Accurate Wire Harness

National Labor Relations Board - Board Decisions

Sep 19, 2001

335 N.L.R.B. 1096 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1096
Accurate Tool & Manufacturing Inc., d/b/a Accurate
Wire Harness and Tammy Jackson. Cases 9–
CA–36910 and 9–CA–37007
September 19, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On June 30, 2000, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. In addition, the General Counsel filed
exceptions and a supporting brief, and the Respondent
filed 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 conclusions and
to adopt the recommended Order as modified.3
The judge found that the Respondent violated Section
8(a)(1) by threatening to discharge, and discharging, 12
employees for engaging in a protected concerted walkout
on July 9, 1999.4 The judge further found that the Re-
spondent violated Section 8(a)(1) by suspending and
discharging employee Tammy Jackson for allegedly
threatening a coworker with bodily harm if she did not
participate in the walkout. For the reasons stated by the
judge and the additional reasons set forth below, we
agree.

1 No exceptions were filed to the judge’s dismissal of the allegation
that employee Mearlean Nichols was discharged in violation of Sec.
8(a)(1). Furthermore, no exceptions were filed to the judge’s denial of
the Respondent’s motion to dismiss for prosecutorial misconduct.
The General Counsel’s exceptions relate to the calculation of interest
on backpay awarded to the discriminatees. The General Counsel asks
that the Board change its practice of awarding simple interest on back-
pay and, instead, calculate interest on a daily compounded basis. Hav-
ing duly considered the matter, we are not prepared at this time to devi-
ate from our current practice. Members Liebman and Walsh, however,
do not foreclose future consideration of the request. In Member Trues-
dale’s view it would be preferable for the Board to address the General
Counsel’s request for compound interest in a rulemaking proceeding.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order and issue a new
notice to conform to the violations found and the Board’s recent deci-
sion in Ferguson Electric Co., 335 NLRB 142 (2001).
4 All dates are in 1999 unless otherwise specified.
I. THE JULY 9 WALKOUT
A. Alleged Threats of Discharge
The judge found that the Respondent violated Section
8(a)(1) when its production supervisor, Shirley Powers,
told employees as they began to walk out that if they
walked out, the Respondent would accept it as a resigna-
tion. The judge also found that the Respondent violated
Section 8(a)(1) when its president, Nestor Fernandez,
told employees immediately after they walked out that if
they did not return within 2 minutes, the Respondent
would accept it as a resignation. The judge found that
these statements constituted unlawful threats to discharge
the employees if they engaged in a protected strike. We
agree. See, e.g., Conair Corp., 261 NLRB 1189 (1982)
(mailgram telling strikers that they would be “deemed to
have voluntarily quit” unless they returned to work in 2
days was a threat of discharge in violation of Sec.
8(a)(1)), enfd. in relevant part 721 F.2d 1355 (D.C. Cir.
1983), cert. denied sub nom. Garment Workers Local
222 v. NLRB, 467 U.S. 1241 (1984).
B. Alleged Discharge of Employees Engaged in Walkout
The judge further found that the Respondent violated
Section 8(a)(1) by discharging the 12 employees for en-
gaging in the walkout. We agree. The Respondent ar-
gues that the employees were not discharged, relying on
Pink Supply Corp., 249 NLRB 674 (1980). Pink Supply,
however, is distinguishable. In that case, a group of em-
ployees engaged in a concerted work stoppage. After
urging the employees’ spokesperson to convince the em-
ployees to return to work, the employer told the spokes-
person that it needed people to do the employees’ work,
and therefore it would have to act as though the employ-
ees were quitting and find replacements. When the
spokesperson denied that the employees were quitting,
the employer asked, “Well, what do you call it? What
am I supposed to do?” The spokesperson did not re-
spond to these questions, but volunteered that the em-
ployees would come in to clean out their desks, which
they did the next day. Under these circumstances, the
Board found that “[t]he conversation taken as a whole
did not, as we attempt to view it through the employees’
eyes, present anything like an unequivocal refusal by
Respondent to permit them to return to work.” 249
NLRB at 674. The Board therefore found that the em-
ployees had not been discharged.
Unlike the employer in Pink Supply, the Respondent in
this case expressed no uncertainty to the employees
about how it would treat those who walked out. Rather,
the Respondent twice told the employees unequivocally
that it would treat the walkout as a resignation. When
one employee protested that the group had merely
335 NLRB No. 91
ACCURATE WIRE HARNESS 1097
wanted the Respondent to talk to them, Fernandez said,
“You went about it the wrong way.”5 He then posted a
“Now Hiring” sign at the front entrance to the Respon-
dent’s building. Under these circumstances, we agree
with the judge that the Respondent’s statements and con-
duct would reasonably lead the employees to believe that
they had been discharged. See, e.g., Kolkka Tables &
Finnish-American Saunas, 335 NLRB 844, 846 (deter-
mination of whether there was a discharge is judged from
the employees’ perspective, and the employer “will be
held responsible when its statements or conduct create an
uncertain situation for the affected employees”); Chris-
topher Co., 288 NLRB 1272, 1275–1276 (1988) (the
respondent unlawfully discharged striking employees by
telling them that if they did not report for work the fol-
lowing Monday, the respondent would consider them to
have quit and would replace them); Ridgeway Trucking
Co., 243 NLRB 1048, 1048–1049 (1979) (the respondent
unlawfully discharged employees engaged in a work
stoppage by telling them to leave the premises unless
they were going to go to work; discharge “does not de-
pend on the use of formal words of firing,” but on
whether the employer’s actions “would reasonably lead
the employees to believe that they had been discharged”),
enfd. 622 F.2d 1222 (5th Cir. 1980). Therefore, we
agree that the Respondent violated Section 8(a)(1) by
discharging the employees for engaging in a protected
strike.
II. SUSPENSION AND DISCHARGE OF TAMMY
JACKSON
The Respondent suspended, and ultimately discharged,
employee Tammy Jackson for allegedly threatening her
coworker, Jamie Jewell, that Jewell would “get [her] ass
kicked” if she did not participate in the walkout. The
judge concluded, and we agree, that Jackson’s suspen-
sion and discharge violated Section 8(a)(1) under NLRB
v. Burnup & Sims, Inc., 379 U.S. 21 (1964), which gov-
erns discharges for alleged misconduct arising out of
protected concerted activity. Under Burnup & Sims,
even if an employer discharges an employee in the hon-
est belief that the employee engaged in misconduct, it
violates Section 8(a)(1) if the General Counsel proves
that the alleged misconduct did not in fact occur. See id.;
see also Pepsi-Cola Co., 330 NLRB 474, 475 (2000).
We find it unnecessary to pass on the judge’s finding that
the Respondent lacked an honest belief that Jackson

5 In sec. II,K,4 of her decision, the judge found that Fernandez told
the employees they were “going about it the wrong way.” The wit-
nesses’ actual testimony was that Fernandez said they “went about it
the wrong way.” We are satisfied that this minor error does not under-
mine the judge’s conclusion that the Respondent discharged the em-
ployees in violation of Sec. 8(a)(1).
threatened Jewell. Even assuming arguendo that the Re-
spondent had such a belief, we agree with the judge that
the General Counsel proved by a preponderance of the
evidence that Jackson did not threaten Jewell. Therefore,
we agree that the Respondent suspended, and discharged
Jackson in violation of Section 8(a)(1).6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4:
“4. Respondent has violated Section 8(a)(1) of the Act
by suspending employee Tammy Jackson on August 16,
1999, and discharging her on August 23, 1999.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Accurate
Tool & Manufacturing Inc., d/b/a Accurate Wire Har-
ness, Springboro, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Delete paragraph 1(c) and reletter the subsequent
paragraph.
2. Substitute the following for paragraph 2(e).
“(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary or useful in analyzing the amount of
backpay due under the terms of this Order.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights:

6 We find it unnecessary to pass on the judge’s additional conclu-
sions that the Respondent violated Sec. 8(a)(1) and (4) because its only
motives for suspending and discharging Jackson were her participation
in the walkout, her efforts to encourage others to participate, and her
filing of charges with the Board alleging unlawful termination of the
employees who walked out. The remedy for these violations would be
the same in all material respects as the remedy for the violation of Sec.
8(a)(1) under Burnup & Sims.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1098
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid and protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT threaten you with discharge if you go
out on a strike protected by the Act.
WE WILL NOT suspend or discharge you because
you have engaged in a strike protected by the Act, or
because you have instigated or in a lawful manner at-
tempted to induce other employees to engage in such a
strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your rights
under the Act.
If we have not already done so, WE WILL, within 14
days of the date of the Board’s order, offer Tammy Jack-
son full reinstatement to her former position or, if such a
position no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges previously enjoyed.
WE WILL make Tammy Jackson whole, with interest,
for any loss of earnings and other benefits suffered as a
result of her July 1999 discharge, her August 1999 sus-
pension, and her August 1999 discharge.
WE WILL make the following employees, who have
been offered reinstatement, whole, with interest, for any
loss of earnings and other benefits suffered as a result of
their discharge on July 9, 1999:

Mary Kathryn (Kathy) Brown
Stephanie Brown
Letcher Carl
Toni Ehrnschwender
Phyllis Gallienne
Penny Harvie
Paul Morris
Patty Ross
Doug Slacker

Employees Brian Moore and Jonathan Wyatt have
waived reinstatement and have received “settlement
pay.”
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files all references to
the unlawful suspension of Tammy Jackson and the
unlawful discharges of all the employees (including
Jackson, Moore, and Wyatt, and also Kathy Brown
unless we have already done so) named in this notice;
and WE WILL, within 3 days thereafter, notify them in
writing that this has been done and that the action and
matters reflected in these documents will not be held
against them in any way.
ACCURATE TOOL & MANUFACTURING
INC. D/B/A ACCURATE WIRE HARNESS

Theresa L. Donnelly, Esq., for the General Counsel.
Gary L. Greenberg, Esq., of Cincinnati, Ohio, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me in Cincinnati, Ohio,
on January 11, February 29, and March 1 and 2, 2000, pursuant
to a charge in Case 9–CA–36910 filed by Tammy Jackson, an
individual, against Respondent Accurate Tool and Manufactur-
ing Inc. d/b/a Accurate Wire Harness, on July 15, 1999, and
amended on August 20, 1999; a charge in Case 9–CA–37007,
filed by Jackson on August 19, 1999, and amended on August
26, 1999; a complaint in Case 9–CA–36910, issued on August
30, 1999; and a consolidated complaint in both cases issued on
October 29, 1999, and amended on December 10, 1999, and
February 29, 2000. The complaint in its final form alleges that
Respondent violated Section 8(a)(1) of the National Labor Re-
lations Act (the Act) on July 9, 1999, by telling employees who
had left Respondent’s plant in order to engage in a protected
concerted walkout that if they did not return immediately,
“consider it your resignation.” The complaint in its final form
further alleges that Respondent violated Section 8(a)(1) by
terminating 13 named employees (including Jackson and Kathy
Brown)1 about July 9, 1999, and by failing to reinstate them
until August 16, 1999, because of their participation in the
walkout. In addition, the complaint in its final form alleges that
Respondent violated Section 8(a)(1) and (4) of the Act by sus-
pending Jackson and Kathy Brown about August 16, 1999, and
discharging them about August 23, 1999, because of their par-
ticipation in the walkout and/or because they filed and/or par-
ticipated in the processing of the charges. On the last day of
the hearing, March 2, 2000, Kathy Brown and Respondent
entered into a settlement agreement with respect to the allega-
tions that she was unlawfully suspended about August 16,
1999, and unlawfully discharged about August 23, 1999. This
settlement agreement includes a nonadmission clause and pro-
vides, inter alia, for waiver of reinstatement and for a liquidated
amount of money to be paid to her in three installments, the last
of which was due on May 28, 2000; my approval of the with-
drawal of these portions of the charge as to Kathy Brown was
contingent upon timely completion of these payments. The
settlement does not encompass her claim to backpay for the
period from July 9 through August 15, 1999. The settlement
agreement was marked as Joint Exhibit 1, and is hereby re-
ceived into evidence. Together with documents purporting to
show that Respondent has complied with the terms of the set-
tlement, Respondent filed a motion, dated June 1, 2000, to ap-

1 So referred to herein and in the record. Her legal name is Mary
Kathryn Brown.
ACCURATE WIRE HARNESS 1099
prove the withdrawal described in the settlement. This motion
was unopposed, and was granted by me on June 15, 2000.
On the basis of the entire record, including the demeanor of
the witnesses, and after due consideration of the briefs filed by
counsel for the General Counsel (the General Counsel) and
Respondent, I hereby make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation which manufactures wire har-
nesses at its Springboro, Ohio facility. During the year preced-
ing the issuance of the original complaint and each of the
amended complaints, Respondent sold and shipped goods val-
ued in excess of $50,000 from its Springboro facility directly to
points outside Ohio. I find that, as Respondent admits, it is
engaged in commerce within the meaning of the Act, and that
assertion of jurisdiction over its operations will effectuate the
policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
All of Respondent’s stock is owned by Mr. and Mrs. Nestor
Fernandez Sr. Prior to about February 1997, Respondent’s
president was Nelson Fernandez, who is the brother of Nestor
Fernandez Sr. Thereafter, the president was Nestor Fernandez
Jr., the son of Mr. and Mrs. Nestor Fernandez Sr. Unless oth-
erwise indicated, all references to “Fernandez” refer to Nestor
Fernandez Jr.
Respondent’s employees are not union represented. During
a period which extended beyond October 1994 Respondent had
a human resources department and was advising the employees
that there was an open door policy. However, as of July 1999,
this department no longer existed, and Production Supervisor
Shirley Powers, admittedly a statutory supervisor, told the em-
ployees that they had to follow the “chain of command.” Until
about the end of 1998 Respondent conducted monthly meetings
at which management was available on the floor for questions.
Then, Respondent announced that such meetings would be held
on a quarterly basis. After that management conducted em-
ployee meetings irregularly, at unpredictable intervals exceed-
ing 3 months, and failed to reply to employee inquiries about
the date of the next meeting. As of July 9, 1999,2 no such
meeting had been held for more than 3 months. Employees
were not permitted to come to Respondent’s office, and their
only access to members of management was on the plant floor.
B. Employees’ Dissatisfaction with and Complaints to Man-
agement About Certain of Respondent’s Personnel Policies
At all relevant times Respondent maintained a 30-page pol-
icy manual, copies of which were given to the employees and
kept in the office. Included in this manual are three pages of
rules under the heading “Attendance-Punctuality” and “Per-
sonal Absence Days.” The “Attendance-Punctuality” rules
assign a particular number of “points” for each “tardy” and
each “absence,” and call for employee discipline based on the
number of “points” accumulated during the current calendar

2 All dates hereafter are 1999 unless otherwise stated.
year. No points are assessed for “excused absences.” In the
form given to the employees the manual states that “excused
absences” include “Illness with Doctor’s Slip” and “Five (5)
Unpaid Personal Absence Days” ( PA days). At the beginning
of 1999 Respondent effected certain changes in the rules as set
forth in the complete printed manual, and the record suggests
that during much and perhaps all of 1999, other changes were
being considered and, perhaps, put into effect. The changes put
into effect in January 1999 included a 3-day increase in PA
days (i.e., from 5 to 8), but elimination of the provision that
“Illness with Doctor’s Slip” was an “excused absence” for
which no attendance points would be assessed. In addition, the
number of “points” calling for a written warning, a suspension,
and possible termination was reduced. These and other
changes were orally explained to employees in the fall of 1998.
Also, on an undisclosed date or dates (perhaps, during the 1998
explanation), Respondent passed out to employees a 7-page
document which contained amended versions of Respondent’s
manual with respect to PA days, holiday pay, and “Attendance-
Punctuality.” This document was posted about January 1999.
However, it contains no markings, or other indications on its
face, as to what changes were thereby being effected in the
rules as set forth in the printed manual, and Respondent re-
trieved from the employees all copies of the amended rules. On
several occasions prior to about April 1999 employees com-
plained to then Production Manager Paul Kirves, that they
wanted to receive an up-to-date manual. He replied that “it was
in revision.” So far as the record shows no complete up-to-date
printed manual was ever prepared. Also, on undisclosed dates
before July 9, 1999, employee Tammy Jackson and other em-
ployees complained to Kirves (who by this time may have been
transferred to a job in “purchasing”), Powers, and quality con-
trol engineer Teresa McFarland, about the change in the point
system and in the effect of absences with a doctor’s excuse.3
Beginning no later than July 1997, employees who worked
less than 15 minutes of overtime were never paid at overtime
rates for such periods, and usually, were not paid for such peri-
ods at all. Shortly after this practice began the employees be-
gan to complain about this to Powers, Kirves, McFarland, and
Comptroller Richard P. Rosen, to which Rosen replied that the
timeclock went “strictly by 15 minute increments.”4 After
being discharged in August 1999 Jackson caused the United
States Department of Labor to initiate an investigation of this
practice.
3 McFarland testified on behalf of both the General Counsel and Re-
spondent. The complaint in its final form alleged that “At all material
times” McFarland had been a supervisor of Respondent within the
meaning of Sec. 2(11) of the Act. Respondent’s answer denied that she
had been a supervisor “at all material times, otherwise admitted.” At
the hearing Respondent’s counsel moved to strike her testimony for the
General Counsel, on the ground that Respondent’s counsel had not
been notified before she was interviewed by Board personnel. This
matter is not addressed in Respondent’s posthearing brief. The motion
is hereby denied, on the ground that she had left Respondent’s employ
before being contacted by the General Counsel. Grand River Village,
326 NLRB 1215 fn. 2 (1998).
4 However, employees were docked 15 minutes’ pay if they left 10
minutes early.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1100
Respondent’s production employees are divided between the
“automotive department” and the “steel-case department,”
which departments, during the period relevant here, consisted
of about 18 employees and about 7 employees, respectively.
Before early June 1999 all newly hired employees were paid at
the same rate regardless of which department they were as-
signed to, and general annual wage increases were simultane-
ously given to employees in both departments. At a meeting of
all employees about early June 1999, Fernandez announced that
every employee in the steel-case department was going to re-
ceive a wage increase of $1 an hour (which meant, among other
things that the hiring rate in that department would exceed the
rates paid to some experienced employees in the automotive
department), and that as to the “other lines . . . they would get
to [them] and evaluate them.” At least as of July 9, 1999, no
such evaluation had been made; and shortly after the steel-case
employees had received their $1 increase, an automotive em-
ployee identified in the record as “Doug” (perhaps Doug
Slacker, among the employees alleged as having been unlaw-
fully discharged on July 9) received a 25-cent hourly increase
as his annual increase. After the June 1999 steel-case raise was
announced, employee Kathy Brown who had been working for
Respondent since September 1996 and had received an “Out-
standing” performance appraisal in November 1998, com-
plained to Quality Control Engineer McFarland that because of
the June 1999 raise, newly hired steel-case employees would be
paid more than Kathy Brown was. Employee Stephanie Brown
(among the employees alleged as having been unlawfully dis-
charged on July 9), made a similar complaint to Production
Supervisor Powers. Also, on several occasions between the
announcement of the steel-case raise and July 9, Jackson and
other employees complained to Supervisor Powers that the
exclusion of the automotive employees from the pay raise was
not fair, and that previously, the hiring rate for both groups had
been the same. Powers replied, “I know what you guys are
saying . . . they are working on it, . . . they said they would be
evaluating the lines . . . to make evaluations and give you guys
. . . raises according to your production.” In addition, Jackson
and other employees complained to Kirves and McFarland that
the employees were upset about the steel-case wage increase,
that they felt it should have been universal, and that they felt
that management was “stalling” when it told them they would
get a wage increase after the automotive department had been
reevaluated.
C. The Walkout on July 9, 1999; Allegedly Unlawful Threats
by Management; Alleged Unlawful July 9 Discharges
In early July 1999, all of Respondent’s employees engaged
in discussions about what to do to get management’s attention
so that management would talk to the employees about the pay
raise, the manual, the change in the absenteeism policy, and
other matters. They decided that if management would not
agree to meeting and talking with the employees, they would
walkout in protest. Employee Jackson telephoned an “investi-
gation officer” employed at the NLRB’s Regional Office in
Cincinnati, Ohio, and asked whether the employees would be
“protected” in such a walkout, if the employees could possibly
lose their jobs. The “investigation officer” replied that the em-
ployees could not be terminated (see infra, fn. 29).
Inferentially a few days later, employee Phyllis Gallienne
(among the employees alleged to have been unlawfully dis-
charged on July 9), told employee Kathy Brown that the em-
ployees needed to write a letter to Fernandez to let him know
what was going on. Kathy Brown prepared a draft letter to
Fernandez and gave the draft to Jackson. Early in the morning
of July 9, Jackson hand wrote a revised draft letter so that it
read as follows:

To the Management:
We’re requesting an emergency meeting at 3:15 to dis-
cuss some troublesome and urgent concerns. Your com-
pliance will be appreciated.

Thank you,

All AWH [Accurate Wire Harness] Employees

RSVP
By 3:00 or walkout

Between the beginning of the second morning break and of
the first afternoon break that day, a number of employees
signed a sheet of paper which was a signatory page to this let-
ter. Kathy Brown, who obtained all but about 5 of the ap-
proximately 18 signatures, told the employees to sign the letter
if they were “behind” giving it to Fernandez; and that because
she did not want the first person to sign it to get into trouble,
the employees should sign the letter in “random order.” After
the lunchbreak she told all of them that because she did not
want management to think the employees were quitting, they
should make sure not to clock out when they went outside.
With the possible exceptions of Penny Harvie and Doug
Slacker this letter was signed by or on behalf of all of the em-
ployees whose discharge is attacked in the complaint.5 Because
employee Mearlean Nichols (also named in the complaint) was
absent from the plant that day, employee Jackson, who is Nich-
ols’ daughter, signed Nichols’ name (her given name only)
after receiving authority by telephone to do so. Kathy Brown
did not ask three probationary employees (including Jamie
Jewell) to sign the letter because their probationary period had
not ended.
Although Respondent permitted employees to take either of
two afternoon breaks, the steel-case employees usually went on
the first break, and the automotive employees on the second
break. That afternoon, by word of mouth, Jackson and Kathy
Brown induced a number of employees in both departments to
take the first break, in order to discuss what action to take in
connection with the letter as redrafted by Jackson. During this
break, the employees gathered a few feet outside the employee
entrance, with Jackson and Kathy Brown standing on the side-

5 Slacker did not testify. Harvie testified for the General Counsel,
but was not asked about this matter. Most of the employees signed
either their given names only, or their given names plus the first initial
of their last names. Because much of the handwriting is rather poor,
and the document in the exhibit folder is a rather poor photocopy, the
identity of some of the signatories cannot be determined from the ex-
hibit.
ACCURATE WIRE HARNESS 1101
walk and the other employees sitting at picnic tables and on the
grass. Jackson read the letter aloud to the employees present—
who included all the signatories except Wanda Holmes (a part-
time employee who had left for the day) and Nichols, and also
included employees who had not signed it. Jackson asked them
what they thought of it, and whether there were any questions.
Brian Moore or Jonathan Wyatt, both of whom were steel-case
employees, asked why the steel-case employees should be in-
terested in participating since they had received the one-dollar
increase. Kathy Brown said that there were also other issues,
including the manual and the medical leave. She went on to
say, “[W]e’ve been [here] for years and nothing had changed.
It had steadily gotten worse. [The steel-case employees] could
participate in support of the rest of us.” An employee or em-
ployees said that the purpose of the proposed walkout was “ba-
sically to get management to meet with us so we could . . . dis-
cuss the problems with them.” Employee Moore said that he
and some other employees were probationary employees, and
asked how backing up the employees’ action would help or
hurt. Kathy Brown replied that as long as he was there, he
could back up the rest of the employees. He then signed the
letter, at Gallienne’s solicitation. Jackson said that there was
not 100 percent support for the walkout, sounded anxious to
make sure that the rest of the employees at the meeting were
going to support it, and asked for a show of hands by all those
who favored giving the letter to Powers after the break was
over. All those present, including the steel-case employees,
raised their hands. Employee Wyatt volunteered to give Pow-
ers the letter and the paper containing the signatures. When the
break ended at 2:10 p.m., Wyatt (followed by “a group of peo-
ple coming in behind him”) gave these documents to Powers.
Then, he and the other employees went back to work.
Shortly after lunch Fernandez received what was apparently
an anonymous telephone call from one of the employees, stat-
ing that some of the employees were going to walkout. Fer-
nandez called Powers, McFarland, Rosen, and (perhaps) Kirves
into the office and asked if they knew about the prospective
walkout. When they said no, Fernandez told them to keep their
eyes and ears open. He further stated that he was going to con-
tact his father and a lawyer to see what to do about the prospec-
tive walkout. Inferentially after the others had left Fernandez’
office, he telephoned Respondent’s corporate attorney, Michael
Barron, but was advised that he was out of the office on his
honeymoon. When one of Barron’s partners, Attorney David
Wade Peck, got on the line, according to Fernandez’ testimony
he “explained the situation that there could be a possible walk-
out,” and asked what he should do. Peck told him to call Peck
back when Fernandez had more information. While Fernandez
was still on the phone, Powers came into his office and gave
him the employees’ letter and the signature page. He told her
to go on out and “kind of keep an eye on things and see if they
were really going to walkout or not.” After hanging up the
phone, Fernandez summoned Powers, Rosen, and McFarland to
Fernandez’ office. During this conference Powers remarked
that the letter appeared to be in Jackson’s handwriting.6 When

6 This finding is based on McFarland’s testimony, which is not di-
rectly contradicted. In view of such testimony, and for demeanor rea-
Fernandez asked why the employees were upset and why they
wanted a meeting, Powers replied that she thought some of the
employees were upset because of the pay increase for the steel-
case line.
After Powers had given Fernandez the employees’ letter, he
telephoned Peck, and said, “Hey, this is a walkout. What do I
do? . . . What are my options? I got to come up with a decision
now.” Peck said to let the employees know that they had re-
signed. Then, Fernandez told Powers to go out and keep an eye
on things, and to tell the employees that if they walked out,
Respondent was going to accept that as their resignation. Pow-
ers left the office and went out to the workfloor.
Management never did reply to the employees’ letter. At
about 3 p.m., Fernandez walked out of his office, smiled and
winked at the employees, and 2 minutes later, went back into
his office. At about 3:15 p.m., a half hour before the end of the
shift, Jackson and Kathy Brown took their purses, Kathy Brown
took her personal calendar, and both of them walked toward the
exit.7 As they went down the aisle, Jackson emitted a whistle,
where most of the employees started slowly getting up and
heading toward the employee exit door. In accordance with
Fernandez’ instructions, Powers said that if they walked out,
Respondent was going to accept that as their resignation; a
majority of the employees were in a position to hear her. On
hearing Powers say this, employees Bob Patel, Mena Patel, and
Alpesh Patel, all of whom had signed the employees’ letter to
management, slowed down. While the Patels were still inside
the building, Fernandez said to Mena Patel, within earshot of at
least one of the other exiting employees (Kathy Brown) and
inferentially within earshot of at least the other two Patels, “Do
you know what this means? You have no job.” After Fernan-
dez had made these remarks, the Patels stayed inside, and did
not participate in the walkout.
After addressing Mena Patel, Fernandez went outside and
told all the employees who were walking out that if they did not
return within 2 minutes, he was going to accept it as the em-
ployees’ resignation. Employees Jackson and Gallienne told
Fernandez, “You can’t do that,” and the employees continued
to walkout. Employee Kathy Brown said that all the employees
wanted him to do was to talk to them. Pointing his finger at
her, Fernandez replied that the employees had “gone about it
the wrong way.” Then, he went inside the factory and walked
back out carrying a sign saying, “Now hiring, full and part
time, inquire within.” He walked past the front entrance, put up
the sign at the sidewalk near the front entrance and in front of
the office area, walked past the front entrance to the employee
entrance, reentered the factory, and shut the door behind him.

sons, I do not credit Fernandez’ testimony that he never found out who
drafted the note.
7 At that time, Brown was having a dispute with management about
whether attendance “points” should be charged for absences due to
complications from pregnancy. The calendar contained a record of the
days she missed for this reason. She left in the plant a picture of her
dog.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1102
Kathy Brown credibly testified that at that time, she thought she
had no job.8
Respondent’s manual requires an employee who resigns to
complete and sign a resignation form; so far as the record
shows, neither Nichols nor the employees who walked out on
July 9 ever completed a form or were asked to do so. The
manual further states, “Any employee terminated will be ad-
vised of such by the immediate supervisor and/or the Depart-
ment Head in conjunction with Human Resources.” Laying to
one side Fernandez’ and Powers’ July 9 statements to the em-
ployees just before and shortly after the walkout, no such ad-
vice was ever given, so far as the record shows.
The employees who walked out and stayed out that day were
Kathy Brown, Stephanie Brown (no kin to Kathy Brown, so far
as the record shows), Letcher Carl, Toni Ehrnschwender,
Phyllis Gallienne, Penny Harvie, Tammy Jackson, Brian
Moore, Paul Morris, Patty Ross, Doug Slacker, and Jonathan
Wyatt. Laying to one side the remarks made by Jackson, Galli-
enne, and Kathy Brown, none of the employees who were
walking out said anything to the effect that they were not quit-
ting but were on strike, or that they meant to keep their jobs.
The complaint alleges that Respondent unlawfully terminated
these 12 employees plus Mearlean Nichols. In order to show
that they had not in fact resigned, the employees who walked
out that day did not clock out.
D. Events After the Walkout Began
After Fernandez had put up the “Now hiring” sign outside
the factory, the participants in the walkout stood outside for a
while (“kind of in shock,” according to Jackson’s and Kathy
Brown’s honest testimony). Eventually Jackson suggested that
the employees go to a nearby restaurant and discuss what they
were going to do. After they had gathered at the restaurant,
some of the employees said that they “couldn’t believe that
[Fernandez] had fired” them. The employees also discussed
contacting the NLRB. At another employee’s suggestion Jack-
son telephoned counsel. Then, the employees decided to setup
a picket line on the following Monday, July 12 (the walkout
began about 30 minutes before quitting time on a Friday).
Over the weekend some of the employees prepared picket
signs and all of them agreed to meet in front of Respondent’s
facility on Monday morning. That morning Jackson alerted
some local newspapers to the planned picketing. Inferentially
because of Jackson’s calls, “the media” telephoned Fernandez
that morning asking for his “take” on the matter. Fernandez
replied that he would have to get back to his attorneys to get the
“proper information.” In response to Fernandez’ inquiry that
morning about what to say to “the media,” at 9:13 that same
morning Corporate Attorney Barron faxed to Respondent’s
comptroller, Rosen, a letter which read in part:

In response to your question regarding contact by the
news media, I suggest that if you are again contacted re-
garding the current dispute, you make the following state-
ment.

8 My findings in this paragraph are based on a composite of credible
parts of the testimony of Kathy Brown, Stephanie Brown, Jackson, and
Fernandez.
Accurate Wire Harness is disappointed that several of
its former employees chose to resign from this company;
however, Accurate is taking all necessary steps to ensure
continued operation and to meet our customers’ needs.
We feel that it would be inappropriate to specifically
comment on any other matters relating to the choice made
by these employees and have no further comment.

Portions of the statement thus, suggested by counsel were
quoted in the July 13 editions of two local newspapers.
At about 9:30 a.m. on Monday, July 12, some of the employ-
ees who had walked out on Friday, July 9, and also employee
Nichols drove to Respondent’s facility, parked across the street,
and began to picket on the street in front of Respondent’s facil-
ity with signs saying, “Boycotting AWH,” “Unfair Labor Prac-
tices,” “Unfair Pay Practices,” and “Refusal to Discuss Com-
pany Issues.” The participants in the picketing that morning
included Kathy Brown, Stephanie Brown, Ehrnschwender,
Harvie, Jackson, Moore, Nichols, and Wyatt. Five minutes
after the picketing began, Fernandez came out of the office and
told the pickets that they were not allowed to do that. Jackson
said that she knew they were within their rights, because on the
night before, in order to make sure that the pickets would not be
“carted away,” she had spoken to a local police officer, who
had said that the pickets “were protected as far as that went.”
Fernandez then threw his hands up in the air, shook his head,
and went back inside the office. About 15 minutes later, two
police officers came to the facility and went inside to speak
with Fernandez. On coming back outside the officers told the
picketers that the officers had told Fernandez the pickets were
within their right to be there as long as they were peaceful, did
not litter, and did not prevent anyone from entering or leaving
the facility.9 While the employees were picketing, Respondent
placed a videotape camera in its office window and videotaped
them except during a period when the pickets drew the atten-
tion of a newspaper reporter who was observing the scene.
Later that day reporters from two local newspapers came to the
picket line. At other picketers’ request, Jackson spoke to the
reporters; Kathy Brown, Nichols, and Wyatt also talked with
them. The picketing continued that day until about 4 p.m., and
until the picketers were sure that they had been seen by Re-
spondent’s active employees as they left for the day.
Using the same picket signs the pickets resumed their picket-
ing on the following day, July 13. While pacing in the lobby
and looking at the pickets Fernandez remarked, in the presence
of his wife and McFarland, “I can’t believe they’re doing this.
This all started cause Kathy Brown was upset cause she got
written up and Tammy [Jackson] and [Mearlean Nichols] had
the legal advice to keep it going.”10
9 My findings in this sentence are based on Jackson’s uncontradicted
testimony, received without objection or limitation. Fernandez was not
asked about his conversation with the police officers.
10 My findings as to this remark by Fernandez are based on McFar-
land’s uncontradicted testimony. In view of this remark by Fernandez,
I do not credit his or Powers’ testimony that management did not know
the identity of the “ringleaders” of the walkout. (See also infra sec.
II,H,7.)
ACCURATE WIRE HARNESS 1103
That morning, Fernandez drew Powers’ and McFarland’s at-
tention to a newspaper article which named Jackson and Nich-
ols as among seven pickets. The article attributed to the pickets
the assertion that they were engaging in a “boycott” in protest
of what they believed to be unfair labor scale, unpaid overtime,
and the inability to get paid sick days; attributed to Jackson the
statement that Respondent’s steel-case department employees
had received a $1 raise while workers in other departments did
not; and also attributed to her the assertion that “an employee
timeclock registers 15-minute increments, leaving workers
unpaid if they work less than 15 minutes overtime.” Fernandez
said that “he couldn’t believe that they were going through all
of this,” and that the statement about not paying overtime was
untrue. (However, neither he nor anyone else so testified, and
Jackson’s record testimony about unpaid overtime is undenied.)
Later that day Fernandez drew Powers’ and McFarland’s atten-
tion to another newspaper article which attributed to Jackson,
the statement that the participants in the walkout had not been
fired and had not resigned. The article also attributed to Jack-
son the statement that the “boycotting workers” were talking to
the NLRB “to review their options,” and were “considering
organizing a union.”11 Fernandez said that he did not want the
shop to become union, and that before he would let a union take
over, he would close down the place.12 Later that day or on the
following day, Fernandez expressed distress to McFarland
about the participation of employee Carl, who is McFarland’s
nephew, in the walkout.
The employees permanently abandoned their picketing early
in the afternoon of July 13. On Wednesday, July 14, the day
before payday (see p. 6 of R. Exh. 6), Jackson telephoned
Rosen about picking up the employees’ paychecks. Fernandez
told her that he was joining the conversation and had put her on
speaker phone. She was told that it would be “fine” for the
employees to pick up their checks, that this would save Re-
spondent postage, but that the employees should pick them up
within a certain time frame “that morning” (inferentially, the
morning of payday). Jackson asked about the locker keys.
Rosen asked her to tell the other employees to return their
locker keys when they came to pick up their checks. Later that
same day, July 14, Jackson signed the original charge which
alleged that on or about July 9 Respondent, in violation of Sec-
tion 8(a)(1) of the Act, “severed the [employment] of 14 of its
employees because they exercised their right under the National
Labor Relations Act to engage in a strike.” This charge was
filed on July 15 and a copy was served on Respondent by regu-
lar mail on July 16.
Fernandez testified that during the first week following the
July 9 walkout, production work was being performed by him
and his wife, as well as Production Supervisor Powers. On July
16 when Kathy Brown went into Respondent’s front office to

11 On timely objection, the newspaper articles were not received into
evidence to show the truth of the contents. There is no probative evi-
dence that Jackson made any of the remarks which the newspaper arti-
cles attributed to her, or that the employees were in fact considering a
union.
12 The complaint alleges that Powers and McFarland were statutory
supervisors and does not allege that this statement by Fernandez vio-
lated the Act.
pick up her check, she asked Rosen whether she could have a
job application. He gave her one but told her not to bring it
back, but just to mail it to him. Her most recent performance
appraisal in November 1998 had rated her as “outstanding.” So
far as the record shows, she never did fill out and mail the ap-
plication form which Rosen had given her. On July 31 she
rejected a July 30 settlement offer from Respondent which
included a provision waiving reinstatement. Her rejection letter
stated, inter alia, “The only thing I will agree to at this point is
my job back with three [weeks’] backpay with the dollar an
hour raise, that you have made universal since I was last
there.”13
About July 12, 1999, Jackson telephoned Bonnie Etherington
who had worked with Jackson for Respondent until August
1998, and asked if Etherington had heard anything about the
walkout at Respondent’s facility. Etherington, who is the sister
of Production Supervisor Powers, denied knowing anything
about it. During a discussion of the walkout, Etherington asked
Jackson whether everyone had walked out. Seeming to be up-
set, Jackson said that although it was supposed to have been a
100 percent walkout, some of the people stayed behind. On a
date not shown by the record, Etherington told Powers about
this conversation. After Etherington had returned to Respon-
dent’s employ on February 7, 2000, the subject of Jackson’s
telephoned remarks came up during a conversation (inferen-
tially, between Etherington and Powers) which was joined by
Fernandez. On February 11, 2000, Etherington gave Respon-
dent’s counsel a written statement about her July 1999 conver-
sation with Jackson.14
E. Settlement Efforts Between July 20 and August 13
Several days after the walkout began, inferentially on or be-
fore July 20, Fernandez said to McFarland and Powers that he
had received some misleading information from the lawyer that
Fernandez had found out that the employees were not consid-
ered resigned but were considered on strike, that he might have
to hire them back, and that if he had anything to do with it, they
would not be back.
On an undisclosed date between July 12 and July 20, Re-
spondent retained as counsel Gary L. Greenberg, who repre-
sented Respondent at the hearing in the instant case. By letter
to the NLRB Regional Office dated July 20 Greenberg pro-
posed (with Fernandez’ authorization) a settlement of the
charge which proposed settlement called for, inter alia, 1
week’s pay for “each of the 13 employees [sic] who walked off
the job on July 9, 1999,” and waiver of reinstatement by each.
The Regional Office and/or the employees did not agree to this
proposal which expired by its terms on July 28. Fernandez
testified that he authorized this proposed settlement because

13 According to Respondent’s evidence, not until August 1999 did
Respondent learn of the alleged incident which (according to Respon-
dent) caused it to suspend and discharge Brown in mid-August. (See
the statement of the case, supra.)
14 My findings in this paragraph are based on Etherington’s uncon-
tradicted testimony. Although at a certain point her testimony arguably
gives February 7, 1999, as the date of her return to Respondent’s em-
ploy, her testimony as a whole shows that the date was in fact February
7, 2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1104
I didn’t want any of the employees to come back . . . I felt let
down. It’s a small shop, I mean, there’s only 30 people there.
If there was a major problem . . . they could have sat down
with me, explained it. The method . . . was wrong. I mean,
you give people a chance . . . to think about something . . . you
just don’t plop it on them at the last minute and decide an an-
swer.

Fernandez further testified that as of the time this settlement
was proposed, his desire not to return these employees to work
was not different for any particular employee, but was the same
for “all 13.”
On an undisclosed date between July 14 and 20, Jackson
faxed to Gary Lindsay, who worked in the Board’s Cincinnati
office, a letter which was addressed to Respondent and accu-
rately stated that it had been authorized by all of the 13 em-
ployees (including Nichols) who are named in the complaint as
having been unlawfully discharged. The letter stated that “If a
few requests have been met by July 26, 1999 we would be will-
ing to return to work. . . . We know and understand that all the
requests are difficult to meet on [sic] such a short amount of
time, but if items 1 [through] 5 are met we are willing to work
on the remaining items.” Items 1 through 5 specified a $1-
wage increase effective July 9, for the employees who had not
received such an increase; back wages for “time that employ-
ment was severed on July 9;” that “Anyone whom [sic] upon
termination on July 9, 1999 that had vacation days, any and all
bonuses, and seniority from the original start date to be rein-
stated;” that the employees who returned “have the same posi-
tion as before termination on July 9, 1999. And that any and all
pay increases and future evaluations not be based on this diffi-
cult time;” and a system where “a board of employees and
management can review any and all complaints, together to
insure a productive and successful company.” Also requested
were employee handbooks with “all the rules for all employ-
ees;” absences due to doctor’s appointments to be excused
without “points” or loss of a vacation day; job posting; a “safe
and healthy work environment. . . . The heat gets so unbear-
able”; and wage raises sufficient for “a decent living to support
our families.” With the employees’ consent, Lindsay faxed this
letter to Greenberg’s law firm on or before July 20. The record
fails to show Respondent’s reply, if any.
Between the beginning of the walkout and at least until Au-
gust 1999, in McFarland’s presence Fernandez occasionally
remarked that the employees had left Respondent in a “terrible
mess,” and that he did not understand why they had engaged in
such conduct because he had thought more of at least some of
them and had never thought they would be a part of it.
F. Respondent’s at Least Purported Investigation of Jackson’s
Conduct in Connection with the Walkout
Probationary employee Jewell did not sign the employees’
July 9 letter to management, and was not asked to sign it by
Kathy Brown (who obtained most of the signatures) nor by
anyone else, so far as the record shows. Jewell was not present
at the employee meeting, during the first afternoon break on
July 9, when the employees finalized their arrangements for the
walkout. Although among several employees whom Jackson
solicited to join the walkout, Jewell did not participate. Rather,
on July 9, she assisted other nonparticipants in cleaning up for
the day. That afternoon, Fernandez approached her and
thanked her for staying and not walking out. He went on to say
that it was better to be a leader and not a follower, and that she
would benefit in the long run. At the end of the day,
McFarland, Powers, Mena Patel, Paul Carter, Jewell, and sev-
eral other employees who did not participate in the walkout
gathered in the breakroom. Powers asked Jewell (who was
visibly upset, shaken, and nervous) if she knew what was going
on, if she knew who had written the letter which notified Re-
spondent of the impending walkout. Jewell said that she
thought Jackson had written the letter, and that Kathy Brown
had walked around asking people if they would be part of the
walkout. Jewell said that she was nervous because some em-
ployees wanted to walkout and she did not, that the whole mat-
ter had got her torn up, that she did not want to get her “ass
kicked” but just wanted to go to work to pay her bills, and that
she did not “want any trouble out of this.” Jewell said that she
had gone to lunch at the home of McFarland’s mother, and that
“they” had told her not to say a word to McFarland’s mother,
because “they” did not want McFarland to find out that they
were walking out. Inferentially after Jewell had made these
remarks, the group was joined by Fernandez and Rosen. Fer-
nandez thanked the employees present for their “loyalty” to
Respondent, and told them that he would “make it up to them
somehow.”
Powers testified for Respondent that while “several of us”
were sitting in the breakroom on “the evening of the walkout,
that’s after everybody had left,” Jewell came in and said that
Jackson had said if Jewell “didn’t sign that paper, If they didn’t
have 100 percent, that they was going to kick [Jewell’s] ass.”
According to Powers’ testimony, during this conversation Jack-
son’s name was first mentioned by Jewell and not Powers. Pow-
ers further testified that that evening, she reported to Fernandez
statements which (she alleged) Jewell had made about Jackson.
Fernandez testified that “soon after the walkout,” he received
“some information” from “I think” Powers, about “an allegation
concerning Tammy Jackson.” Neither Powers nor Fernandez
testified as to exactly what Powers allegedly told him on this
occasion. Jewell denied saying in the breakroom that Jackson
had threatened to kick Jewell’s ass. For demeanor reasons and
other reasons discussed (infra sec. II,H,7), I credit Jewell. Later
that same day, Jewell told employee Marie McGlothin that Jewell
had been threatened because she had not joined the walkout, but
Jewell did not name who had threatened her.
On Monday, July 12, McFarland told Fernandez that her
mother had told her as follows: On July 9, Jewell had lunched
at the home of McFarland’s mother. Jewell had been very up-
set, and did not know whether to participate in the walkout.
McFarland’s mother told Jewell that she was still a probation-
ary employee who possibly could be fired if she participated in
the walkout, and advised her to stay there. Jewell told
McFarland’s mother that Jackson had told Jewell that if Jewell
told McFarland’s mother what was going on, “we’ll kick your
butt.” On timely objection, McFarland’s testimony in this re-
spect was not received to show either the truth of what
McFarland’s mother told McFarland, or the truth of the state-
ments which McFarland’s mother attributed to Jewell.
ACCURATE WIRE HARNESS 1105
During the first few days after the walkout began, Respon-
dent experienced extreme difficulties in maintaining produc-
tion. A major problem involved a wire-cutting machine which
had been operated by walkout participant Gallienne. In accor-
dance with normal practice at the end of the workday, she had
turned the machine off before walking out. Operation of this
machine is essential to much of Respondent’s production. Em-
ployee Carl, who is McFarland”s nephew, reported to her that
he had overheard employee Gallienne saying that when her
wire-cutting machine was completely turned off, some of the
computer programs were lost.15 McFarland relayed Carl’s re-
port to Fernandez, and she and Attorney Greenberg obtained a
statement from Carl, which was not offered into evidence.
McFarland and (in effect) Fernandez testified that they sus-
pected the wire-cutting machine had been sabotaged. Eventu-
ally, a computer analyst called in by Respondent ascertained
that no programs had in fact been deleted. Fernandez testified
that nobody was disciplined or terminated as a result of the
investigation involving the wire-cutting machine, “there wasn’t
really what I felt wasn’t [sic] enough evidence.” He further
testified to having concluded that Respondent’s production
difficulties were mostly due to the disappearance of a loose-leaf
notebook, referred to in the plant as “the Bible,” which was a
compilation of some of the machine manuals and of notes writ-
ten by Respondent’s personnel in connection with correcting
various problems which Respondent had from time to time
experienced with its equipment. Fernandez suspected Galli-
enne had taken the “Bible,” but Gallienne denied to Respon-
dent’s “investigation company” that she had taken it, and Re-
spondent never ascertained what had happened to it.
On an undisclosed date shortly after the walkout began and
before participants in the walkout had returned to work on Au-
gust 16, Fernandez called Jewell into the office and gave her a
$1 raise, to $7 an hour. He said that the raise was for “sticking
by the Company and for staying there, for doing a good job.”
After the Regional Office had rejected Respondent’s July 20
settlement offer and before August 9, Powers approached
Jewell and said, “[D]idn’t you say that Tammy Jackson threat-
ened to kick your ass?” Jewell initially replied no, but said yes
after Powers pressed the matter.
Respondent’s manual provides that after an employee has
been working for Respondent for a 90-day “Introductory Pe-
riod,” he will be evaluated, and his evaluation will be discussed
with the employee by his immediate supervisor, “to determine
continued employment. If a new employee is found to be un-
satisfactory for the job he/she was hired to perform, before or at
the end of the ninety . . . day Introductory Period, the employee
may be terminated.” On August 9, Powers told Jewell that
Powers and Fernandez wanted to see Jewell in his office.
Jewell’s “Introductory Period” was drawing to a close. How-
ever, when she indicated to Powers a belief that the interview
was for an evaluation, Powers said, “ . . . it’s nothing to be wor-

15 This finding is based on McFarland’s testimony, which was of-
fered and received without objection or limitation. Carl and Gallienne,
both of whom are named in the complaint as having been unlawfully
discharged, did not testify.
ried about, nothing like that.”16 When Jewell and Powers en-
tered the office Fernandez and Greenberg were sitting there.
Fernandez introduced Greenberg as a lawyer. Then, Greenberg
asked Jewell about “your conversation with” Jackson. Initially,
Jewell did not know what he was talking about, and did not
want to get involved. Then, Powers told Jewell, “ . . . he’s
talking about the time after lunch on the day of the walkout,”
When [Jackson] said you were going to get your ass kicked.”
Powers further said that Jewell had been so scared that she was
going to file a police report. Jewell then said, “[I]f they would
harass me, yes, I would file a restraining order for them to stay
away from me.” When asked by the General Counsel whether
“during this meeting with Mr. Greenberg and [Fernandez] and
other management persons, did you feel that [Powers] or any-
body was directing you or coaching you?,” Jewell credibly
testified, “They were kind of coaching me yeah. . . I was
scared and nervous.”
During this conference Greenberg hand-printed the follow-
ing statement:

My name is Jamie Jewell. I am employed by Accurate
Wire as a production worker. I was at work on July 9,
1999 when co-worker Penny Harvie approached me about
the plans for a walkout. I told her I did not think I would
join it because I needed the job. A little later Kathy
Brown asked me if I decided to join. I said no - and then
she said Tammy Jackson wanted to talk to me.
Just before lunch Jackson approached me and asked if
I was going to join. I said no because I needed to pay my
bills. I told her I would let her know after lunch.
After lunch she asked me again. I said no because I
needed the job. She then said: “You’re going to get your
ass kicked. Everyone’s going to be mad. We need
100%.” She said this like she meant it. This conversation
took place on the sidewalk right outside the employee’s
door. No one else was standing there. I told co-worker
Kelly Crockett about Tammy’s threat that day. I also told
Shirley [Powers] and Theresa [McFarland] about
Tammy’s threat after the walkout that same day. I told
Shirley I thought about reporting this to the police so they
wouldn’t harass me anymore.
I have read the above 2-page statement and it is true
and correct to the best of my knowledge.

After Greenberg had hand printed this statement Fernandez
said that the word “harass don’t sound . . . let’s put threatened,
that would sound better,” Jewell said, “[W]ell, all right.” She
crossed out the hand-printed word “harass,” wrote over it the
word “threaten,” and initialed the change. She read and signed
the hand-printed statement, and thereafter signed a typewritten
copy which used the word “threaten” and not the word “har-
ass.” After she had given and signed this unsworn statement,
16 This finding is based on Jewell’s testimony. For demeanor rea-
sons, I do not credit Powers’ testimony that she told Jewell, “We need
you to make a statement about the threat that you got from Tammy
Jackson.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1106
Fernandez told her that by giving it, she had done “the right
thing.17
As discussed infra part II,H–J, on August 9 Respondent sent
Jackson a letter offering her reinstatement effective August 16,
but asserting that Respondent had “information that on July 9,
1999, you threatened a co-worker with physical harm. . . . This
charge, if sustained, could lead to your discharge.”
G. Settlement Agreements Executed by Moore and Wyatt;
Offers of Reinstatement
On August 5, 1999, employee Moore signed a settlement
agreement with Respondent, calling for “settlement pay” and
waiving reinstatement. Under date of August 9, 1999, Fernan-
dez sent to each of the 12 remaining employees who were al-
legedly unlawfully discharged in July 1999, a memorandum
which began as follows:

This is to clarify your employment status. It is now
clear to us that you did not quit, but that instead you went
on strike over terms of employment. As a striker, you
have remained an employee of the Company, with rights
to reinstatement. Since you did not quit, your employment
never terminated with the Company. The following de-
scribes your rights as a striker:

(a) You may return to your job immediately upon giving
up the strike without conditions;
(b) however, if you continue your strike and the Company
permanently replaces you, and after that you give up the
strike without conditions, the Company will reinstate you
to a job for which you are qualified, but only if there is an
opening for such a job. If there are no such openings you
will have to wait for one to occur before you are recalled.

Please contact me if you have any questions. If you
would like to return to work, please report to the plant on
Monday, August 16, 1999 at 7:00 a.m.

Five of these memoranda concluded with the following sen-
tence: “You will be returned to your job with the same benefit
package and at the same pay rate.”18 Six of these memoran-
dums concluded with the sentence: “You will be returned to
your job with [a specified] increase in pay.”19 These offers of
reinstatement were accepted by Stephanie Brown, Ehrn-
schwender, Harvie, Morris, Nichols, and Ross, all of whom
returned to work. These offers of reinstatement were rejected
by Carl, Gallienne and Slacker. The General Counsel stated on

17 My findings in this paragraph are based on Jewell’s testimony,
which is consistent with the face of the document. To the extent that
such testimony by Fernandez may constitute a denial, I do not credit his
testimony in response to the question, “Did anyone prompt Ms. Jewell
as to what to say in any way?” that “Those are her own words.” Pow-
ers, who testified for Respondent, was not asked about this matter, and
Greenberg, who tried the case for Respondent, did not testify.
18 Namely, those directed to Kathy Brown, Gallienne, Morris, Ross,
and Slacker.
19 Namely, those directed to Stephanie Brown, Carl, Ehrnschwender,
Harvie, Nichols, and Wyatt.
the record that all of the allegedly unlawfully discharged em-
ployees were offered reinstatement except Jackson.20
On August 13 employee Wyatt signed a settlement agree-
ment with Respondent which was virtually identical to the
agreement signed by employee Moore on August 9.
H. The Allegedly Unlawful Suspension and August Discharge
of Employee Tammy Jackson
The last sentence in the August 9 memorandum to Jackson
read as follows: “If you would like to return to work, please
report to the plant on Monday, August 16, 1999 at 7 a.m. at
which time we will discuss the enclosed Incident Report with
you.” This “ Incident Report,” from Fernandez and dated Au-
gust 9, stated:

RE: Incident Notice
We have information that on July 9, 1999, you threat-
ened a co-worker with physical harm.
We are investigating this incident and will inform you
of the result of our investigation. If you wish to give us
your side of the story or any other information, please con-
tact me to make an appointment to do so. This charge, if
sustained, could lead to your discharge or other discipline.

Jackson received one set of these documents through certi-
fied mail and another set through regular mail, about August 10
or 11. On receiving these documents, Jackson telephoned Re-
spondent. She was initially connected with comptroller Rosen,
but a minute or so later Fernandez came on the line, identified
himself, and told her that he was on speakerphone. Jackson
said that the letter offering reinstatement did not clarify what
her wages or job duties would be. Rosen said that this had been
an oversight, and that a “clarification memo” was on its way to
her. As to the “Incident Notice,” Jackson asked exactly what
she was supposed to have done. Fernandez said that she “had
threatened to kick [a female co-worker’s] ass if she . . . did not
participate.” He did not name the allegedly threatened em-
ployee, and Jackson did not ask him who it was. Jackson said
that she had not threatened anyone, and asked if she could
come in and discuss the matter with management. Fernandez
said that this was not necessary, told her to wait until she came
back to work on August 16, and said that he would discuss the
matter with her at that time.
Thereafter, and before August 16 Jackson received in the mail
the following memorandum from Fernandez, dated August 12:

This is to provide further clarification of my memo
dated August 9, 1999, concerning your employment status.
The Company is offering to return you to work on Mon-
day, August 16, 1999, at 7:00 a.m. without any conditions.
In other words, we are not asking you to waive or give up
any past or future claim you might have against the Com-
pany, whether under the National Labor Relations Act or
otherwise.
20 When so stating, the General Counsel also excepted Kathy Brown.
However, this exception was in effect erased by Brown’s subsequent
execution of a settlement with respect to her August suspension and
discharge (see the statement of the case, supra).
ACCURATE WIRE HARNESS 1107
Upon reporting to work, your assignment will be to
discuss with us the incident notice dated August 9, 1999.
If, after this discussion, you are suspended, you would re-
ceive pay at the rate of $8.35 an hour for your time at
work as per Company policy, and the Company will pay
its share of the cost of your health insurance for this month
(assuming that you pay your share).

When Jackson clocked in shortly before 7 a.m. on August
16, Fernandez was standing in the aisle near where the employ-
ees’ door was located. She asked whether he wanted her to
report to the office immediately or to wait until 7 a.m. He told
her to come to the office at 7 a.m. When she entered the office,
Fernandez, Kirves, Powers, and Rosen were present. Jackson
asked “to have a witness sit in on [my] behalf.” Management
agreed and employee Harvie (a participant in the walkout) was
present during the conference.
Fernandez asked Jackson what she had to say. She said that
she had not threatened anyone. Fernandez said that Respondent
had a statement from a coworker that on July 9 Jackson had
threatened to “kick her ass if she didn’t participate in the walk-
out.” Jackson said that this was not true, that it was “total fab-
rication,” and that nothing like this had happened. Jackson
asked who had made the accusation. Rosen said that her ac-
cuser was Jewell. Jackson said that this accusation was “totally
false,” that she had never threatened anyone. Jackson went on
to say that she hardly knew Jewell, and that Jackson did not
know why Jewell would say anything like that. Jackson said
that the only July 9 conversation she had had with Jewell had
been initiated by Jewell. Jackson went on to say that Jewell
had asked Stephanie Brown to ask Jackson to talk to Jewell
before lunch, and that Jewell and Jackson had met at the
timeclock just before lunch. Jackson further said to manage-
ment that Jewell had told her Jewell was “really scared” to
participate in the walkout because she was still a probationary
employee, she was afraid she might be fired, and she had bills
to pay. Jackson related that she had told Jewell that Jackson
had been advised that “we should be protected as far as walking
out as far as our job security.” Jackson further averred that she
told Jewell that Jackson understood Jewell’s concern, that she
had to do whatever was best for her, and that it was an individ-
ual choice. Jackson told management that this had been Jack-
son’s entire conversation with Jewell. Jackson said that she did
not know why Jewell would lie. Fernandez asked Jackson
whether she had threatened “anyone else.” Jackson said that
she had never threatened anyone.
Fernandez then told her that she was suspended effective
immediately. Jackson said that she did not agree with this ac-
tion, that it was not fair to take one employee’s word against
another’s without first investigating and checking it all out.
Fernandez said that he was just following company policy.
Jackson asked the length of her suspension. He “kind of
grinned,” shrugged his shoulders, and said, “Zero to two
weeks.” He told her that he had an escort for her, and had her
escorted outside by a security guard.21

21 My findings as to the conversation on that day are based on a
composite of Rosen’s contemporaneous notes (offered and received
into evidence without objection or limitation) and Jackson’s and
Fernandez’ testimony. Rosen and Kirves did not testify, and Harvie,
Later that day, Fernandez told Jewell that he had just sus-
pended Jackson, that Jackson had asked the identity of her ac-
cuser and he had “had to” give Jewell’s name, and that he
would advise her to make a police report, get a restraining or-
der, and maybe even get her phone lines tapped. So far as the
record shows, Jewell never followed Fernandez’ advice.
On the following day, August 17, Jackson telephoned Re-
spondent about her health insurance benefits. Initially, she was
connected with Rosen. She asked him whether it would be all
right for her to bring in her insurance contributions. He said
yes, but Fernandez joined the conversation by means of speak-
erphone and said no. She asked if it would be all right if a fam-
ily member brought in the contributions. She was told no, she
would have to mail them in. She asked Fernandez how the
investigation was going on, and whether he had talked to
Stephanie Brown yet. He asked why he would want to talk to
Stephanie Brown. Jackson reminded him that she had told him
that it was Stephanie Brown who had advised Jackson that on
July 9 Jewell had said she wanted to talk to Jackson before
lunch; after Rosen had verified Jackson’s account of her inter-
view with management on the previous day, Fernandez said
that management had not yet had a chance to talk to Stephanie
Brown, “We’ve been too busy.” Then, Fernandez again asked
Jackson if she had ever “threatened any other co-workers.” She
said that she was again telling him that she had not threatened
anyone. Neither Fernandez nor any other member of manage-
ment ever mentioned to Jackson anyone other than Jewell as a
person whom Jackson allegedly threatened.
On August 18 Rosen told Stephanie Brown that her name
had come up in connection with allegations by Jewell against
Jackson regarding a conversation near the timeclock. Inferen-
tially, Rosen asked Brown about the accuracy of Jackson’s
statement to management that Brown had transmitted a mes-
sage from Jewell to Jackson that Jewell wanted to speak to
Jackson. Brown said that Jackson’s statement was correct.
Brown went on to say that she had overheard the Jackson-
Jewell conversation at the timeclock; that Jewell had asked
Jackson what was going on; that Jackson had said the employ-
ees were walking out, and Jackson wanted Jewell’s support, but
if the employees did not have it, that was fine; that Jewell had
said she did not know if she could because she had bills to pay;
that Jackson had said this was fine, it was Jewell’s decision;
that nothing else was said inside the plant; and that Jackson and
Jewell had separated as soon as they left the plant and no fur-
ther conversation took place. Brown further told Rosen that
after lunch, when Jewell was working on the U-Van line,
Jewell told Jackson that Jewell had called a lawyer at lunch,
and he had told her not to walkout because she was in her pro-
bationary period and she could be fired, to which Jackson re-
plied, “Well, that’s fine. You don’t have to walkout. It’s your
decision.”22

Fernandez’ testimony. Rosen and Kirves did not testify, and Harvie,
who testified for the General Counsel, was not asked about this matter.
22 My findings as to Stephanie Brown’s conversation with Rosen on
this occasion are based on her testimony and on Rosen’s contempora-
neous notes, which were signed by both Rosen and Brown and were
offered and received into evidence without limitation or objection.
Rosen did not testify.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1108
On August 23 Rosen and Powers called Stephanie Brown
into the office and asked her to “clarify” the last part of her
statement about the conversation at the U-Van line. She gave
essentially the same description which she had given on August
18, and further named three other employees (Harvie; Mena
Minox; and “Toni,” inferentially Toni Ehrnschwender) who
were also working on that line at that time. He asked Brown if
she had been present at any other meetings between Jewell and
Jackson. Brown replied that there were no other meetings that
she knew of. Powers prepared some notes of this interview,
and they were signed by Brown with Rosen as a witness. Jack-
son credibly testified that during her August 16 conversation
with management, she had forgotten this second July 9 conver-
sation with Jewell. Jackson credibly testified that during this
second conversation, Jewell said she was not going to partici-
pate in the walkout because “someone” had told her during
lunch that she might be fired because she was still probationary,
to which Jackson replied, “. . . that’s fine. I told you that, you
know, it’s your decision. Do whatever is best for you.” Jack-
son credibly testified that this conversation was overheard by
the four employees who were working on the U-Van Line that
day.
I. Jackson’s August 23 Discharge
Fernandez testified that he believed Stephanie Brown’s ac-
count to him (which corroborated Jackson’s account) of Jack-
son’s July 9 conversation with Jewell at the timeclock, and that
he believed Brown’s account of Jackson’s July 9 conversation
with Jewell at the U-Van line. He further testified that he be-
lieved Jewell’s account of a conversation with Jackson outside
the employee entrance, during which alleged conversation
Jewell’s statement had averred that nobody else was there;
Respondent never specifically asked Jackson about this alleged
conversation outside the plant. By letter to Jackson dated Au-
gust 23, Fernandez stated:

On August 16, 1999, you were suspended pending the
Company’s investigation of an allegation that you threat-
ened a coworker with bodily harm. At our meeting on
August 16, you denied threatening anyone at the Com-
pany. You also said that you did not know why the co-
worker who made the allegation would have said anything
like that.
After thoroughly investigating this matter and evaluat-
ing the evidence, we have concluded that on July 9, 1999,
you told coworker Jamie Jewell that “you ‘re going to get
your ass kicked” for refusing to join the walkout of em-
ployees planned for that afternoon. This threat of bodily
harm against a coworker was totally unjustified, and such
misconduct will not be tolerated. Therefore, the Company
has decided to terminate your employment effective the
date of this letter. In addition, you are not to return to Ac-
curate Wire Harness (including its parking lot and
grounds) without first securing permission from me.

At the time of her discharge, Jackson had been working for
Respondent for almost 5 years. Her personnel file contains no
employee warning notices. Her most recent performance ap-
praisal, in late October 1998, had given her an overall rating
(on a scale of 1 to 5, with 5 being the highest) of 3.45, between
“good” and “very good.” She had scored “good” or better in
each of 11 factors except for “attendance,” where she scored
“improvement needed.” This last rating sheet contains the
following entry by Powers:

Tammy is a good employee, she needs to work on her
attendance. She has a lot of knowledge on all the lines.
She has been cross-trained in most areas. She has supervi-
sory experience. Her quality is very good. She cooperates
with supervision and finds things to do to help on other
lines. She has lots of knowledge on the Kam [?] line. Her
production level is average or above.

In connection with this appraisal, Jackson received a merit
increase of 35 cents an hour, to $7.85. During a period which
included May 1996, she had been a “team leader” or “lead per-
son.” Because of cutbacks, she had moved back to the line
assembly before Fernandez became Respondent’s president.
Fernandez testified that Jackson was a “good employee” and a
“good worker”; and that at the time of her discharge, he and
Powers had been thinking about making Jackson a team leader.
J. Employee Jamie Jewell’s Testimony about her Prewalkout
Conversations with Jackson
Jewell quit her employment with Respondent a day or two
after some of the participants in the walkout (not including
Jackson) returned to work on August 16, 1999. Jewell told
Powers that Jewell was quitting because “her nerves wouldn’t
handle it . . . she said she was having to go to the doctor for her
stomach, ulcers or something. And she said, ‘I wish I had
never seen . . . Accurate Wire Harness.’” Pursuant to a sub-
poena issued at Respondent’s request, Jewell testified before
me on March 1, 2000. On direct examination, she testified to
the following effect: Before lunch on the day of the walkout,
she asked Jackson if Jewell was guaranteed to get her job back
if she participated in the walkout, that she needed her job to
make the money. Later that morning, Jackson asked her
whether she was going to participate in the walkout, to which
Jewell replied that she had not yet decided and would tell Jack-
son after lunch. After lunch, Jewell again told Jackson that
Jewell was not sure whether she would participate in the walk-
out, because she needed the money. In reply, Jackson stated
that she needed the money too, but was going to participate in
the walkout anyway. Jackson said that she needed “at least 100
percent” participation in the walkout in order for the employees
to keep and return to their jobs.
After Jewell gave this testimony, Respondent’s counsel
asked whether she recalled anything else from the conversation,
and she said no. At this point, Respondent’s counsel drew her
attention to the statement which he had handprinted, and she
had signed, on August 9, 1999. Thereafter, she testified as
follows:
DIRECT EXAMINATION (CONT’D)
By Mr. Greenberg:

Now, I’m going to read this out loud and you tell me if
I’m reading it correctly. After lunch she asked me again. I
said no because I needed the job. She then said quote
ACCURATE WIRE HARNESS 1109
“You’re going to get your ass kicked. Everyone’s going to
be mad. We need 100 percent,” close quote.
Did I read that correctly?
A. Yes, you did.
Q. Does that refresh your recollection about your con-
versation with Tammy Jackson the day of the walk out?
A. She did not say that.
Q. If you didn’t say it, can you explain to me then
why you signed a statement that says that she did say it?
A. I was nervous. There was talk going around. I be-
lieve that I was afraid of that was going to be, you know,
for the procedure that would happen and I believe that
maybe, you know, I was afraid that I was going to get my
ass kicked if I didn’t do it because I was scared of not
walking out.
I was scared of not participating in the time clock and I
knew that most of them was going to and I would be one
of the very few that didn’t. Maybe it was in my mind but
as I recall she did not say that.

Jewell testified on March 1, 2000, that she could not recall
telling anyone from management, after her resignation in mid-
August 1999, that what she had told management about Jack-
son was untrue or mistaken.
Later that day, March 1, 2000, after Respondent’s counsel
had rested his case in chief, he stated on the record that Re-
spondent had authorized him to offer Jackson unconditional
reinstatement to her former position effective Monday, March
6, 2000, or on a date within a reasonable time thereafter, at the
same pay she had been receiving on “August 16, 1999, the day
of her termination.” Respondent’s counsel further stated that
Respondent was not conceding that the charges had merit, and
was not offering her backpay, but that she did not have to with-
draw her charges is order to come back to work.
K. Analysis and Conclusions
1. Respondent’s motion to dismiss on claim of
“prosecutorial misconduct”
At the hearing, Respondent’s counsel (Greenberg) moved
“that the charges be dismissed” for “prosecutorial misconduct,”
without spelling out whether his motion was directed to the
entire complaint or only part of it. Greenberg relied partly on
the following testimony by Respondent’s witness Jewell on
direct examination by him:

Q. You’re here today because my office served you
with a subpoena, is that correct?
A. Correct.
Q. And did you want to appear here today to testify?
A. No, not really.
Q. So, you’re here reluctantly?
A. I didn’t want to be here.
. . . .
Q. Okay. And do you recall that I visited you at [your
then employer] in December to serve you with the sub-
poena?
A. Yes.
Q. And do you recall me asking if you would be will-
ing to meet with me before the hearing to prepare for your
testimony?
A. Yes.
Q. And do you recall what you told me in response to
that?
A. I said that I believe that it wasn’t my right, I mean
it was my right that I did not have to speak with you be-
cause I had spoke with Theresa Donnelly [counsel for the
General Counsel] and she said that I did not have to speak,
you know, until Court date or whatever.
Q. Did Theresa Donnelly tell you that you did not
have to speak to him?
A. Or the Company, yes.
. . . .
Q. When Ms. Donnelly told you that you didn’t have
to speak to me or the Company, was that in response to a
question you asked or was it something that she just
volunteered to you? Did it just come out of the blue from
Ms. Donnelly?
A. I believe it was really on the answering machine of
my telephone, I mean, it was like I hadn’t spoke to—I
mean I had already spoke to her but it was left on the an-
swering machine that I could get in contact with her if I
needed to speak with her about it.
Q. Oh and in that same message she told you that you
did not have to speak to me or the Company, is that cor-
rect, do I understand that correctly?
A. I believe so.

In response to Greenberg’s claim that Donnelly’s statements
to Jewell constituted “witness tampering,” Donnelly replied, “I
was getting calls from employees and I don’t know whether
[Jewell] was one of them that talked to me before, but I did tell
employees . . . that it was their choice if they wanted to talk to
Mr. Greenberg. They had to go to trial with a subpoena but
they didn’t have to talk to him beforehand but they would have
to go to the trial. And I told her and everybody else, if you
want to talk to him you can talk to him and if you don’t want
to, you don’t have to.” Donnelly went on to state on the record
that she was not representing that her statements to Jewell were
in response to a question by her, but was representing that
Donnelly’s statements were in response to various statements to
her by employees who may or may not have included Jewell.
A subsequent exchange on the record between counsel indi-
cates as follows: About 6 months before the hearing, Green-
berg had a conference with Regional personnel who included,
and perhaps consisted of, Donnelly and the Regional Director.
In settlement discussions during this conference, Regional per-
sonnel asked Greenberg whether it “would . . . make a differ-
ence if somebody had changed their testimony?” Greenberg
said, “. . . sure we would consider that, what have you got? Do
you want to lay your cards on the table?” In response, Regional
personnel would not provide the relevant affidavits. During
this conference, Regional personnel told Greenberg that Jack-
son and Kathy Brown demanded reinstatement, whereupon
Greenberg said that “if it involves reinstatement then there’s
going to be no settlement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110
At this point in the hearing, Greenberg stated that Respon-
dent’s position on settlement during this conference with the
Regional Director was “based on the facts and the evidence that
we had at the time,” including Jewell’s signed statement to
Greenberg and management personnel. Before me, Greenberg
thereafter stated that if Respondent had been informed by either
Jewell or the General Counsel of Jewell’s “recantation,” then
Respondent’s offer of reinstatement would have been made at
that time rather than on March 1, 2000, near the end of the
hearing.
In response to Greenberg’s motion to dismiss, I stated that I
would not grant the motion at that point (before Respondent
had rested its case in chief), but that I would consider it in writ-
ing my decision. Although Greenberg stated that he would
brief the issue, it is not addressed in either of the posthearing
briefs. My unassisted research has failed to show any “prose-
cutorial misconduct.” Accordingly, the motion to dismiss on
that ground is denied. See NLRB v. Robbins Tire & Rubber
Co., 437 U.S. 214 (1978); NLRB v. Hardeman Garment Corp.,
557 F.2d 559 (6th Cir. 1977); Workman v. Bell, 178 F.3d 759,
771–772 (6th Cir. 1998), cert. denied 528 U.S. 913 (1999);
Caterpillar, Inc., 313 NLRB 626 (1993); Nueva Engineering,
269 NLRB 999, 1005 (1984), enfd. 761 F.2d 961, 969 (4th Cir.
1985); Pan American Electric, 328 NLRB 54 fn. 3 (1999);
Section 102.118 of the Board’s Rules and Regulations.
2. Whether the July 9, 1999 walkout was protected by
Section 7 of the Act
The uncontradicted evidence establishes that the employees,
who were not represented by any union, concertedly walked out
at about 3:15 p.m. on July 9, 1999, because of the automotive
employees’ failure to receive a wage increase or evaluations in
contemplation of a wage increase, the employees’ failure to
receive an up-to-date manual, management’s policies with re-
spect to medical leave, and management’s failure to comply
with the employees’ request for a meeting with management
“to discuss some troublesome and urgent concerns”—a request
which management never even acknowledged. Clearly, in
walking out, the employees intended to strike, and not to quit
their jobs (see infra sec. II,H,3). I conclude that the walkout
constituted concerted activity protected by Section 7 of the Act.
See, e.g. NLRB v. Washington Aluminum Co., 370 U.S. 9
(1962); Vic Tanny International, Inc. v. NLRB, 622 F.2d 237
(6th Cir. 1980); Robbins Engineering, 311 NLRB 1079, 1083–
1084 (1993).
I find unmeritorious Respondent’s contention in its answer
(not tendered in Respondent’s posthearing brief) that the strike
was unprotected because the employees’ letter allegedly gave
Respondent “an unreasonably short time [i.e, 2:10 to 3:15 p.m.]
to prepare for a meeting.” The strike would have been pro-
tected even if it had begun before the employees had requested
a meeting. Washington Aluminum, supra, 370 U.S. at 13–15.
Furthermore, Jackson credibly testified that the statement in the
employees’ letter, “RSVP/By 3:00 or walk out,” meant that the
employees intended to walkout unless management acknowl-
edged the request by 3 p.m., even if all management did was to
say that it did not have time to meet with the employees that
day “and possibly let [the employees] know [that management]
would work with [the employees] and set up a time for a meet-
ing to talk.” However, Fernandez never so much as acknowl-
edged the letter, let alone suggested a meeting at a later hour
more convenient to management; cf. Eaton Warehousing Co.,
297 NLRB 958 fn. 3, 962 (1990), enfd. 919 F.2d 141 (6th Cir.
1990). In any event, the employees (whom Respondent re-
quired to follow “the chain of command”) had been vainly
complaining to their immediate supervisors about the out-of-
date manual for more than 3 months, about the automotive
employees’ wages for approximately a month, and about the
medical-leave system for an undisclosed period, before the
employees threatened to and eventually did walkout in an effort
to obtain an audience.
3. Whether Respondent knew at material times that the em-
ployees were not quitting en masse but, rather, were striking
As part of his opening statement at the outset of the hearing,
after stating that the employees’ July 9 letter to Fernandez
ended with the words “RSVP by 3:00 or walk out,” Respon-
dent’s attorney, Greenberg, stated:

Now to a lay person, a walkout is a word that could
have a couple of different meanings. One is, “We’re go-
ing to walk off the job but we want to come back at some
point.” And another possible meaning is, mass resigna-
tion. As for example . . . the baseball umpires this past
summer, who submitted their mass resignation.
And—so Mr. Fernandez, wanting to make sure that he
understood the company’s legal rights and legal obliga-
tions, called . . . his business attorney on the phone and
explained the situation. And his business attorney said,
“Well, they’re employed at will. And if they leave before
the end of the shift, then they’re quitting their jobs.”
And so Mr. Fernandez went out to the time clock and
he [said] to the employees . . ., “If you all leave before the
end of the shift, we’ll consider this to be a resignation.”
And they walked out and so he did.

It is clear from the record that subjectively, the participants
in the walkout did not intend to quit their jobs but, instead,
intended to withhold their services temporarily in order to in-
duce management to meet with them to discuss their concerns
about their wages and working conditions. Thus, in order to
show management that the employees had not quit, they re-
frained from punching out before joining the walkout, which
began about 30 minutes before the end of the shift; moreover,
when walking out, they retained their locker keys notwithstand-
ing the provision in the employee manual requiring “any em-
ployee leaving employment” to turn in his keys to his supervi-
sor. Three of the employees who had signed the letter which
threatened that the employees would walkout changed their
minds when Fernandez told them that such action would mean
that they would not have a job. Before the employees decided
to walkout, employee Jackson telephoned the NLRB regional
office, and asked whether the employees could lose their jobs if
they walked out; she received a negative reply to this inquiry,
and relayed this information to employee Jewell when she ex-
pressed fear of being fired if she participated in the walkout
(see infra part II,H,6). During the employees’ restaurant meet-
ACCURATE WIRE HARNESS 1111
ing immediately after Fernandez’ and Powers’ “consider it your
resignation” remarks, several of the employees expressed in-
credulity at Respondent’s action in firing them. The employees
who participated in the walkout carried picket signs complain-
ing about “Refusal to Discuss Company Issues” and “Unfair
Pay Practices”—issues which would not likely have concerned
them if they regarded themselves as having resigned from Re-
spondent’s employ; indeed, because they were factory workers
who were paid a modest hourly wage,23 if they had believed
they had resigned they would likely have spent the next 2 busi-
ness days looking for jobs elsewhere rather than picketing Re-
spondent’s plant. Also, on July 15 Jackson filled out an NLRB
charge form (which states that “willful false statements on this
charge can be punished by fine and imprisonment”) alleging
that about July 9, Respondent had unlawfully “severed the [em-
ployment] of 14 of its employees because they exercised their
[statutory] right . . . to engage in a strike.”24
However, Respondent appears to contend that initially, and
perhaps until July 20,25 Fernandez believed that the action of
the 12 employees in walking out constituted a mass resignation.
I find that Fernandez was aware from the very outset that the
employees walked out because they had decided to withhold
their labor on a temporary basis in order to induce management
to take the action which the employees had requested in their
letter and which Kathy Brown repeated after Fernandez told her
and the other participants in the walkout that the walkout was
being “accepted” as their “resignation”—namely, a meeting
with management to discuss the employees’ “concerns.” Thus,
he successfully induced the Patels to refrain from leaving the
building to participate in the walkout by telling them that if
they did so they would have “no job,” a statement which he
could hardly have believed to be a persuasive means of induc-
ing employees to refrain from resigning their jobs. Then, re-
peating the message he had already told Powers to deliver, he
told the employees who had already left the building that if they
did not return inside within two minutes, he was going to “ac-
cept it” as the employees’ “resignation”—an assertion inconsis-
tent with any belief that when they walked out, they had al-
ready resigned. Also, Fernandez could not have believed that
Nichols had resigned on July 9, because on that day she took a
personal absence day and did not come to the plant at all;26 she
participated in the July 12 and July 13 picketing; and the picket

23 Six of the Respondent’s reinstatement offers stated that the em-
ployee would receive a wage increase to specified amounts varying
between $7 and $8.35 an hour. As previously noted, the automotive
employees were concerned at their failure to receive the $1 hourly
increase received by the steel-case employees.
24 The complaint attacks the July 9 discharge of 13 employees. In-
ferentially, the fourteenth employee whom Jackson had in mind was
part-time employee Holmes, who had signed the employees’ letter to
management but, before the walkout, had left work for the day.
25 As previously noted, on or before that date Fernandez told
McFarland and Powers that Fernandez had found out that the employ-
ees were not considered resigned but were considered on strike. Jack-
son’s first charge, which was mailed on Friday, July 16, stated that the
dischargees had been engaging in a strike.
26 Although her authorized signature appears on the employees’ July
9 letter to management, several of the other signatories actively worked
in the plant that day and did not participate in the walkout.
signs themselves evinced concerns (“Refusal to Discuss Com-
pany Issues,” “Unfair Pay Practices”) which would not likely
be entertained by employees who regarded themselves as hav-
ing resigned. Finally, Fernandez did not testify to a subjective
belief that the employees had intended to resign when they
walked out.
4. Whether on July 9 Respondent discharged the employees
named in the complaint
In response to the complaint allegation that about July 9,
1999, 13 named individuals (including Nichols) “concertedly
ceased work to protest working conditions” and about July 9
Respondent “terminated” them (including Nichols) for this
reason, Respondent’s answers aver that about July 9 these em-
ployees “abandoned their jobs” and that they were not “termi-
nated.”27 I agree with the General Counsel that the 12 employ-
ees who walked out on July 9 were in fact discharged.
Whether an employer’s statements constitute an unlawful
discharge depends on whether they would reasonably lead the
employees to believe that they had been discharged. The fact
of discharge does not depend on the use of formal words of
firing. It is sufficient if the words or actions of the employer
would logically lead a prudent person to believe his tenure had
been terminated. Elastic Stop Nut v. NLRB, 921 F.2d 1275,
1282–1283 (D.C. Cir. 1990), and cases cited; Romar Refuse
Removal, 314 NLRB 658, 670 (1994); Atlas Transit Mix Corp.,
323 NLRB 1144, 1150 (1997). I conclude that management’s
conduct as the employees were walking out on July 9 would
logically lead a prudent employee to believe that he had been
terminated. Thus, in the hearing of at least one employee who
nonetheless continued to participate in the walkout, Fernandez
told three employees who were at the exit door but had not yet
left the plant that their participation in the walkout would mean
that they had “no job,” whereupon they remained inside. Im-
mediately after that, Fernandez told the employees who had
already left the plant that if they did not return inside within
two minutes, he was going to accept this as the employees’
resignation—a statement which the strikers would logically
believe to be an assertion that unless they abandoned what they
intended as a strike, their tenure of employment would be sev-
ered because of a choice made by their employer. Employees
Jackson and Gallienne made it clear to Fernandez that they so
understood his “accept this as your resignation” statement by
telling him that “You can’t do that”—a remark which un-
equivocally placed on Respondent the onus of any separation of
employment. Nonetheless, Fernandez did not respond by ex-
pressing any belief that any such separation would be brought
about by their action and not his. Furthermore, when employee
Kathy Brown evinced a continued interest in maintaining the
strikers’ employee status, by saying that all they wanted man-
agement to do was to talk to them, Fernandez rejected this by
condemning their efforts to procure such a conference as “go-
ing about it the wrong way;” and, by promptly erecting a “Now
Hiring” sign in full view of the strikers, again advised them that
27 Except that the answer admitted that in August Jackson and Kathy
Brown were suspended and eventually terminated, a matter immaterial
to the aspect of the case discussed here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112
they were no longer in Respondent’s employ. Indeed, even
before Fernandez himself spoke to the strikers, and while they
were still in the plant and heading toward the door, Powers told
them that if they walked out, Respondent was going to accept
this as their resignation. I conclude that management’s state-
ments and conduct unequivocally advised the 12 employees
who walked out that they were discharged. See Elastic Stop
Nut, supra, 921 F.2d at 1282–1283; Edy’s Grand Ice Cream,
323 NLRB 683, 694 (1997), enfd. 140 F.3d 684 (7th Cir. 1998).
Accordingly, I attach no significance to the employees’ failure
to ask management personnel in terms if they really meant what
they had said.28
For the foregoing reasons, I conclude that the 12 employees
named in the complaint who walked out on July 9 were imme-
diately discharged. However, the record fails to show that a
notice of termination was ever effectively communicated to
employee Nichols, who was absent from the plant on the day of
the walkout. Accordingly, I find that the General Counsel has
not shown by a preponderance of the evidence that Respondent
discharged her. See NLRB v. Fluor Daniel, Inc., 102 F.3d 818,
839 (6th Cir. 1996). The complaint will be dismissed as to her.
5. Conclusions as to the alleged unlawful July discharges and
related allegations
For the foregoing reasons, I find that Respondent violated
Section 8(a)(1) of the Act by discharging the following em-
ployees, on July 9, 1999, because they were engaging in a
strike protected by Section 7 of the Act: Kathy Brown, Stepha-
nie Brown, Letcher Carl, Toni Ehrnschwender, Phyllis Galli-
enne, Penny Harvie, Tammy Jackson, Brian Moore, Paul Mor-
ris, Patty Ross, Doug Slacker, and Jonathan Wyatt.29 Under all
the circumstances, the statements to the employees by President
Fernandez and Production Supervisor Powers, that if the em-
ployees walked out Respondent was going to accept that as
their resignation, constituted a threat to discharge them if they
went out on a strike protected by Section 7 of the Act. Accord-
ingly, I find that these statements constituted further violations
of Section 8(a)(1). Vic Tanny, supra, 622 F.2d at 241; Virginia
Mfg. Co., 310 NLRB 1261(1993), enfd. 27 F.3d 265 (4th Cir
1994).30

28 Cf. Pink Supply Corp., 249 NLRB 674 (1980), relied on by Re-
spondent, where, as a whole, the uncertainty in the employer-employee
conversation during which the employees were allegedly told they were
discharged was equally attributable to the employees (who, although
they denied they were quitting, failed to answer the employer’s inquiry
“. . . what do you call it?”) and the employer.
29 Washington Aluminum, supra, 370 U.S. at 12–18; Vic Tanny, su-
pra, 622 F.2d at 241; Robbins Engineering, supra, 311 NLRB at 1083–
1084.
30 I need not and do not consider whether this statement would have
violated the Act if Fernandez had believed that the employees were not
striking, but instead that they were engaging in a mass resignation. Cf.
J. I. Case Co. v. NLRB, 321 U.S. 332, 339 (1944), affirming in this
respect 134 F.2d 70, 73 (7th Cir. 1943); Douglas Foods Corp., 330
NLRB 821 (2000); Frontier Hotel & Casino, 323 NLRB 815, 816
(1997); Williamshouse of California, Inc., 317 NLRB 699, 713 (1995);
Virginia Mfg., supra, 310 NLRB 1261.
6. Whether Jackson’s August suspension and discharge
violated Section 8(a)(1) on the basis of the Burnup & Sims
line of cases
Respondent’s August 9 letter to all the participants in the
walkout, including Jackson, admitted that it was “clear to us
that . . . you went on strike over terms of employment”—in
other words, that Respondent admittedly knew, at least by the
time that Respondent suspended Jackson on August 16, that in
walking out on July 9, she was participating in the concerted
activity of striking. Moreover, as shown supra section II,H,2,
this strike was an activity protected by Section 7 of the Act.
Furthermore, Respondent suspended Jackson on August 16, on
the stated suspicion that on July 9 she had threatened employee
Jewell with bodily harm if she did not join the walkout, and
discharged Jackson on August 23 on the stated ground that in
Respondent’s opinion, she had in fact engaged in such conduct.
As stated in Pepsi-Cola Co., 330 NLRB 474 (2000), where
(as here) action is taken with respect to an employee’s tenure of
employment, on the employer’s claim of misconduct arising out
of a protected activity, under NLRB v. Burnup & Sims, 379 U.S.
21 (1964), an unfair labor practice finding is called for unless
the employer has sustained the burden of showing that it held
an honest belief that the employee engaged in serious miscon-
duct; 379 U.S. at 23. Once the employer establishes that it had
such an honest belief, the burden shifts to the General Counsel
to affirmatively show that the misconduct did not in fact occur.
Rubin Bros. Footwear, 99 NLRB 610, 611 (1952), enf. denied
on other grounds 203 F.2d 486 (5th Cir. 1953). See also Tele-
dyne Industries v. NLRB, 911 F.2d 1214, 1222 (6th Cir. 1990).
For the reasons set forth infra section II,H,7, I find that Re-
spondent has failed to sustain its burden of showing that it had
an honest belief that Jackson engaged in serious misconduct. In
any event, as to whether Jackson in fact threatened Jewell, the
evidence preponderantly shows that this did not occur. More
specifically, Jackson, Jewell, Stephanie Brown, and Ehrn-
schwender all credibly testified that when attempting to induce
Jewell to join the walkout, Jackson told her that whether to do
so was up to Jewell, and that these inducements were unaccom-
panied by threats of any kind. Indeed, in attempted support of
Respondent’s contention that Jackson in fact threatened Jewell,
Respondent’s posthearing brief cites only Powers’ testimony
that Jewell so alleged to Powers a half hour or more after the
walkout, which began after Jackson had allegedly threatened
Jewell.31 However, as previously noted, I credit Jewell’s denial
31 Although correctly pointing out that the General Counsel did not
object to Powers’ hearing testimony in this respect, the brief of Re-
spondent’s counsel does not rely upon such failure as permitting con-
sideration of Powers’ testimony to show that Jackson in fact made such
statements to Powers. Cf. Rule 103 (a)(1) of the Fed. R. Evd.; U.S.
Ecology Corp., 331 NLRB 223, 225 (2000); Today’s Man, 263 NLRB
332 (1982). In view of my action in discrediting Powers’ testimony
that Jewell made this statement, and crediting Jewell’s denial that she
thus accused Jackson, I need not and do not evaluate Respondent’s
contention that Rule 803(2) of the FRE (Excited Utterance) renders
Powers’ testimony about statements allegedly made by Jewell, at an
undisclosed hour after the 3:45 quitting hour, probative evidence of
conduct allegedly engaged in by Jackson at an undisclosed hour after
ACCURATE WIRE HARNESS 1113
that she told Powers that Jackson had threatened Jewell, and do
not accept Powers’ testimony otherwise. As previously noted,
Powers testified that in telling her about Jackson’s alleged
threat, Jewell attached it to signing the employees’ letter
(which, the record suggests, she was never asked to sign).
Moreover, Powers and Fernandez both testified that on July 9,
she reported to him that Jewell had been threatened by Jackson;
and there is no evidence that management ever received any
report about this alleged incident from anyone other than
Jewell. However, so far as the record shows, during the August
9 interview with Jewell, neither Powers nor Fernandez inquired
about the discrepancies between Jewell’s alleged report to
Powers (which attached Jackson’s alleged threat to signing the
letter) and Jewell’s written statement (which attached Jackson’s
alleged threat to nonparticipation in the walkout). Rather, dur-
ing his August 23 interview with Jackson and in his letter dis-
charging her, Fernandez simply attached Jackson’s alleged
threat to nonparticipation in the walkout. In view of these dis-
crepancies, and for demeanor reasons, I credit Jewell. Because
McGlothin’s testimony about Jewell’s eventual naming of
Jackson is consistent with Jewell’s having said this after her
under-pressure August 9 interview with and written statement
to management about Jackson, I do not regard McGlothin’s
testimony as tending to impeach Jewell’s testimonial denial that
Jackson made these remarks. I find at this point that Jackson’s
suspension and discharge violated Section 8(a)(1) of the Act,
on the ground that the Respondent’s stated reason for her sus-
pension and discharge was misconduct arising out of protected
activity, Respondent was aware of all the facts which rendered
such activity protected, and the evidence preponderantly shows
that she did not in fact engage in such misconduct.
Although as to this aspect of the case it is likely unnecessary
to resolve the very limited discrepancies between the testimony
of the four employee witnesses, on the basis of a composite of
their testimony and for the benefit of reviewing authority I find
that as to the July 9 Jewell-Jackson contacts on the day of but
before the walkout the following occurred: Jewell asked
Stephanie Brown to ask Jackson to talk to Jewell before lunch.
At the timeclock just before lunch, Jewell told Jackson that
Jewell was “really scared” to participate in the walkout because
she was still a probationary employee, she was afraid she might
be fired, and she had bills to pay. Jackson replied that she had
been advised that the employees should be protected as far as
walking out as far as their job security. Jackson said that it
would be nice if the employees could all be together, but that
she understood Jewell’s concern, that Jewell had to do what-
ever was best for her, and that it was an individual choice.
Nothing else was then said inside the plant. Jackson and Jewell
separated as soon as they left the plant for lunch, and no further
conversation took place between them before lunch. After
lunch, when Jewell was working on the U-Van line, Jewell told
Jackson that Jewell had called a lawyer at lunch, and he had
told her not to walkout because she was in her probationary
period and could be fired, to which Jackson replied that this
was fine, Jewell did not have to walkout, and it was her deci-

Jewell’s lunch period, which ended at 12:15 or 1 p.m., and before the
walkout began at 3:15 p.m.
sion.32 No contacts occurred between them outside the plant on
August 9.
7. Whether Jackson’s August suspension and discharge vio-
lated Section 8(a)(1) and (4) because motivated by her partici-
pation in the walkout and/or because she filed and/or partici-
pated in the processing of the charge
Further, I agree with the General Counsel that in suspending
and then discharging Jackson in August 1999, Respondent was
motivated by her participation in the walkout and by her filing
and participation in the processing of the charges.
Thus, by Fernandez’ own admission he did not want any of
the participants in the walkout to return to work. As shown
supra part II,H,3, he discharged all of the participants (includ-
ing Jackson), because of their strike activity, as soon as they
walked out. He thanked the nonparticipating employees for not
walking out, and told them that they would benefit by their
“loyalty,” He attempted to have the pickets removed by the
police. He offered the participants a money payment if they
waived reinstatement, admittedly because he did not want them
back. After discharging the strikers for striking and before
offering them reinstatement, Fernandez repeatedly remarked
that the participants in the walkout had left Respondent in a
“terrible mess” and that he had previously thought more of at
least some of them and had never thought they would be part of
such conduct. Furthermore, Fernandez was aware of and re-
sented Jackson’s leadership in the walkout. Thus, before the
July 9 walkout, Powers told Fernandez that the employees’
letter that the employees were planning a walkout appeared to
be in Jackson’s handwriting, an opinion whose accuracy Jewell
confirmed to Powers later that afternoon. On July 13, upon
reading a newspaper article which attributed to Jackson the
statement that the participants in the walkout were “considering
organizing a union,” Fernandez said that he did not want the
shop to become union, and that before he would let a union take
over, he would close down the place. That same day, when
observing the pickets (who included Jackson), Fernandez said
that he could not believe the employees were doing this, and
that Jackson and her employee mother “had the legal advice to
keep it going.” Further, even before receiving the second
charge signed by Jackson (and, perhaps, even before receiving
her first charge), Fernandez resentfully drew a contrast between
the results of Jackson’s consultation with knowledgeable Board
personnel and his discovery that he had received misleading
information from his own lawyer, that Fernandez might have to
“hire [the strikers] back,” and that he did not want to do this.
Furthermore, the record shows that Respondent earnestly at-
tempted to obtain some sort of plausible pretext for avoiding
the reinstatement of Jackson, a 4-year employee with a good
work record. Thus, although Powers testimonially denied that
her alleged report to Fernandez about Jackson’s alleged threat
was motivated by Jackson’s participation in the walkout, and
32 For demeanor reasons, I do not credit Jewell’s testimony that
when encouraging her to participate in the walkout, Jackson said that
she needed “at least 100 percent” of the employees to walkout in order
for the employees to be able to keep their jobs. Rather, I credit Jack-
son’s testimony that she never said anything to Jewell about having to
have 100 percent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114
testified that when making this alleged report Powers did not
know that Jackson and Kathy Brown were involved in leading
the walkout, Powers told Fernandez before the walkout that the
employees’ letter appeared to be in Jackson’s handwriting,
Powers attached the evening of July 9 to her alleged report to
Fernandez about Jackson, and the undisputed evidence shows
that earlier that day Jewell had told Powers that Jewell thought
Jackson had written the employees’ letter and that Kathy
Brown had urged individual employees to participate in the
walkout. Moreover, at the time Powers allegedly made this
July 9 report, Fernandez by his own admission did not conclude
therefrom that returning Jackson to work would be more objec-
tionable than returning any other striker to work. However,
after the rejection of Respondent’s July 20 settlement offer
which withheld reinstatement from Jackson, Powers ap-
proached Jewell and asked her, “.[D]idn’t you say that Tammy
Jackson threatened to kick your ass?” Jewell had not said this,
and truthfully denied that Jackson had made such a statement,
but Powers then exerted some pressure on Jewell (a probation-
ary employee who was Powers’ immediate subordinate) to
obtain the affirmative response which Powers was seeking.
Thereafter, Powers told her that Powers and Fernandez wanted
to see her in the office, and escorted her there, where she also
encountered a man (Greenberg) whom Jewell had never met
before and who was accurately introduced to her as a lawyer.
When she displayed bewilderment at Greenberg’s inquiry about
“your conversation with” Jackson, Powers obligingly explained
that Greenberg was referring “the time after lunch” on the day
of the walkout, when Jackson “said you were going to get your
ass kicked”—a statement which Powers had pressed Jewell to
attribute to Jackson. Continuing to lead Jewell in her responses
to Greenberg’s inquiry, Powers went on to claim that Jewell
had been so scared she was going to file a police report—an
assertion to which Jewell reacted merely by saying that she
“would file a restraining order if they would harass me” (em-
phasis added). Moreover, after Greenberg had hand-printed the
statement which Jewell eventually signed, Fernandez success-
fully requested a change in the word “harass”—“let’s put
threatened, that would sound better.”
Furthermore, after pressuring Jewell into recanting her ini-
tial, oral exoneration of Jackson and, instead, signing an accu-
satory statement, Respondent sought to minimize Jackson’s
opportunity to refute Jewell’s accusation. Thus, although Re-
spondent obtained Jewell’s written statement on August 9, and
about August 12, Jackson denied having threatened anyone,
Fernandez declined to discuss the matter with her until she was
to return to the plant on August 16, pursuant to Respondent’s
conditional offer of reinstatement. Although Jackson again
denied to Fernandez on August 16, that she had threatened
Jewell or anyone else, Fernandez suspended Jackson on that
date and had her escorted outside by a security guard. Fernan-
dez initially disregarded her August 16 claim that her version of
her contacts with Jewell could be partly corroborated by em-
ployee Stephanie Brown, and when Jackson reminded him of
this on August 17, he replied that he had been too busy to talk
to Brown. After management (through Rosen) did get around
to interviewing Brown, who corroborated Jackson’s statement
(contrary to Jewell) that Jewell had initiated a July 9 conversa-
tion with Jackson about the walkout and also Jackson’s account
of that timeclock conversation, Rosen asked Brown about a
conversation between Jewell and Jackson at the U-Van Line (a
location previously given by Brown), even though Jewell’s
written statement had attached to a location outside the plant
the sole alleged conversation with Jackson to which Jewell’s
statement attached a threat. On the other hand, management
never specifically asked Jackson about a July 9 conversation
with Jewell outside the plant when nobody else was there.
Moreover, although Jewell’s signed statement had said that on
the day of the walkout she had told quality control engineer
McFarland about this alleged conversation, Fernandez did not
testify to asking McFarland about the matter, and there is no
evidence that he did so.33 Rather, he allegedly rejected the
statement of a 4-year employee with a good work record, who
at one time had been one of Respondent’s supervisors and who
had been under consideration for a promotion, in favor of a
statement by visibly nervous probationary employee Jewell
(whose first evaluation was, as Powers admittedly knew, com-
ing up soon), where this allegedly credited statement was con-
trary to Jewell’s initial representation to Powers, was given in
the presence of management and its lawyer in response to lead-
ing remarks by Powers (Jewell’s immediate superior), was
physically written by management’s lawyer, and was to some
extent rephrased by Fernandez himself to make it “sound bet-
ter.”
For the foregoing reasons, I conclude that the evidence pre-
ponderantly shows that in suspending and then discharging
Jackson, Respondent was motivated solely by her participation
in a strike protected by Section 7 of the Act, by her efforts to
encourage others to participate, and by her action in consulting,
and filing the instant charges with, the Board’s Regional Office.
No different conclusion is warranted by Respondent’s failure to
discharge striker Gallienne on the suspicion (which she denied)
that she had taken the equipment “Bible;” see NLRB v. Centra,
Inc., 954 F.2d 366, 374 (6th Cir. 1992); NLRB v. Challenge-
Cook Bros. of Ohio, 374 F.2d 147, 152 (6th Cir. 1967); Le
Madri Restaurant, 331 NLRB 269, 277 (2000). I note that
Gallienne took much less action in connection with the walkout
then did Jackson. Because of my finding that Respondent was
in no respect motivated by a good-faith belief that Jackson had
threatened Jewell, there is no need for further analysis. Gen-
eral Fabrication Corp., 328 NLRB 1114, (1999); Limestone
Apparel, 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). Accordingly, I conclude that Jackson’s August suspen-
sion and discharge violated Section 8(a)(1) and (4) of the Act.

33 As a witness for Respondent, McFarland testified that “Jamie
[Jewell] did not directly come to me and tell me that [Jackson] threat-
ened to kick her butt if she was not a part of the walkout.” McFarland
testified that she could not recall whether Jewell had made such a re-
mark to the company personnel in the plant after they had cleaned up
on July 9. It is unclear whether management asked employee Crockett
about the assertion in Jewell’s written statement that she had told
Crockett, as well as McFarland, about Jackson’s alleged threat. Crock-
ett did not testify.
ACCURATE WIRE HARNESS 1115
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent has violated Section 8(a)(1) of the Act by
threatening employees with discharge if they went out on a
strike protected by Section 7 of the Act.
3. Respondent has violated Section 8(a)(1) of the Act by
discharging the following employees on July 9, 1999: Mary
Kathryn Brown, Stephanie Brown, Letcher Carl, Toni Ehrn-
schwender, Phyllis Gallienne, Penny Harvie, Tammy Jackson,
Brian Moore, Paul Morris, Patty Ross, Doug Slacker, and Jona-
than Wyatt.
4. Respondent has violated Section 8(a)(1) and (4) of the
Act by suspending employee Tammy Jackson on August 16,
1999, and discharging her on August 23, 1999.
5. The unfair labor practices set forth in Conclusions of Law
2, 3, and 4 affect commerce within the meaning of Section 2(6)
and (7) of the Act.
6. Respondent has not violated the Act by discharging em-
ployee Mearlean Nichols.
REMEDY
Having found that Respondent has violated the Act in certain
respects, I shall recommend that Respondent be ordered to
cease and desist from such conduct, and like or related conduct,
and to take certain affirmative action necessary to effectuate the
policies of the Act.
Employees Moore and Wyatt have waived reinstatement and
received “settlement pay”; accordingly, no reinstatement or
backpay order will issue as to them. Employees Mary Kathryn
Brown, Stephanie Brown, Carl, Ehrnschwender, Gallienne,
Harvie, Morris, Ross, and Slacker have received reinstatement
offers effective August 16, 1999; accordingly, no reinstatement
order will issue as to them. Respondent will be required
(unless it has already done so) to offer employee Tammy Jack-
son reinstatement to her former position or, if such a position
no longer exists, to a substantially equivalent position. Also,
Respondent will be required to make the following employees
whole for any loss of earnings and other benefits they may have
suffered by reason of their discharge on July 9, 1999: Mary
Kathryn Brown, Stephanie Brown, Carl, Ehrnschwender, Galli-
enne, Harvie, Morris, Ross, and Slacker. Abilities & Goodwill,
Inc., 241 NLRB 27 (1979), enf. denied on other grounds 612
F.2d 6 (1st Cir. 1979). In addition, Respondent will be required
to make employee Jackson whole for any loss of earnings and
other benefits she may have suffered by reason of her discharge
on July 9, 1999 (see Abilities & Goodwill, supra), her suspen-
sion on August 16, 1999, and her discharge on August 23,
1999, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950). All sums due hereunder will include interest as com-
puted in New Horizons for the Retarded, 263 NLRB 1173
(1987). In addition, Respondent will be required to expunge
from its records all references to the unlawful termination of
the employees named in this paragraph (including Mary Kath-
ryn Brown, unless Respondent has already done so), and to the
unlawful suspension of Tammy Jackson, and to notify them in
writing that this has been done and that the actions and matters
reflected in these documents will not be used against them in
any way. Also, Respondent will be required to post appropriate
notices.
On the basis of these findings of fact and conclusions of law,
and the entire record, I issue the following recommended34
ORDER
Respondent Accurate Tool & Manufacturing Inc, d/b/a Ac-
curate Wire Harness, Avondale, Louisiana, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge if they go out on a
strike protected by Section 7 of the Act.
(b) Suspending or discharging employees because they have
gone out on a strike protected by Section 7 of the Act, or be-
cause they have instigated or in a lawful manner attempted to
induce other employees to engage in such a strike.
(c) Suspending, discharging, or otherwise discriminating
against employees because they have filed charges or given
testimony under the Act.
(d) 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) If Respondent has not already done so, offer Tammy
Jackson, within 14 days from the date of this Order, full rein-
statement to her former position or, if such a position no longer
exists, a substantially equivalent position, without prejudice to
her seniority or other rights and privileges previously enjoyed.
(b) Make Tammy Jackson whole for any loss of earnings and
other benefits suffered as a result of her July 1999 discharge,
her August 1999 suspension, and her August 1999 discharge, in
the manner set forth in the remedy section of this decision.
(c) In the manner set forth in the remedy section of this De-
cision, make the following employees whole for any loss of
earnings and other benefits suffered as a result of their July
1999 discharge: Mary Kathryn Brown, Stephanie Brown,
Letcher Carl, Toni Ehrnschwender, Phyllis Gallienne, Penny
Harvie, Paul Morris, Patty Ross, and Doug Slacker.
(d) Within 14 days from the date of this Order, remove from
its files all references to the unlawful terminations of the fol-
lowing employees, and the unlawful suspension of Tammy
Jackson, and within 3 days thereafter, notify such employees in
writing that this has been done and that the actions and matters
reflected in the documents will not be held against them in any
way: Stephanie Brown, Letcher Carl, Toni Ehrnschwender,
Phyllis Gallienne, Penny Harvie, Tammy Jackson, Brian
Moore, Paul Morris, Patty Ross, Doug Slacker, Jonathan Wyatt,
and (unless Respondent has already done so) Mary Kathryn
Brown.
(e) Preserve and, on request, make available to the Board or
its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records

34 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 Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116
and reports, and all other records, including an electronic copy
of such records if stored in electronic form, necessary or useful
in analyzing the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by Region 9, post at its facil-
ity in Springboro, Ohio, copies of the attached notice marked
“Appendix.”35 Copies of the notice, on forms provided by the
Regional Director for Region 9, 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

35 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.”
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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to current em-
ployees and former employees employed by the Respondent at
its Springboro facility at any time since July 9, 1999.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply,
The complaint is dismissed as to the discharge of Mearlean
Nichols.