shift, Kisiel, approached a group of employees while they were outside on a smoking break and told them that he didn’t want anyone on his shift to discuss the Union on the premises. Kisiel denied this occurred. He acknowledged talking to employees during smoking breaks about the Union by expressing his opinion when asked for it, but denied interfering with any employees conversations on the subject.

4. Blancato’s conversations with Pimentel

Pimentel testified that he had several conversations with Blancato after the October 5 union meeting. He was vague as to the dates and times of these conversations. Pimentel testified that the first meeting was in Blancato’s office shortly after he signed the petition. According to Pimentel, Blancato called him to the office and told him that he knew Pimentel was talking with people in the Company about the Union. Blancato told Pimentel that the Respondent didn’t want the Union and that if the Union came in, Pimentel would have to pay $50–60 from his pocket, presumably a reference to union dues. Pimentel testified further that Blancato told him “now was the time” that the Company could give employees anything they wanted. Blancato then referred to a job in the office in which Pimentel had previously expressed interest, telling Pimentel he had an interview for it the following Monday. According to Pimentel, he had learned from another employee, before this meeting, that the Respondent was advertising for an accounting position in the office. Because Pimentel had been an accountant in his native Dominican Republic, he had already approached Blancato and expressed interest in the job. Blancato had told him at that time to talk to Cindy Murphy in human resources. Pimentel testified that when he spoke to Murphy, she told him she would speak to Blancato. Pimentel had not heard anything further before being called to Blancato’s office after the union meeting.

Pimentel testified that he met with Blancato in his office on another occasion regarding a problem another employee, Maria Nova, was having with her leadperson, Mary Simmons. According to Pimentel, after discussing Nova’s problem, Blancato told Pimentel that he was still speaking with the people about the Union and that Blancato had told Pimentel he wanted him to stop doing this. Blancato told Pimentel to remember that he had a family to support and reminded him that he was on light duty. Pimentel testified that Blancato also said, at both meetings, that if the Union came in, the Respondent would close its doors. On cross-examination, Pimentel acknowledged that he did not include this last statement in the description of this conversation in his pretrial affidavit.

Pimentel testified that, after the October 5 meeting, he was followed by Ewing or Simmons anytime he got up from his work area, even when he went to the bathroom. According to Pimentel, if he stopped to talk to someone, Ewing or Simmons would tell him to get back to work. Pimentel claimed that this occurred even on occasions when he had to drive the forklift to get material in other parts of the plant. The evidence in the record shows, however, that Pimentel did not drive the forklift in the fall of 2000.

Blancato recalled having two conversations with Pimentel in the fall of 2000, both of which were very different from Pimentel’s testimony. According to Blancato, Pimentel first approached him on the shop floor in late September about an ad that the Respondent had run in the local newspaper for an accounting clerk. Pimentel told Blancato that he had accounting experience from his native country and asked to be considered. Blancato told Pimentel that the Respondent had received resumes in response to the ad and was in the process of interviewing. He told Pimentel that he would arrange with Murphy for Pimentel to be interviewed by Bill Nemec, the Respondent’s controller at the time who was hiring for that position. Blancato testified that he spoke to Murphy after his conversation with Pimentel and that she told him that Pimentel had already talked to her about the job and that she had set up an interview for Pimentel. According to Blancato, Pimentel did not show up for the interview. Blancato denied there was any mention of the Union in this conversation. Murphy corroborated Blancato’s testimony about this issue.[16]

Blancato testified that his second conversation with Pimentel occurred in early October when Pimentel came into Blancato’s office to complain about his supervisor, Ewing, and lead, Simmons, being “on his back.” Blancato told Pimentel that he had received reports from Ewing and Simmons about Pimentel being out of his work area and not doing his job. He told Pimentel to go back to work. When Pimentel repeated his complaint that Ewing and Simmons were on his back, Blancato again told him to go back to his area and do his job. Blancato denied making any threats or promises to Pimentel and specifically denied making the alleged 8(a)(1) statements in his conversations with Pimentel. Ewing testified that Simmons complained to him in October/November that Pimentel was constantly out of his work area and that she could not get her production out because of this. Ewing testified that he spoke to Pimentel about this and told him to stay at his workstation. Simmons did not testify.

5. Blancato’s conversations with other employees

As noted above, Blancato’s admonition to Tyree regarding card solicitation upset her. Tyree testified that when Blancato walked by her machine again, she called him over and told him that she was upset that he was assuming that she did something, i.e., solicited union cards, that she didn’t do. She then reminded him of a recent incident in which another manager had yelled at her. She told Blancato that when she complained about the way she had been treated, nothing was done. Blancato then invited Tyree into his office to talk further. According to Tyree, the subject of the Union came up again during her conversation with Blancato in his office. Tyree testified that Blancato told her that he didn’t feel that employees needed a union. He told her that he was in charge now and that things would be different. The conversation also included a discussion of her boyfriend who had also worked for the Respondent until he was fired in the spring. Tyree denied rumors that her boyfriend was the one behind the union drive. Tyree then asked if the rumors she heard, that the Respondent wanted to get rid of her, were true. Blancato told Tyree that the rumors were not true and asked her why he would have offered her a cell leader position if he wanted to get rid of her. Tyree testified that she herself did not understand why the Respondent had offered her a cell leader position because Spencer had already accused her of saying bad things about the Company. Tyree became distraught during her testimony about these interactions with Blancato, crying while on the witness stand.

Blancato acknowledged having this meeting in his office with Tyree after she became upset during their conversation on the shop floor. He corroborated Tyree’s testimony that they discussed her boyfriend’s termination and the “rumor” that he wanted to fire her. Blancato testified that he told Tyree to come see him if she ever heard rumors in the factory that upset her. Blancato denied that there was any mention of the Union during this conversation. According to Blancato, he and Tyree both said, at the beginning of the meeting, “this is not a conversation about the Union.”

As noted above, Blancato told Schaffer in October that he was aware of the employees’ concerns about raises not being given and that he was working on the problem. Schaffer testified that he had another conversation with Blancato in mid-December in which he asked about raises. According to Schaffer, Blancato told him at that time that raises and anything else “in a positive standing” could not happen while the “union negotiations” were going on. Blancato did not specifically contradict this testimony. He did generally deny threatening employees that Respondent would withhold wage increases or other benefits because of the Union.

Odorczuk testified that he attended several meetings in Blancato’s office with Jaroslaw Ogniewski, a Polish-speaking employee in his department. Odorczuk served as Blancato’s translator. According to Odorczuk, Blancato tried to convince Ogniewski that he could get a better job and make more money without the Union. Odorczuk testified that Blancato told Ogniewski that “someday you could make more money than Joe [Odorczuk].” Blancato also told Ogniewski that he didn’t want Jaroslaw or his mother (Wladyslawa Ogniewska), or anyone else to join the Union. Blancato admitted meeting with Jaroslaw Ogniewski and Odorczuk, but denied making any promises or otherwise violating the Act. According to Blancato, Odorczuk brought Ogniewski to his office and said that Ogniewski wanted to tell Blancato personally that he was not in favor of the Union. Ogniewski then said the same thing. Blancato admitted that he then reiterated the position expressed at company meetings with employees that the Respondent did not think the employees needed a union. It is undisputed that Ogniewski eventually was promoted to a job on the hinge line that paid more money than his job working for Odorczuk.

6. Roberta Tyree’s overtime

Tyree testified that, prior to the union meeting at the Log House Restaurant, she routinely worked 1-1/2 to 2 hours of overtime each day before the start of her regular shift at 7 a.m. She had been working this overtime since April or May on the hinge line to fill in for an injured employee. Her boyfriend, John Collins, had been the foreman on the hinge line before his termination. Tyree testified that she had also worked Saturday overtime on the hinge line until June or July when she told her supervisor, Ewing, that if she had to work on the hinge line, she didn’t want to come in on Saturdays anymore.[17] Tyree testified further that, after she attended the union meeting, Ewing told her to start reporting for work at 7 a.m., her normal start time. The only explanation she received at the time was that Plant Manager Abraham told Ewing that, if Tyree didn’t want to work Saturday overtime, she could not work overtime during the week. Tyree did not work any overtime again until after the first of the year.

A computer printout showing the times Tyree punched in and out on the timeclock supports her testimony. The printout covers the period from July 31 through January 20, 2001, and shows that she punched in by 6 a.m. the week of July 31 and then began punching in before 5:30 every morning that she worked through October 6. From October 10 through the end of the period covered by the printout, Tyree never punched in before 7 a.m. This record also shows that she worked only two Saturdays between July 31 and October 10, i.e., September 9 and October 7, and did not work any Saturday again until the first of the year. The printout shows that she worked every Saturday in January 2001. Copies of Tyree’s pay stubs in evidence show that she was paid overtime in every week from the pay period ending June 9 through the pay period ending October 8, but received no overtime pay through the remainder of the year.[18] A summary of the Respondent’s payroll records prepared by the General Counsel reveals that all employees who were assigned to the hinge line were paid some overtime during the period October 10 through December 2, and some received a substantial amount of overtime during this period.

Odorczuk testified for the General Counsel that he was in the office he shared with Ewing when Abraham came in and said to Ewing, “Roberta Tyree and Hank Archambault are not working one more hour of overtime.” According to Odorczuk, this occurred after the Respondent became aware of the Union. As previously noted, Archambault was another member of the Union’s in-plant organizing committee.[19]

The Respondent did not deny that Tyree was not assigned overtime after October 8. Ewing testified, however, that Tyree worked hinge line overtime until she chose not to work it. He testified that Tyree told him one time in October that, if she was coming in that Saturday to work the hinge line, she was not interested. Although Ewing acknowledged that she was only talking to him about that particular Saturday, he stopped assigning her any overtime after that. Abraham testified that Ewing told him in early October that Tyree did not want to work Saturday overtime on the hinge line anymore. According to Abraham, he asked Tyree himself if she wanted to work the overtime anymore and she said no. Abraham denied instructing Ewing to take overtime away from Tyree because of the Union.

7. November 3 demand for recognition

On Friday, November 3, about noontime, a group of employees, including Schaffer and Pimentel, went to Blancato’s office with a letter prepared by the Union and signed by the employees on the organizing committee. The letter advised the Respondent that a majority of employees had designated the Union as their bargaining representative and sought recognition. Schaffer testified that he tried to hand the letter to Blancato, saying that the letter was from the Union. Before he could say anything else, Blancato told him to get out of his office and to give the letter to the NLRB. The employees then went upstairs to Spencer’s office to try to give him the letter but Blancato got there before they did and turned them away before Schaffer could say anything. The employees then went back to the shop floor and tried to give the letter to Plant Manager Abraham and Supervisor Ewing and again were rebuffed. Pimentel corroborated Schaffer regarding the employees’ efforts to deliver the letter. Pimentel also testified specifically that he was the one who spoke when the employees tried to present the petition to Ewing. According to Pimentel, he told Ewing, in heavily accented English, that a “mayoria” of the employees had signed for the Union. Ewing apparently understood what Pimentel was saying because he told the employees to get out of his office and to go see Blancato.

Blancato admitted sending the employees away when they tried to hand him a letter, but denied that Schaffer or the employees said anything. According to Blancato, he assumed when he saw Schaffer with a piece of paper in his hands leading a group of employees that it was something from the Union. He told Schaffer that he was not interested in what he had and that they probably needed to bring the paper to the NLRB. Blancato admits that he immediately went up to Spencer’s office to tell him what had happened. When Blancato saw the same group of employees coming toward Spencer’s office, he turned toward them and said, “I have already told you I am not interested in whatever you have. You have to bring it to the NLRB.” Ewing also admitted being confronted by a group of employees with a piece of paper. He denied that Pimentel said anything about a majority of employees supporting the Union, testifying that Pimentel didn’t “get that far” before Ewing cut him off and told them to bring whatever they had to Blancato.

The Union filed its petition and showing of interest with the Board’s Regional Office the same day.

8. Movement of the EN-114 machine

There is no dispute that the Respondent, sometime in the fall, subcontracted assembly of a glove box hinge for the Ford Crown Victoria to a company called Summit Manufacturing. As part of the subcontracting, the Respondent shipped the machine used to assemble this hinge, the EN-114, to Summit. The first purchase order for hinges from Summit, which Blancato testified is the only writing documenting the existence of a contract, is dated November 7. Ralph Larson, the president of Summit who testified for the Respondent, recalled that the machine was moved to his shop the weekend before Veteran’s Day, which would be November 11–12. Schaffer recalled that the EN-114 was moved around the time that he and the other employees went to Blancato’s office with the letter from the Union. Pimentel and employee Michael Dixon testified that the machine sat on a forklift for several days before it was moved. Abraham could not recall “how many days” the machine sat on the forklift.

Pimentel testified that, one day while the machine was sitting in the aisle, Ewing made a comment to him and the two employees who had been working on the EN-114, Jose Gonzalez and Andre de la Cruz. Pimentel first testified, in his limited and heavily accented English, that Ewing said, “[Y]ou see that machine going, the EN-114? Later, the 8096 going later. You’re going too. That one is because we don’t want the Union over here.” When Pimentel testified about this conversation in Spanish, he was able to more eloquently express Ewing’s comment expressing the same idea. Neither Gonzalez nor de la Cruz testified at the hearing.

Employee Michael Dixon testified that he also saw the EN-114 machine in the aisle, ready to be shipped. Dixon asked Abraham what was going on. Dixon recalled that Abraham responded, “It’s going out. These things happen” or “that’s the kind of thing that can happen” and then referred to the Union. At the hearing, Dixon appeared uncertain when asked what, if anything, Abraham said about the Union. In his pretrial affidavit, Dixon also stated that Abraham said something about the Union in connection with the movement of the EN-114, but he could not remember what he said.

Odorczuk testified that he also heard Abraham comment about the removal of the EN-114 machine in the presence of employees. According to Odorczuk, Abraham said that the EN-114 wasn’t the only machine going out, that all the assembly machines would be going. Odorczuk testified that Abraham pointed to Andre de la Cruz, one of the employees who worked on the EN-114, and yelled out, “[T]his job is going out and you’re next.”

Ewing and Abraham specifically denied making any statements to Pimentel or any other employee linking the removal of the EN-114 to the union campaign. Abraham admitted saying, to no one in particular, when he saw the machine on a pallet in the aisle outside his office, “well, there goes the EN-114 machine. These things happen.”

The Respondent offered the testimony of Blancato and Larson regarding the negotiations that led to the subcontracting of this work. These negotiations apparently began in August with a general discussion of the possibility of subcontracting some work to Summit. It was not until October that an agreement was reached on the terms of the subcontract for the EN-114 assembly. Blancato testified that there were two reasons for his decision to subcontract this work, i.e., cost and quality. In contrast, Larson recalled being told that the Respondent wanted to subcontract because “they were having difficulty getting the product out to customers due to a shor