Cadence Innovation, LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2008

09-CA-043672 (N.L.R.B. Sep. 17, 2008)

JD–52–08
Troy, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CADENCE INNOVATION, LLC
Cases 9-CA-43672
and 9-CA-43673
9-CA-43674

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW),
AFL-CIO
Naima R. Clarke, Esq., for the General Counsel.
Craig M. Stanley, Esq. (Butzel Long, P.C.)
of Detroit, MI, for the Respondent.
Ava Barbour, Esq. of Detroit, MI,
for the Charging Party.
DECISION
Statement of the Case
PAUL BOGAS, Administrative Law Judge. I heard these consolidated cases in Detroit,
Michigan, on March 25, 26, 27, and 28, 2008. The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO (the Union) filed the initial
charge on March 16, 2007, the second charge on April 27, 2007, and the third charge on May 4,
2007. The Union filed amended charges in all three cases on May 25, 2007.1 The Regional
Director of Region 9 of the National Labor Relations Board (the Board) issued the order
consolidating cases and the consolidated complaint on November 21, 2007. The complaint
alleges that Cadence Innovation, LLC (the Respondent) discriminated in violation of Section
8(a)(3) and (1) of the Act by discharging employee Tawana Merriewether and disciplining,
suspending and discharging employee Shonttaye Thomas because of their union support and
protected activities. The complaint also alleges that the Respondent violated Section 8(a)(1) by
threatening to discharge employees because of their union activities. The Respondent filed a
timely answer in which it denied committing any of the violations alleged.

1 The charge numbers for the three cases were changed prior to the issuance of the
Consolidated Complaint and Notice of Hearing: Case 9-CA-43672 had originally been
designated Case 7-CA-50215; Case 9-CA-43673 had originally been designated Case 7-CA-
50320; and Case 9-CA-43674 had originally been designated Case 7-CA-50338.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Union, and the Respondent, I
make the following findings of fact and conclusions of law.
Findings of Fact
I. Jurisdiction
The Respondent, a corporation with its headquarters in Troy, Michigan, and offices and
places of business throughout the State of Michigan, manufactures and sells automotive parts.
In conducting these operations during the 12-month period preceding issuance of the complaint,
the Respondent purchased and received at its Michigan facilities goods valued in excess of
$50,000 directly from points outside the State of Michigan. The Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
The Respondent manufactures automotive parts at facilities in Michigan, including one
known as the Masonic plant and another known as the Groesbeck plant.2 In early 2007, the
Union initiated an effort to become the collective bargaining representative of employees at a
number of the Respondent’s facilities, including the Masonic and Groesbeck plants. The
discharges of Merriewether and Thomas took place at the Masonic facility and the
Respondent’s alleged threat is purported to have been made at the Groesbeck facility.
The Masonic plant has between 300 and 600 hourly employees.3 Those employees are
organized into approximately six departments, including the IP line (where dashboards and door
panels are assembled) and molding (where components are made for use by the IP line).
Merriewether worked as a production operator on the IP line and Thomas as a hi-lo driver4 in
the molding department.
Jennifer Mort, the plant manager for the Masonic facility, testified that the Respondent
opposed the union effort. Shortly after the Union began its campaign, the Respondent retained
a labor consulting firm -- Russ Brown and Associates – to help the company defeat the Union.
In February 2007, Loren Clyburn, an employee of Russ Brown and Associates, began to

2 The Respondent acquired the Masonic plant, as well as other facilities, from Venture
Industries in May 2005. The Respondent initially operated the former Venture facilities under
the name “New Venture Industries,” but in November 2005 the Respondent changed the name
of the enterprise to Cadence Innovation.
3 In an NLRB decision regarding the Union’s representation petition, the number of hourly
employees at Masonic was reported to be about 324. Decision of April 3, 2007, in Case 7-RC-
23080. One of the witnesses at the hearing in the instant case estimated the number of
employees at Masonic to be “400 plus” and another estimated that number at 600. Transcript at
Page (Tr.) 230 and Tr. 782. There was no testimony about the number of hourly employees at
the Groesbeck plant, but the April 3, 2007, decision set the number at 245, and also stated that
the total number of Cadence employees that the Union was seeking to represent was
approximately 1270.
4 Hi-lo drivers are also sometimes referred to in the record as “material handlers.”
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campaign against the Union at the Masonic plant. He was present at the Masonic plant 5 days
a week and would walk around the facility’s work areas talking to employees. He also held a
series of group meetings during which he showed videotapes to employees. His objective was
to disseminate negative information about unionization.
B. Merriewether
1. Employment and Union Activities
Merriewether began working as a production operator at the Masonic plant’s IP line on
May 3, 2006, and was terminated 10 months later on March 15, 2007. She started as a
temporary employee and during her period of temporary employment received a 45-day review
rating of “above average,” and a 90-day review rating that fell between “above average” and the
highest possible rating of “excellent.” In early November, the Respondent offered Merriewether
the production operator position on a permanent basis, something it did for temporary
employees who had performed well. Merriewether accepted and became a permanent
employee on November 6, 2006. At the time the Respondent made her employment
permanent, the Respondent said nothing to Merriewether indicating that, despite having already
worked at the Masonic facility for 6 months, Merriewether would be considered a probationary
employee. Merriewether was informed that she would receive a pay raise upon the successful
completion of 90 days as a permanent employee. On February 5, 2007 -- 90 calendar days
after her employment became permanent -- Merriewether received the raise.
Merriewether did not work every day between the time she became a permanent
employee and the time she received the 90-day pay raise. During one period the Respondent
suspended operations at the Masonic facility and temporarily laid off all the employees there,
including Merriewether. Merriewether’s layoff lasted from January 8 to January 26, 2007.
During her first 90 days of permanent employment, Merriewether was also out sick for 2 days,
absent for personal reasons for 1 day, and late for work four times. The Respondent’s
attendance records also indicate that Merriewether was not scheduled to work on weekends.
Subsequent to receiving the 90-day raise, Merriewether was laid off for an additional 5 days, out
sick for 2 days, and absent for personal reasons for 1 day. During that period she arrived late or
left early on six occasions.
At about the same time that she received her 90-day raise, Merriewether found out
about the Union’s organizational campaign at Cadence and became an active and open union
supporter. Merriewether collected union authorization cards from employees, distributed union
buttons, and spoke to co-workers about the Union during breaks and outside of work. She also
showed her union support by openly wearing a large number of prounion buttons – as many as
20 at a time – at work each day. Although many Masonic employees wore prounion buttons
during the campaign, only a few IP line workers wore as many as Merriewether. Cindy Hollis,
one of Merriewether’s supervisors, was present when Merriewether engaged in some of her
activity in support of the Union, including wearing buttons, distributing buttons, and talking about
the Union in the break room. After Hollis saw Merriewether engaged in these activities, her
behavior towards Merriewether changed dramatically. Previously, Hollis had never stopped to
watch Merriewether work. After becoming aware of Merriewether’s union activities, Hollis began
to stand and watch Merriewether for lengthy periods of time. At trial, the Respondent stipulated
that it knew about Merriewether’s union activities. Tr. 205-06.
Merriewether was subpoenaed by the Union to appear as a witness at a Board hearing
regarding the representation petition. Merriewether was concerned that compliance with the
subpoena would prevent her from arriving on time for her work shift, which started at 3:30 pm.
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Therefore, she provided the subpoena to Hollis prior to the hearing. Merriewether attended the
hearing on March 6 and 7. Ann Lipsitz, the human resources manager at the Masonic facility,
also attended the hearing and observed that Merriewether was present and appeared ill during
the session on March 6. After the March 6 session adjourned at 5:16 pm, Merriewether
continued to feel unwell, but came to the Masonic plant anyway. Upon arriving, Merriewether
talked to Hollis and another supervisor about obtaining medical attention at the clinic the
Respondent made available to employees. The supervisors told Merriewether to go home for
the day and said nothing about charging her with an attendance “occurrence” for doing so. The
next morning, March 7, Merriewether obtained treatment, and then continued to the Board
hearing where she remained until she was released from her subpoena at about 5:05 pm.
Then, Merriewether drove a co-worker home, continued to her own home to change into work
clothes, and drove both herself and the co-worker to the Masonic plant. Timecard records show
that Merriewether reported for work that day at 7:31 pm.
2. Merriewether Discharged
When she arrived at the Masonic facility following the March 7 hearing, Merriewether
gave her supervisor documentation regarding the treatment she had obtained that morning.
Later the same day, Hollis issued a written attendance warning to Merriewether. The warning
stated:
ATTENDANCE COMMUNICATION RECORD
WRITTEN WARNING5
According to our records you have accumulated 6 occurrences of absence. Your
attendance record is considered unacceptable and is resulting in a written
warning. Any further absenteeism, in accordance to the attendance policy will
result in progressive discipline.
Hollis asked Merriewether to sign the written warning, but Merriewether refused, stating that she
had not incurred 6 occurrences under the attendance policy.
On March 15, Lipsitz told Merriewether that she was being terminated for accumulating a
total of 7 1/3 attendance occurrences. How this new, higher, total was arrived at is somewhat
unclear since the Respondent’s own attendance records show that Merriewether did not miss
any time subsequent to receiving the March 7 warning. When Merriewether disputed Lipsitz’s
explanation for the termination decision, Lipsitz responded that her “hands were tied” because
Merriewether was still within her 90-day probationary period. Merriewether told Lipsitz that she
was not within the 90-day probationary period because she had already received the 90-day
pay raise. Lipsitz repeated that her hands were tied. Lipsitz showed Merriewether a document
that stated Merriewether had “accumulated 7 1/3 occurrences of absence . . . resulting in
termination of employment.” Merriewether refused to sign the document. Merriewether’s
termination date was 317 days after the date when she started working as a production operator
at the Masonic facility and 130 days after the date when the Respondent made her a permanent
employee in that position.

5 This is how the printed heading read when the document was presented to Merriewether.
However, the version that was produced at trial from the Respondent’s records had the printed
word “Written” scratched out, and the handwritten word “Final” inserted in its place. GC Exh. 6.
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3. Attendance Policy
The Respondent has a written attendance policy that was in effect at the time
Merriewether was discharged. See General Counsel Exhibit Number (GC Exh.) 2. Under that
policy, employees are not discharged for absenteeism until they reach 8 occurrences within a
12-month period. The policy states that excessive absenteeism will be subject to the following
steps of progressive discipline: a verbal warning for 5 occurrences of absence; a written
warning for 6 occurrences of absence; a final written warning for 7 occurrences of absence; and
termination for 8 occurrences of absence. A full occurrence is incurred for any absence of 1 day
in duration, except that only 1 occurrence will be incurred when an employee is absent for
consecutive days due to an illness or injury. Employees incur one-third of an occurrence when
they arrive late to work or leave work early. The policy provides that employees will not incur an
occurrence for absences due to certain reasons, including compliance with subpoenas and “any
other approved leave of absence.” The attendance policy does not make any reference to
probationary or newer employees being subject to a different attendance standard, nor does it
mention terminating employees for less than 8 occurrences during their initial period of
employment.6
4. Purported Policy Regarding Probationary
Employees and Attendance
In its brief, the Respondent contends that even though the company’s written policy is
not to discharge an employee for poor attendance unless that employee accumulates 8
occurrences, it legitimately discharged Merriewether for less than 8 occurrences because she
was a probationary employee. Not only is this purported policy on probationary employees
unwritten, but the Respondent’s records are free of the types of references one reasonably
would expect to find if such a policy existed. For example, the Respondent’s records do not
designate whether an employee is probationary or not and do not generally memorialize the
change in status from probationary to non-probationary. The Respondent’s written attendance
policy makes no reference at all to a probationary period or to different attendance rules
applying during such a period. The Respondent has a 14-page manual of employee
guidelines, but that manual also makes no reference to the existence of a probationary period.

6 I reviewed Merriewether’s attendance record, GC Exh. 8, under the standards set forth in
the written attendance policy. Based on this review, I find that Merriewether had, at most, 7
legitimate “occurrences” and possibly as few as 5 at the time she was discharged.
Merriewether was charged with a 1/3 occurrence for tardiness on March 7, but on that day she
could not report to work at the start of her shift because she was at a Board hearing pursuant to
subpoena. The record does not show that Merriewether unnecessarily delayed reporting to
work once she was released to leave the hearing. Indeed, the co-worker who Merriewether
drove to work after the hearing, and who was assigned to the same shift as Merriewether, was
not charged with being tardy. The Respondent’s imposition of that 1/3 occurrence was plainly
improper.
The Respondent also charged Merriewether with a full attendance occurrence on March 6, a
day when she arrived late due to her compelled attendance at the Board hearing, and then left
due to illness after supervisors told her to do so. In addition, the Respondent charged
Merriewether with 2 occurrences for a period of illness that caused absences on 4 workdays
that straddled a weekend. Under the Respondent’s attendance policy only one occurrence is
charged for consecutive days of absence due to illness. Since Merriewether did not work
weekends, I would expect her absence of 4 consecutive workdays to be treated as a single
occurrence, but the Respondent charged her with 2 occurrences for that period.
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GC Exh. 22 (Cadence Innovation Employee Guidelines, Revised 4/1/04). The Respondent
does not notify employees when they have completed the purported probationary period. The
Respondent did not show that newly hired permanent employees were told that they were
probationary. To the contrary, the record shows that at least some employees, including
Merriewether, were not told that they were probationary at the time they became permanent
employees.
Even more telling is the fact that the Respondent’s officials were unable to provide a
clear or consistent description of the purported probation/attendance policy that supposedly
justifies Merriewether’s termination. Lipsitz initially testified that the probationary period ended
after 90 days of employment. Tr. 27. Later she modified her testimony, stating that the
probationary period ended after 90 workdays – by which she meant that weekends, holidays,
and layoffs would not be counted towards completion of probation. Tr. 59-60, 63-64.7 A
completely different description of how the probationary period worked was offered by Jane
Grewe, a senior human resources generalist with the Respondent. Grewe directly contradicted
Lipsitz’s testimony that the probationary period ended after 90 workdays. According to Grewe,
there was no official number of days after which the probationary period ended. Tr. 707. She
testified that the Respondent’s determination of whether an employee had completed the
probationary period was made on a far more subjective basis than the one described by Lipsitz.
Grewe said the determination takes into account “days worked, number of occurrences, input
from the supervisor, days employed, workforce needs.” She stated that there was no precise
policy regarding how these factors were to be considered or requiring that the factors be applied
in a uniform way. In fact, Grewe conceded that she “ha[d] no idea” how the Respondent’s
various supervisors and human resources staffers applied the factors. Tr. 708. At any rate,
since Grewe had stopped working at the Masonic location in December 2006, she was not
present at the time Merriewether was terminated in March 2007 and admitted that she did not
know on what basis Masonic’s human resources staff had designated Merriewether as a
probationary employee. Tr. 738. In light of the evidence, I am astonished by the Respondent’s
attempt to characterize its probationary policy as “unwritten, but universally known and
consistently enforced,” Brief of Respondent at 8, and I reject that characterization. I note
moreover, that the Respondent failed to present the testimony of the human resources staffer –
identified in the record as “Kristyn” -- who made the decision to designate Merriewether as a
probationary employee at the time of the discharge. 8 The Respondent did not explain why
Kristyn was not called.

7 Based on her demeanor and testimony, I found Lipsitz a less than credible witness
regarding most disputed matters. She appeared unusually nervous while testifying and on more
than one occasion I observed her looking around the hearing room in what appeared to be a
search for assistance answering questions. This behavior was commented upon by Counsel for
the General Counsel. Tr. 88, 139-40. In one instance, Counsel for the General Counsel stated
on the record that an individual attending the hearing had prompted Lipsitz, something that I did
not observe, but which neither Lipsitz nor counsel for the Respondent denied. Tr. 88. I also
had the impression that Lipsitz was overly anxious to deny facts favorable to the General
Counsel. For example, when asked whether she had seen Merriewether at the Board hearing
on March 6 and 7, she responded: “I was relatively new at the company. I did not know all the
employees by name at that point so I just can’t tell you.” Tr. 46-47. Later, however, Lipsitz
stated that she knew who Merriewether was at the time of the March hearing and even recalled
noticing that Merriewether was sitting behind her and was sick. Tr. 151.
8 Lipsitz testified that Kristyn was the one who informed her that Merriewether was
probationary. Lipsitz stated that she deferred to Kristyn’s determination regarding this. Tr. 52.
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As stated above, the Respondent did not generally designate the probationary or
nonprobationary status of employees in its records. To the extent that there is documentary
evidence regarding this, that evidence suggests that any probationary period ended 90 calendar
days after an employee was hired. The Respondent’s records for attendance-based
terminations include a space to enter the employee’s “Probation Date.” In the overwhelming
majority of examples in the record, the Respondent left that space blank, but four such
documents state a probation date. In three cases the stated probation date is 90 calendar days
after the individual was hired and in the fourth case the probation date is a few days short of 90
calendar days.9 Grewe was directly questioned about this and could not explain how the
“probation date” notation could be squared with her testimony that probation did not end after 90
calendar days or any other fixed period of time. Tr. 735-37.
The evidence regarding the treatment of other employees does not substantiate the
Respondent’s contention that Merriewether was still a probationary employee when she was
terminated on March 15. The Respondent did not identify a single employee, other than
Merriewether, who it had employed for more than 90 calendar days and yet discharged in 2007
for being a probationary employee with fewer than 8 occurrences. Nor did it identify a single
such employee who it discharged in 2006 under such circumstances. In order to identify any
employees who were discharged for poor attendance based on fewer than 8 occurrences after
more than 90 calendar days of employment, the Respondent has to reach back all the way to
January 2005 – a time when Venture Industries, not the Respondent, was operating the
Masonic facility. See supra footnote 2. Moreover, Lipsitz, who terminated Merriewether, did not
begin working at the Masonic facility until almost 2 years after those terminations, and she was
not shown to have ever terminated anyone other than Merriewether for fewer than 8
occurrences. Even in the temporally remote cases identified by the Respondent, none of the
employees terminated had been working for the Respondent as long as Merriewether when
terminated.
The record also showed that during the period it was operating the Masonic facility the
Respondent permitted other employees to continue working despite having accumulated more
occurrences than Merriewether. Indeed, during 2006 and 2007, the Respondent gave written
warnings, not termination notices, to 16 employees who had each accumulated more than 8
occurrences. GC Exhs. 35 to 50. Also during that period, the Respondent waited to terminate
nine employees until they accumulated more than 8 occurrences. GC Exh. 9. One of those
individuals was permitted to keep working until she reached 15 1/3 occurrences -- over twice the
number of occurrences the Respondent permitted Merriewether before firing her.
The Respondent contends that it calculates an employee’s total number of occurrences
once monthly and at that time decides on discipline. Brief of the Respondent at 7; Tr. 723-24.
According to the Respondent, this explains why so many employees were not terminated until
after they had accumulated not only more than the 7 1/3 occurrences it says Merriewether had,
but in excess of the 8 occurrences that should result in termination under the attendance policy.
At best this contention is speculative and at worst it provides evidence of discrimination against
Merriewether. It is speculative because the Respondent did not introduce attendance records
or testimony showing that any of the comparator employees had, in fact, accumulated the
excess occurrences during the same month that they reached the 8-occurrence benchmark. It
suggests discrimination because the record shows that, in Merriewether’s case, the Respondent
departed from its practice of calculating an employee’s occurrence total for purposes of

9 General Counsel Exhibit Number (GC Exh.) 31 (termination reports for W. Crosby, R.
Lewis, K. May, Jr., and A. Ruffin).
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attendance-based discipline on a monthly basis. On March 7, the Respondent issued a
warning to Merriewether for accumulating 6 occurrences, and then it terminated her on March
15 based on the additional occurrences it says she incurred. The Respondent does not explain
why it calculated Merriewether’s occurrence on two occasions in March, barely a week apart,
given its practice of performing such calculations for other employees on a monthly basis.
C. Thomas
1. Employment and Union Activities
Thomas began working at the Masonic facility in May or June of 2004 and from
November 2004 until his termination on May 2, 2007, his position was hi-lo driver. The hi-lo is a
type of forklift used to transport parts and materials around the Masonic plant. Although
Thomas was assigned to the Masonic plant’s molding department, his duties as a hi-lo driver
required him to move material to and from other departments at the plant.
Thomas was an active and open supporter of the Union. He passed out union
authorization cards to employees and collected completed cards from them. He wore union
buttons, hats, and shirts, and passed out union pamphlets. Lipsitz testified that she knew
Thomas was an active union supporter. Thomas’ supervisors, Ernie Haddix and Steve Las,
both made comments to Thomas recognizing his prounion stance. Shortly after her March 21
start date, Mort began receiving complaints from Las, Haddix, and Rob Paquin (operational
manager at Masonic facility), that Thomas was not keeping up with his work duties because of
the excessive amount of time he spent out of his work area, talking to other employees.
2. Friction Between Thomas and Clyburn
a. Thomas and Clyburn Introduced
As discussed above, the Respondent hired an outside consultant to help campaign
against the Union. Clyburn, one of the consultant’s employees, came to the Masonic facility on
a daily basis, and would speak with employees informally and also hold group meetings at
which he discussed negative aspects of unionization and played antiunion video presentations.
The record indicates that friction began to develop between Thomas and Clyburn. At some
point Thomas approached Mort and told her that he wanted to leave the facility because he did
not know what Clyburn was doing there and had concerns that Clyburn was involved with a
bomb threat received several months earlier. Mort had previously introduced Clyburn to
employees at a meeting attended by Thomas. Nevertheless, Mort responded to Thomas’
concerns by walking him over to Clyburn and introducing the two men on an individual basis.
In March or early April 2007, Clyburn was at the Masonic plant talking with a hi-lo driver
named Thaddeus Fielder. Thomas attempted to intervene in the conversation and he and
Clyburn traded insults. Clyburn stated that the conversation was only for “tall” men – a
reference to the fact that Clyburn is considerably taller than Thomas. Thomas responded by
commenting that Clyburn’s clothes and hairstyle made him look “gay.”
Clyburn and Thomas also had an exchange during an April 10 meeting that Clyburn held
with a group of approximately 20 to 25 employees. At that meeting, Clyburn warned
employees that if they decided to unionize the Union might initiate a strike. Thomas countered
that there would only be a strike if the employees themselves voted to authorize it. Clyburn
stated that if employees went on strike, the Respondent would hire people to do their jobs until
the strike ended. Thomas then asked, loudly enough for the other employees in attendance to
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hear, "Mr. Clyburn, isn't it a fact that people that try to cross picket lines in [an]
environment like this get their heads cracked?"10
b. Thomas Counseled After Interrupting His Own Work
To Tell Other Employees Not To Talk To Clyburn
On April 11, Clyburn was talking with two employees in the IP line department.
Thomas drove up to them on his hi-lo. As Thomas approached, Clyburn walked away.
Thomas spoke with the two employees for 2 or 3 minutes. Thomas told the employees
that when Clyburn tried to talk to them the best thing to do was to ignore Clyburn and talk
among themselves. Thomas said that “If you all talk to each other and don’t respond to
him, he can’t do nothing but leave,” because “nobody’s going to talk to their self.” Thomas
conceded that he was not engaged in any work activities during the time he was
dispensing this advice. The two co-workers continued working while Thomas spoke to
them. The conversation was cut short by Thomas’ supervisors – Las and Haddix – who
told Thomas that he had to leave the area and should take care of his own business on his
own time.
Later that day, Thomas was called to a meeting with Las and Kal Marogi
(supervisor, IP line department). Marogi stated that “we don’t want you over [at the IP
line], talking to them anymore, because we don’t want the line to stop.” Thomas
responded that in the past he had “stood at the IP line” and talked to employees there “for
hours and hours,” and “no one has ever said anything.” Marogi said: “Well, now we’re
getting tight. We don’t want you over there.” Marogi presented Thomas with a document
about the incident, which he described to Thomas as an oral write-up.
The record establishes that the Respondent permits employees to talk with one
another while all the employees involved continue to work. However, the record also
shows that the Respondent has an established rule prohibiting employees who are not
engaged in work activities from remaining on the work floor to talk to other employees who
are working. When employees are taking a break from work, they are required to go to a
break area. Since at least April 1, 2004, the Respondent’s written employee guidelines
have stated that “loitering” and “wasting time” were unacceptable conduct. GC Exh. 22.
Two hi-lo drivers – Fielder and Shawn Schmidt – testified that the Respondent did not
permit hi-lo drivers who were taking a break from work to remain in work areas talking to
employees who were working. Tr. 194-95, 276-78, 282-83.11 Thomas conceded that the
Respondent had a rule against employees stopping work to talk to other employees who
were working, but he asserted that this rule applied to other hi-lo drivers, not to him. Tr.
353-54. The evidence showed that the Respondent had disciplined employees for
engaging in non-work related conversations in work areas of the facility. One employee
was given a warning in November 2006 after she left her work station without permission
to attend to non-work matters. GC Exh. 52. Two other employees received warnings in
2006 for talking on their cell phones while in work areas. GC Exh. 51 and 53.

10 At trial, Thomas admitted that he said this. Tr. 313. Witnesses Clyburn and Karayan
Crigler also testified that Thomas said something along these lines. Tr. 259, 761-62.
11 Fielder and Schmidt were both witnesses for the General Counsel, and Fielder
described himself and Thomas as good friend. Tr. 268.
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c. Alleged Threats of April 13
On April 13, Thomas interrupted Clyburn’s conversations with employees on three
more occasions. In the first instance, Thomas saw Clyburn talking to an employee named
Veronica near the Masonic facility’s break area. Thomas walked up and told Veronica to
ask Clyburn “how much is the company paying them to be here."
On the second occasion, Clyburn was in the molding department talking to a hi-lo
driver named Shawn Schmidt. Thomas drove up on a hi-lo, stopped about two feet from
Clyburn, and began waving a document with information about Clyburn’s employer.
Thomas urged Schmidt to ask Clyburn how much money he was making. Schmidt
indicated to Thomas that he did not care how much Clyburn was making. Thomas said,
“Ask him, Shawn. Ask him, Shawn.” Schmidt asked, and Clyburn responded that he
“made a lot.” Then Clyburn and Thomas began talking back and forth. A couple of
minutes after Thomas had interrupted the conversation, Schmidt drove away while
Thomas and Clyburn continued talking to each other. As Thomas started to leave, he told
Clyburn that he would crack his head.
Later on April 13, within minutes of the encounter discussed directly above, Clyburn
and another consultant, Jason Schaeffer, were talking to Cynthia Baker – a production
worker in the molding department. At the time Baker was working at a press. Thomas
drove up on a hi-lo and told Clyburn and Schaeffer, “Leave her alone, she’s busy.”
Thomas also told them, “She has a mind of her own.” In addition, Thomas spoke to Baker,
warning that if she “sent out any bad parts” because she was distracted by her
conversation with Clyburn, she would be terminated. At some point, Schaeffer left and
Baker turned back to her own work. Clyburn and Thomas remained to continue their
conversation. Baker testified that this conversation was a “little intense,” but that after she
turned away the noise from the press prevented her from hearing what was being said.12
It was not long after Baker resumed her work that Thomas started to drive away. Clyburn,
who was on foot, offered to pause in order to allow Thomas to drive past. Thomas
responded: “No, go ahead.” "I'll get you outside. I'm not going to hit you now. I'll wait till
you get outside." 13 Clyburn walked away without responding.
Within minutes of the April 13 incident in the molding department, Clyburn
contacted the police and reported that Thomas had threatened him. Clyburn testified that
he decided to make the report so that there would be a record in the event that he and
Thomas crossed paths outside of work and “something happened to me or if I had to

12 A supervisor referred to in the record only by the name “Vermal,” was in the general
area at the time of this exchange between Thomas and Clyburn. However, Vermal was
not at the specific press where Baker, Thomas and Clyburn were, and was not as close to
the speakers as Baker was.
13 I credit Clyburn’s account that Thomas threatened to “crack” his “head” and “get” him
“outside.” Thomas denied the threats. In fact, contrary to the testimonies of Schmidt and
Baker, as well as Clyburn, Thomas claimed that he had not said anything to Clyburn that day.
Based on their respective demeanors and testimonies, and the record as a whole, I consider
Clyburn far more reliable than Thomas. My credibility determinations regarding Clyburn and
Thomas are discussed more fully later in this decision. In reaching the decision to credit
Clyburn, I took into account that neither Schmidt nor Baker heard the threats he reported.
However, this is of limited significance since both Schmidt and Baker testified that they had not
heard everything that was said between Thomas and Clyburn during the exchanges in question.
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defend myself.” Police officers came to the Masonic facility and interviewed Thomas
about the incident. The officers searched Thomas’ jacket. They asked Thomas whether
he had threatened Clyburn and he answered “no.” The police told Thomas not to talk to
Clyburn. They also told Thomas that they would advise the Respondent not to permit
Clyburn to talk to Thomas.
4. The Respondent’s Investigation
Lipsitz was the company official responsible for conducting the investigation of
Clyburn’s allegation that Thomas had threatened him. She found out about the allegation
directly from Clyburn, who came to her office and stated that he had called police officers
to the facility in order to report threats made by Thomas. She testified that Clyburn
appeared distressed. Lipsitz asked Clyburn to send her an e-mail describing what had
happened.
On April 13, Lipsitz, Mort, Rob Paquin (operational manager, Masonic Plant), and
Glenn Tosta (molding deparment supervisor) met with Thomas immediately after the
police finished interviewing him. Lipsitz told Thomas that there was an allegation that he
had made a threat against another employee. Thomas said that he already knew Clyburn
was the one making the allegation. Lipsitz informed Thomas that he was suspended with
pay pending an investigation and asked whether he had anything to say regarding
Clyburn’s allegations. Thomas’ response was that he had not said a word to Clyburn that
day. At trial he confirmed that this had been his response, and again stated that he had
not said a word to Clyburn on April 13. Tr. 372.
Mort and Lipsitz also met with Clyburn on April 13. Clyburn told them that Thomas
threatened to physically harm him. Clyburn stated that Thomas had said something about
splitting a head open and getting him outside of work. Mort met with Clyburn formally
about the alleged threat once more and also discussed the matter with him informally
during multiple meetings around the plant. Clyburn’s account of the incident remained
generally consistent through these meetings. Clyburn also set forth his account of what
happened on April 13 in an email to Lipsitz. Clyburn wrote that he was having a
conversation with Schmidt when Thomas interfered. Then, “[w]hile [Thomas] backed away
on his hi-lo he told me that he would ‘crack my head.’” Clyburn said that the incident near
Baker’s press took place about 10 minutes later. He stated that he was having a
conversation with Baker, when Thomas interrupted and eventually stepped between them.
Regarding the alleged threat, Clyburn wrote: “Thomas hop[p]ed back on his hi-lo, I started
to walk behind Mr. Thomas but told him to go ahead. Mr. Thomas replied ‘naw you go,
don’t worry about me hitting you in here imma wait till we get outside.’”
Lipsitz also interviewed Schmidt and Baker. Both of these witnesses contradicted
Thomas’ claim that he had not even talked with Clyburn that day. According to Schmidt
and Baker, Thomas and Clyburn did exchange words. Schmidt did not hear Thomas make
any threats, but he was not present for the entire exchange and it is not clear that he could
hear everything that was said even while he was present. Similarly, Baker did not hear
Thomas make any threats, but she also did not hear everything that was said between
Thomas and Clyburn during the conversation at issue. Lipsitz did not interview Schaeffer,
who was present at the start of one of the incidents on April 13. Nor did she interview
Vermal who was in the general vicinity when the exchange involving Baker took place, but
was not actually at the press where the incident occurred. Baker had been in closer
proximity to the speakers than was Vermal.

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As part of the investigation, Lipsitz also interviewed two employees regarding the
April 10 group meeting at which Thomas asked Clyburn whether it was true that people
who crossed picket lines would have their “heads cracked.” The two employees both told
Lipsitz that they had heard Thomas say something along those lines, although each
remembered Thomas threatening to commit the violence himself.
On April 16 – 3 days after Thomas was suspended pending an investigation of the
allegations that he had threatened Clyburn -- Thomas called an employee telephone
hotline service and asserted that Clyburn had threatened him. According to the report
generated by the third-party that operated the hotline service, Thomas stated that on April
6 he was being harassed by Clyburn and did not know who Clyburn was. Thomas stated
that he complained about this to Mort, but that she did “nothing.” According to the hotline
report, Thomas also stated that on April 10, Clyburn had said that he could “take him on”
and that if they met outside of work Thomas would “probably never return.” Thomas’
hotline call was the only complaint that Mort received from an employee about Clyburn’s
behavior during the entire union campaign.
On April 17, Lipsitz and Mort had a second interview with Thomas regarding
Clyburn’s allegations. Before coming in for the interview, Thomas stopped outside the
plant and distributed flyers to employees who were entering. The flyer stated, inter alia,
that Thomas had been “terminated” based on “a false accusation by a [Russ Brown
Associates] employee.”14
Later that day, at the April 17 interview, Lipsitz and Mort asked Thomas about the
alleged threats of April 13. They also asked him about his comment/question at the April
10 group meeting regarding people getting their heads cracked, as well as about the flyer
he had been distributing and his hotline report.15 Regarding the events of April 13,
Thomas vacillated between saying that he had not talked to Clyburn at all and saying that
they had not only spoken, but engaged in a loud argument. Regarding the April 10 group
meeting, Thomas denied making the comment/question about people getting their heads
cracked for crossing picket lines. When asked about distributing the flyer earlier that day
– something Lipsitz had witnessed him doing -- Thomas denied that he had distributed a
flyer. Either Mort or Lipsitz told Thomas that the statement in the flyer that he was
terminated was false since he was suspended with pay pending the outcome of the
investigation. Then Thomas said that it was true that he had been distributing a flyer, but
that it was not the one stating that he had been discharged. Lipsitz and Mort also asked
Thomas about his hotline report, and in particular his statement that Mort had done
“nothing” about his complaint. As discussed above, when Thomas told Mort that he was
uncomfortable because he did not know Clyburn, Mort had led Thomas over to Clyburn
and introduced the two. When confronted regarding the statement that Mort had done
“nothing,” Thomas replied that the operator taking his report misquoted him. Mort testified
that, based on the interviews with Thomas, she concluded that he was not being truthful

14 I credit Lipsitz’s testimony that she observed Thomas distributing this flyer. Thomas
denied that he passed out these flyers, but his account was shifting. At various times he stated
both that he had been distributing a different flyer that day, and that he had not distributed any
flyer at all. Moreover, for reasons discussed below I consider Thomas a particularly unreliable
witness. Thus, although I found Lipsitz less than fully credible, see footnote 7, supra, I consider
her testimony generally more credible than that of Thomas and reliable on this subject.
15 My account of this meeting is based largely on the testimony of Mort, who I considered a
very credible witness based on her demeanor and testimony, and the record as a whole.
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and that, after completing the April 17 interview, she was leaning heavily towards crediting
Clyburn regarding the events of April 13.
At the recommendation of legal counsel, the Respondent requested a criminal
background check for Thomas as part of the investigation of Clyburn’s allegation. Mort
credibly testified that this was done to determine if there was anything in Thomas’
background suggesting that he had a propensity for violence consistent with the threat
Clyburn had reported. She stated that by the time she requested the background check,
the Respondent “felt strongly” that “termination was justified,” but because of the ongoing
union campaign, and the likelihood of an unfair labor practices charge, the Respondent
wanted to have “all our i's dotted and our t's crossed.” The background check revealed
that Thomas had been charged with aggravated assault and that, under the terms of a
plea agreement, convicted of misdemeanor assault in 2001. The Respondent also
reviewed Thomas’ applications, and discovered that on both his 2004 application and his
2005 application, Thomas falsely stated that he had never been convicted of a
misdemeanor.16
5. Respondent Terminates Thomas
The Respondent terminated Thomas’ employment effective May 2, 2007. Mort was
the official who made the termination decision. The reason Mort gave for her decision was
that Thomas made a threat of violence in the workplace and had falsified his application.
According to Mort, she credited Clyburn’s allegations over Thomas’ denials primarily
because Clyburn’s account was consistent over multiple interviews while Thomas’ account
was inconsistent. Indeed Mort testified that she was “alarmed” at the way Thomas
“twisted” things between interviews and even within a single interview. Although Mort
herself did not interview other witnesses to the alleged threat, her understanding was that
Lipsitz had interviewed the witnesses and that their accounts were more consistent with
Clyburn’s than with Thomas’. Mort had not received a single complaint about Clyburn’s
conduct in the plant aside from the one made by Thomas.
Mort and Lipsitz each testified that Thomas’ union activity was not a factor in the
decision to terminate him, but that they felt that, in light of such activity, the Respondent
had to be particularly cautious before disciplining Thomas. Before finalizing the decision
to terminate Thomas, Mort consulted with the Respondent’s senior vice-president of
human resources (Ronda Coogan), the Respondent’s senior vice-president of operations
(Eric White), and legal counsel (Craig Stanley), as well as with Lipsitz. None of those
individuals disagreed with Mort’s decision to terminate Thomas.
The record shows that the Respondent has written policies prohibiting employees
from threatening co-workers and from falsifying applications. The Respondent’s safety
handbook states that it has a “zero-tolerance policy towards workplace violence,” and that
“[a]ny such act or threat may lead to discipline, up to and including termination.” The
Respondent’s employee guidelines state that “falsifying records” is “unacceptable and will

16 The record contains two employment applications completed by Thomas. The first one,
dated May 26, 2004, was submitted by Thomas at the time of his initial hiring by Venture. The
second one, dated May 3, 2005, was completed by Thomas at the time the Respondent
acquired the Masonic facility from Venture. Among the questions that both applications ask is,
“Have you ever been convicted of a criminal misdemeanor or felony?” On both applications
Thomas answered this question “no.”
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not be tolerated by the company.” In addition, both applications completed by Thomas
state that “any misrepresentation or concealment of information, regardless of when it is
discovered, will be sufficient grounds for dismissal from employment.”
The record shows that in 2006 and 2007 the Respondent terminated a number of
employers other than Thomas for making threats or engaging in disruptive arguments. In
August 2006, the Respondent terminated an employee for threatening a co-worker. Employer’s
Exhibit Number (E Exh.) 16. The Respondent terminated an employee in March 2007, for
“threatening another employee.” E Exh. 15. In May 2007, the Respondent discharged an
employee for engaging in a disruptive argument with another employee in violation of the
Respondent’s prohibition on “discrimination, harassment, intimidation, teasing, fighting, or use of
profanity and/or ‘fighting words.’” GC Exh. 21. This employee had previously been suspended
for “fighting” with another employee, but the record does not reveal the details of the prior fight,
including whether it was physical or verbal in nature. In another instance the Respondent
suspended, but did not terminate, two employees who had an argument that did not include any
threats of violence. GC 19; GC 20; Tr. 149.
The record also showed that the Respondent had terminated other employees for
including false information on their applications. In 2006, the Respondent terminated
approximately 20 employees at another facility after background checks revealed that they had
lied about their criminal backgrounds when completing their applications. Tr. 601-02. The
Respondent has also terminated three employees at the Masonic facility because they made
false statements on their applications. E Exhs. 10, 11, and 13; Tr. 741. Coogan, the
Respondent’s vice-president of human resources gave uncontradicted testimony that the
Respondent disqualifies all applicants who have been convicted of misdemeanors involving
violence.
6. Credibility of Clyburn and Thomas
Neither Clyburn nor Thomas was an excellent witness at trial, but I found Clyburn
by far the more credible of the two. In general, Clyburn appeared to be a forthcoming
witness trying his best to accurately recount events of a year earlier. I did not have the
impression that he was attempting to slant or exaggerate his testimony to favor the
Respondent. Although Clyburn’s memory regarding details failed him at times, he
demonstrated a willingness to admit such failures instead of becoming defensive or
evasive. In some instances, the Respondent’s counsel attempted to suggest answers
when Clyburn could not remember something, but Clyburn generally resisted having words
put in his mouth. See, e.g., Tr. 757. I also note that it is uncontroverted that during a
group meeting Thomas had commented to Clyburn that people who cross picket lines get
their “heads cracked.” Although this was a different incident than the one in which
Thomas threatened to “crack” Clyburn’s “head,” the similarity of the formulations lends
minimal additional credence to Clyburn’s account of the threat. In addition, the evidence
showed that Clyburn had been involved as a consultant in approximately 30 union
campaigns, but never made a police report or accusation about any employee other than
Thomas. This undercuts any suggestion that making such accusations was simply one of
Clyburn’s standard tactics in fighting unions. Moreover, no witness, other than Thomas,
claimed that Clyburn had behaved in anything other than an appropriate manner. Indeed
Baker, an employee who testified for the General Counsel, stated that Clyburn conducted
himself in a professional manner.
Thomas’ testimony, on the other hand, was among the most internally inconsistent
and evasive – indeed dizzying -- I have ever had presented to me. The inconsistencies
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and reversals are too numerous to recount, but I discuss a portion to give the flavor of the
testimony. In both his sworn testimony and during the Respondent’s investigation,
Thomas denied that he had said a word to Clyburn on the day that he was alleged to have
made the threats. After even Schmidt and Baker -- witnesses for the General Counsel –
testified that Thomas and Clyburn had been talking back and forth that day, Thomas
returned to the stand and stated that not saying “a word” did not mean not saying
anything, but rather that he had not made a threat. Tr. 789. Elsewhere he claimed that
he and Clyburn had not had a conversation on April 13. This, too, was contrary to the
testimony of all the other witnesses who testified about the incident in question. At one
point Thomas admitted that he and Clyburn spoke to each other, but claimed that it was
not a “conversation” because, while Clyburn was talking to him, he had only responded
“yeah,” “uh-huh” or “whatever.” Tr. 373. Thomas also testified that this exchange of
words did not constitute “talking to” Clyburn. Id.
When asked why he stated on his 2004 application that he had never been
convicted of a misdemeanor, Thomas answered that he was “quite sure” the application
had only asked about felony convictions. Tr. 345-46. When confronted with his
completed 2004 application, which explicitly asked about misdemeanor convictions, he
tried another explanation, stating that he had not been convicted of a misdemeanor
because he had not been to prison and someone was not convicted unless they had been
incarcerated. Tr. 348, 351-52.
His testimony was also shifting regarding the question of the hotline complaint he
made after being suspended. First he affirmed that the written hotline report was an
accurate statement. Tr. 333-34. As discussed above, in the hotline complaint he stated
that Mort had done nothing when he told her that he felt threatened and harassed by
Clyburn. When asked about that portion of his hotline complaint, Thomas reversed field
and stated that he had not reported the threats and harassment to Mort at all, but rather to
Las and Haddix. Tr. 366-67. When asked about the portion of his hotline report in which
he stated that Clyburn had accused him of threatening to use a gun, Thomas stated that
the portion of the written report misrepresented what he had said. Tr. 392-93. In the
hotline report, Thomas stated that Clyburn had warned that if they met outside of work,
Thomas would never return. When Thomas was asked why he waited until after his own
suspension to make the hotline report regarding Clyburn’s supposed threat, Thomas
answered that Clyburn had not made a threat “so it was nothing for me to report.” Tr. 388-
89. This contention is contrary not only to his hotline report, in which Thomas both stated
that Clyburn made threats and reported plainly threatening statements by Clyburn, but
also to his own testimony that Clyburn had threatened him. Tr. 390.
Thomas’ testimony was also shifting on the subject of the Respondent’s tolerance
for him talking to other employees while he was not working. Thomas acknowledged that
the Respondent had a rule prohibiting other employees who were not working from talking
to other employees who were working. At first Thomas claimed that this rule applied to
other employees, but not to him. Tr. 353-54. He recounted telling a supervisor that he
had “stood” at the IP line and talked to employees for “hours and hours” and that no one
had said anything to him about it. Tr. 338. Then he denied that he ever “stood around for
numerous amount of time just talking to an employee while they were working.” Tr. 355.
When asked whether it was his “habit” to talk to other employees when he himself was not
working, he first answered “I wouldn’t call it a habit if it’s something that the company
allows you to do.” Tr.356. Then he denied that it was a habit because “A habit is
something . . . you can’t break.” Id. Then he asserted that every employee at the
Masonic facility shared the habit of stopping work to talk to other employees who were
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working, Tr. 356-57, thus undercutting his initial assertion that the rule prohibiting such
behavior applied to other employees.
Thomas also conveyed an unnervingly grandiose view of his role at the Masonic facility.
He stated that he had “a lot of say so in Cadence’s plant,” “[m]ore say so than probably [the
Respondent’s] own management did.” Tr. 383-84. He repeatedly referred to himself in the
third person. See, e.g., Tr. 357 (No official “ever said anything to Shonttaye about conversating
with anyone throughout that whole plant.”), Tr. 343 (“Here is Shonttaye.”), Tr. 358 (“[o]ther
employees would see Shonttaye”). Thomas’ self-serving testimony that he was so important as
to be completely above work rules that applied to other employees was not corroborated, was
contradicted to some extent by his own testimony, and based on my review of the record as
whole, was not credible.
D. Alleged Threat by Dmytryszyn to DeGrandchamp
The complaint also alleges a violation at the Respondent’s Groesbeck plant. According
to the complaint, on about February 12, 2007, Donald Dmytryszyn – general manager of the
Groesbeck plant – threatened to terminate employees because of their union activities.
Dmytryszyn has been the general manager of the Groesbeck plant since approximately 2003.
Dmytryszyn testified that although he had been a member of the Union years ago, he opposed
the union campaign at the Groesbeck plant.
To support the allegation that Dmytryszyn made an unlawful threat, the General Counsel
relies on the testimony of employee Beverly DeGrandchamp. DeGrandchamp has worked at
the Groesbeck plant since April 2001, and at the time of the events in question held the position
of operator/floor support. Dmytryszyn and DeGrandchamp know one another not only from the
Groesbeck plant, but also from having worked together at another company approximately 18
years earlier. DeGrandchamp was an open supporter of the Union who attended union
meetings and wore pro-union buttons at work during the campaign. Dmytryszyn testified that he
knew that DeGrandchamp supported the Union.
DeGrandchamp testified that during the campaign, Dmytryszyn “harassed” her “every
day” about wearing union buttons. Regarding the one unlawful statement alleged in the
complaint, DeGrandchamp stated that it occurred on February 12, 2007,17 when she was at a
press operated by an employee named Mary Vanidour. DeGrandchamp testified that she had
come there to inform Vanidour that certain components were unavailable. While
DeGrandchamp was at Vanidour’s press, Terry Robertson,18 an employee from another
department, passed by and DeGrandchamp asked him about the weather. Robertson stopped
to answer. At that moment, Dmytryszyn saw the three employees. According to
DeGrandchamp, Dmytryszyn “threw his hands up in the air,” then approached and asked “are
you talking about union business.” DeGrandchamp testified that she answered “no,” and said
that she was informing Vanidour about the lack of components. Then Robertson started off in
one direction, and DeGrandchamp and Dmytryszyn started in another direction. According to
DeGrandchamp as they began to walk away, Dmytryszyn said “Well who can I get rid of, you,
him, or her?” DeGrandchamp testified that she just kept walking away without answering
Dmytryszyn. DeGrandchamp stated that Robertson asked her, “Did he just say what I thought

17 According to DeGrandchamp, this was before the Union filed its representation petition,
but after the start of the union campaign and her own display of prounion sentiment.
18 DeGrandchamp testified that she believes this individual’s last name was “Richardson,”
but Dmytryszyn stated with more confidence that the last name “Robertson.”
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he said?” and DeGrandchamp answered, “Yes, he did.”
DeGrandchamp also testified about a second threat by Dmytryszyn. This threat is not
alleged in the complaint and DeGrandchamp could not say when it occurred. At any rate,
DeGrandchamp stated that she was walking in the plant when Dmytryszyn said “I’m going to get
rid of you.” According to DeGrandchamp she said “Go ahead and fire me,” and Dmytryszyn
responded, “No I’m not going to fire you; I’m going to send you down to Chesterfield and you
can be union steward down there.”19 DeGrandchamp stated that in the years she had worked
with him, she had never known Dmytryszyn to discipline anyone for union activity, but she
stated that it would not surprise her if he did so.
The Respondent called Dmytryszyn as a witness. He denied that he had threatened to
terminate any employees based on their support for a union. He stated that he had never
disciplined anyone because of their union support and that during the course of the union
campaign he did not discharge any employees who happened to be union supporters. He also
denied that he ever: criticized DeGrandchamp for wearing a union button; asked employees if
they were talking about the Union or union business; threatened to get rid of any known union
supporters; or threatened to transfer any employee to Chesterfield so that they could be union
steward there. According to Dmytryszyn, he not only did not comment about DeGrandchamp’s
buttons every day, but did not even see her on a daily basis. He stated that he did not know
anything about the accusation regarding the February 12 threat until he received the unfair labor
practices charge in May 2007.
As presented, the factual issue here comes down to a credibility determination between
DeGrandchamp and Dmytryszyn. It would have been helpful to have the testimony of Vanidour
and Robertson regarding the threat that DeGrandchamp says those co-workers witnessed on
February 12, but no party chose to call those individuals as witnesses or explain the failure to do
so. After considering the respective demeanors and testimonies of DeGrandchamp and
Dmytryszyn, and the record as a whole, I find that Dmytryszyn’s denials are at least as credible
as DeGrandchamp’s allegations. It is true that DeGrandchamp’s testimony had the virtue of
being more detailed than Dmytryszyn’s, but then again Dmytryszyn could not be expected to
give specifics about a conversation that he says did not occur. Moreover, I considered some
elements of DeGrandchamp’s testimony implausible. She stated that Dmytryszyn harassed her
every day about wearing union buttons. It is somewhat implausible that the manager of a plant
with over 200 employees would target a particular employee for daily harassment simply
because that employee was wearing a union button, something that many of the Respondent’s
other employees were also doing. Moreover, if Dmytryszyn’s harassment of DeGrandchamp
was so unrelenting, I would expect that the relevant charge, which was filed towards the end of
the Union campaign, would have alleged more than a single unlawful statement by Dmytryszyn.
However, the portion of the charge relating to Dmytryszyn mentions only a single, 3-month-old,
allegation. In addition, neither DeGrandchamp nor the Union explains why the charge allegation
regarding the February 12 threat was not made until May 24.
For the reasons discussed above, I conclude that the General Counsel has failed to
carry its burden of showing that Dmytryszyn more likely than not made the February 12
statement alleged to be an unlawful threat.

19 Chesterfield is a unionized facility operated by the Respondent.
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E. Complaint Allegations
The complaint alleges that the Respondent violated section 8(a)(3) and (1) of the Act by
discriminating against employees because of their union and concerted activities: on about
March 15, 2007, when it discharged Merriewether; on about April 11, 2007, when it issued a
written counseling warning to Thomas; on about April 13, 2007, when it suspended Thomas;
and, on about May 2, 2007, when it discharged Thomas. The complaint also alleges that the
Respondent violated section 8(a)(1) on about February 12, 2007, when Dmytryszyn threatened
employees with discharge because of their union activities.
III. Analysis and Discussion
A. Section 8(a)(3) and (1)
1. Merriewether
The General Counsel argues that the Respondent unlawfully discharged Merriewether
on March 15, 2007, because she was an open and active union supporter. The Respondent
counters that it terminated Merriewether because of poor attendance. In Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393 (1983), the Board set forth the
standards for determining whether an employer has discriminated against an employee on the
basis of union or other protected activity in violation of Section 8(a)(3) and (1). Under the Wright
Line standards, the General Counsel bears the initial burden of showing that the Respondent’s
actions were motivated, at least in part, by anti-union considerations. The General Counsel
may meet this burden by showing that: (1) the employee engaged in union or other protected
activity, (2) the employer knew of such activities, and (3) the employer harbored animosity
towards the Union or union activity. Intermet Stevensville, 350 NLRB No. 93, slip op. at 5
(2007); Senior Citizens Coordinating Council, 330 NLRB 1100, 1105 (2000); Regal Recycling,
Inc., 329 NLRB 355, 356 (1999). If the General Counsel establishes discriminatory motive, the
burden shifts to the employer to demonstrate that it would have taken the same action absent
the protected conduct. Intermet Stevensville, supra; Senior Citizens, supra.
The General Counsel has met its initial burden with respect to Merriewether. The
evidence shows that Merriewether engaged in an array of prounion activities. These included
wearing union buttons, distributing union buttons to other employees, collecting union
authorization cards, and discussing the union with other employees during breaks. As
discussed above, the Respondent stipulates, and the record shows, that the company had
knowledge of Merriewether’s union support and activities. The evidence also establishes that
the Respondent harbored antiunion animus. Mort testified that the Respondent opposed
unionization at the Masonic facility, and the record shows that it hired an outside consultant to
disseminate antiunion information to employees.
The Respondent’s officials began treating Merriewether differently when they discovered
that she was engaged in activities on behalf of the Union. After Hollis saw Merriewether
engaged in prounion activities, she began to stand for long periods of time watching
Merriewether work. Prior to that time Hollis had spent almost no time at all observing
Merriewether. In addition, the Respondent departed from its practice of calculating attendance
occurrences (and deciding on attendance-based discipline) on a monthly basis, by calculating
Merriewether’s occurrences on March 7 and again on March 15, and disciplining her on both
occasions. The Respondent does not explain why in Merriewether’s case it reviewed
attendance on a weekly basis, rather than a monthly basis as with other employees. See
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Metropolitan Transportation Services, 351 NLRB No. 43, slip op. at 7 (2007) (departure from
past practice may support an inference of unlawful motivation); Intermet Stevensville, 350 NLRB
No. 93, slip op. at 54 (same); Exelon Generation Co., LLC, 347 NLRB 815 fn. 3 (2006) (same).
The timing of Merriewether’s discharge further supports finding a connection between
that discharge and antiunion animus. During the months prior to the Union campaign, the
Respondent gave Merriewether two favorable performance reviews. On February 5, the
Respondent granted Merriewether a pay raise, which marked successful completion of 90-days
as a permanent employee. Then just a month later, after becoming aware of Merriewether’s
union activities, the Respondent issued a written warning to Merriewether for attendance, even
though most of the absences were accumulated before Merriewether’s recent raise. The
warning was issued on the very day that Merriewether attended a Board hearing as a potential
witness for the Union. Eight days after it issued the warning, the Respondent dismissed
Merriewether. The reason given for the discharge was poor attendance, even though
Merriewether’s attendance had been perfect since she received the March 7 warning. Such
timing is an important factor in assessing discriminatory motivation and in this case shows a link
between Merriewether’s termination and the employer’s effort to defeat the Union. See LB&B
Associates, Inc., 346 NLRB 1025, 1026 (2005), enfd. 232 Fed. Appx. 270 (4th Cir. 2007);
Desert Toyota, 346 NLRB 118, 120 (2005); Detroit Paneling Systems, 330 NLRB 1170 (2000),
enfd. sub nom. Carolina Holdings, Inc. v. NLRB, 5 Fed. Appx. 236 (4th Cir. 2001).
Since the General Counsel has met its initial burden, the burden shifts to the
Respondent to prove that it would have terminated Merriewether even in the absence of her
union support and activities. The Respondent has not met that burden. The Respondent’s
written and established policy on progressive discipline for attendance calls for the company to
wait until an employee has accumulated 8 occurrences before terminating the employee for
attendance. Merriewether had, at most, 7 1/3 occurrences, and arguably as few as 5
occurrences, see, supra, footnote 6, when the Respondent discharged her for attendance. The
Respondent asserts that contrary to its written policy it legitimately discharged Merriewether for
fewer than 8 occurrences based on its policy regarding probationary employees. As discussed
above, not only is this purported probation policy unwritten, but is not even alluded to by the
Respondent’s written attendance policy or its employee guidelines manual. Such unwritten
policies are ready tools for discrimination and are suspect. Planned Bldg. Services, 347 NLRB
670, 715 (2007) (the fact that a putative policy is unwritten lends support to a finding that it is
pretextual); Kentucky General, Inc. 334 NLRB 154, 161 (2001) (policy on which union
applicants were rejected is pretextual where, inter alia, policy was unwritten); Sioux City
Foundry, 241 NLRB 481, 484 (1979) (alleged policy relied on to reject applicants who were
strikers from other employers "is a mere pretext" where, inter alia, "this ‘policy’ was not written
down anywhere"); see also Dunning v. National Industries, 720 F. Supp. 924, 931 (M.D. Ala.
1989) ("Unwritten policies, as opposed to written policies, can be easily turned into tools of
discrimination".). If the Respondent had a policy of requiring employees to complete a
probationary period, it seemed inexplicably determined to keep that policy a secret not only
from employees but from itself. The Respondent did not notify employees when they completed
the supposed probationary period and its personnel records did not generally state an
employee’s probationary/non-probationary status. Furthermore, in its brief, the Respondent
argues for the highly subjective and indeterminate probationary period policy that Grewe
testified about and ignores the testimony of Lipsitz that probation ended after 90 days or
workdays. The danger that an unwritten policy will become a ready tool for discrimination is
exacerbated where that policy is described in terms that are as uncertain and subjective as
those the Respondent offers here. See Kentucky General, Inc. 334 NLRB at 161 (policy found
to be pretext for discrimination where, inter alia, it is unwritten and conveniently vague).
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My doubts about the legitimacy of the Respondent’s claim that Merriewether was
discharged pursuant to an unwritten policy regarding probationary employees is heightened by
the fact that the Respondent is a rather large employer that has reduced many of its other
policies to writing. The Respondent not only has a detailed written policy on discipline for
attendance, but also maintains a handbook of employee guidelines, and a handbook on safety
practices. Why would the Respondent reduce so many of its policies to writing, but not include,
or even reference, the purported policy on probation? Such a probationary policy would be
extremely important to the Respondent’s operations – controlling discharge decisions and
nullifying the Respondent’s written attendance policy for a significant number of employees. Yet
the Respondent urges me to believe that it had such a probationary policy and failed to put the
policy in writing, inform employees when they completed probation, or record the completion of
probation in employees’ personnel files.
The testimony of current and former company officials regarding the purported
probationary policy did not help the Respondent to meet its burden. As discussed above, those
officials did not describe the supposed probationary policy with enough consistency or clarity to
permit a conclusion that such a policy applied to Merriewether. According to their testimony,
either the probationary period lasted for 90 days (in which case Merriewether had completed
probation), or for 90 days of actual work (in which case Merriewether still had completed
probation, unless one discounts her 6 months of temporary employment), or for an
indeterminate period of time based on multiple, sometimes subjective, factors that officials were
not required to apply consistently (in which case, who knows?). Moreover, the Respondent
failed to present the testimony of the company official – “Kristyn” -- who supposedly made the
decision to designate Merriewether as probationary. Instead, it presented the testimony of
Grewe, and asks me conclude that nondiscriminatory application of the highly subjective and
indeterminate probationary policy that Grewe described was the reason for Merriewether’s
discharge. The Respondent’s reliance on Grewe’s testimony is even more unpersuasive given
that Grewe had no involvement in Merriewether’s termination, was not working at the Masonic
facility at the time, and conceded that she did not know how other company officials applied the
probationary policy factors.
To the extent that the Respondent’s argument has any facial appeal, it attaches because
an employer could reasonably choose to treat probationary employees more strictly regarding
attendance. But even assuming for the sake of argument that the Respondent had such a
probationary/attendance policy, the Respondent would still not have met its burden in this case
because the evidence does not show that Merriewether was a probationary employee. The
Respondent did not introduce evidence showing how the purported policy on probation was
applied in Merriewether’s case; nor did it produce records documenting Merriewether’s
supposed probationary status. To the extent that the record indicates the Respondent applied a
probationary period in some instances, it would be the 90-calendar-day period. This is
supported by the Respondent’s own attendance-based termination reports that state a
“probation date” approximately 90 calendar days subsequent to an employee’s hire date. This
alternative is also lent credence by the Respondent’s policy of giving employees a pay raise to
mark successful completion of 90 calendar days as a permanent employee. This evidence
does not establish that the Respondent actually had a general practice of applying a
probationary period of any kind to individuals who, like Merriewether, were made permanent
employees after an extended period of temporary employment, but only suggests that if such a
policy existed it most likely used a 90-calendar-day probation period. There is no dispute that
Merriewether was terminated more than 90 calendar days after her date of hire.
Lastly, even assuming that the probationary policy described by Grewe was being
applied by the Respondent, the Respondent has failed to show that Merriewether would have
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been considered probationary under that policy. Merriewether had been working as a
production operator at the Masonic facility for approximately 10 months -- 130 days of that time
as a permanent employee. The Respondent identifies employees who it claims it considered
probationary for purposes of attendance-based discipline, but not a single one of those
employees had worked for the company for more than 90 calendar days, much less for as long
as Merriewether. The Respondent does identify a small number of employees who were
terminated in January 2004 for accumulating fewer than 8 occurrences over a period of more
than 90 calendar days, but those employees were all terminated by the Respondent’s
predecessor Venture, not by the Respondent. Even in those cases, none of the employees
involved had been employed for as long as Merriewether. On the other hand, the evidence
establishes 25 instances in 2006 and 2007 when the Respondent permitted employees to
continue working despite the fact that they had more occurrences than Merriewether. For these
reasons, I conclude that the Respondent has failed to meet its burden of showing that it would
have terminated Merriewether if not for her union support and activities.
I find that the Respondent discriminated against Merriewether in violation of Section
8(a)(3) and (1) by discharging her because she supported the Union and engaged in protected
activities.
2. Thomas
Written Counseling: The General Counsel alleges that the Respondent singled out
Thomas in violation of Section 8(a)(3) and (1), when, on April 11, 2007, it issued written
counseling to him for talking to employees in the IP line department. The Respondent counters
that it counseled Thomas pursuant to its policy of prohibiting employees who are not working
from remaining in work areas of the plant to talk to co-workers.
The General Counsel has met its initial Wright Line burden with respect to this
allegation. The evidence showed that Thomas was an open union supporter who passed out
and accepted authorization cards for the Union, distributed prounion pamphlets, and wore pro-
union buttons, hats and shirts to work. Thomas also repeatedly intervened in the conversations
that Clyburn, the Respondent’s antiunion consultant, was having with employees. There is no
dispute that the Respondent was aware of Thomas’ prounion stance and activities. Lipsitz
testified that the she knew he was an active union supporter. Clyburn, and supervisors Haddix
and Las, all made comments to Thomas that recognized his support for the Union. As I found
in the discussion of the discrimination against Merriewether, the evidence shows that the
Respondent harbored animosity toward the Union and union activity. In addition, the evidence
shows that supervisors made comments to Thomas disparaging unions.
I conclude, however, that the Respondent satisfied its responsive burden by showing
that it would have issued written counseling to Thomas even absent his union support and other
protected activities. The evidence showed that, on April 11, Thomas stopped working and went
to talk to employees in another department while those employees were working. Thomas
admits that he engaged in this conduct and that the conduct was observed by his supervisors.
Thomas’ conduct was contrary to the Respondent’s established policies. Since at least April
2004, the Respondent’s written employee guidelines expressly prohibited employees’ from
“loitering” and “wasting time.” Two witnesses for the General Counsel testified that the
Respondent did not permit an employee who had stopped working to remain in work areas
talking to employees who were working. The Respondent showed that in 2006, before the
Union’s petition, it had issued warnings to other employees who were talking in work areas of
the facility. The General Counsel did not produce any credible evidence that the Respondent
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knowingly permitted employees who were not working to remain in work areas talking
employees who were working.
As discussed above, I do not credit Thomas’ claim that the Respondent’s rule against
wasting time applied to other employees but not to him. On the face of it, that is a rather
astonishing claim and the evidence presented by the General Counsel does not overcome its
facial implausibility. Thomas was not a credible witness and, as discussed above, his testimony
on this point was shifting and without meaningful corroboration. Certainly Thomas’s testimony
was less reliable on the subject than that of Fielder and Schmidt, two hi-lo drivers who testified
for the General Counsel and stated that such behavior was not permissible at the Masonic
facility. Indeed, in the days before Thomas received the written warning, Haddix, Las, and
Paquin had complained that Thomas was not keeping up with his work because of the amount
of time he was spending in conversations with other employees. Aside from Thomas’
testimony, there was no evidence showing that officials of the Respondent had ever knowingly
permitted Thomas to waste time by interrupting his own work in order to go talk to other
employees who were on the plant floor engaged in work activities. See Meijer, Inc., 318 NLRB
50, 56 (1995) (fact that employees previously violated employer policy does not establish that
subsequent enforcement is discriminatory absent evidence that the prior conduct was observed
by management), enfd. 130 F.3d 1209 (6th Cir. 1997).
For the above reasons, I find that the General Counsel has not proven that the
Respondent violated Section 8(a)(3) and (1) when it issued written counseling to Thomas on
April 11, 2007. That allegation should be dismissed.
Suspension and Termination: The General Counsel also alleges that the Respondent
violated section 8(a)(3) and (1) of the Act by suspending Thomas on April 13, 2007, and then
discharging him on May 2, 2007, because of his union support and activities. The Respondent
contends that it discharged Thomas not because of anything having to do with the Union, but
rather because Thomas threatened Clyburn and lied about his criminal history on his application
for employment.
The General Counsel has satisfied its initial burden with respect to these claims. As
discussed above, the evidence shows that Thomas engaged in pro-union activities, the
Respondent was aware of such activities, and the Respondent harbored animosity towards the
Union and union activity. However, I conclude that the Respondent has met its responsive
burden by showing that it would have suspended and terminated Thomas for legitimate reasons
even absent its antiunion motivation.
As discussed above, Thomas threatened Clyburn with violence twice on April 13.
Moreover, the way Clyburn reacted to those threats – i.e., by not only informing the
Respondent, but also calling the police – suggested that Clyburn felt in real danger. The
Respondent has a written “zero-tolerance policy towards workplace violence” under which “[a]ny
such act or threat may lead to discipline, up to and including termination.” Under the
circumstances, I conclude that the Respondent would reasonably believe that permitting
Thomas to remain on-the-job during the investigation created a risk to workplace safety. The
fact that the Respondent suspended Thomas with pay, supports the view that the purpose of the
suspension was not to punish Thomas, but rather to address the safety issue that had been
presented to the Respondent. In Sodexho Marriott Services, 335 NLRB 538, 554 (2001), an
employer did not violate the Act by suspending a prounion employee pending an investigation
into allegations that he had made a threat of violence at work. Although, in that case, the
General Counsel made out a prima facie case under Wright Line, the employer met its rebuttal
burden where, as here, the employee’s denial that he had made the threat was not credible, the
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recipient of the threat was concerned enough to file a police report, and the Respondent had a
“zero tolerance policy” regarding threats of violence in the workplace. Under the similar facts
presented here, I conclude that the Respondent would have suspended Thomas even if he had
not been involved in union activities, and that the suspension did not violate the Act.
I also conclude that the Respondent lawfully terminated Thomas on May 2, 2007. I find
not only that Thomas threatened Clyburn with violence, but also that the Respondent had a
good faith belief, based on its investigation, that Thomas had done so. As discussed above,
Thomas was an unusually inconsistent and evasive witness at trial, and the record shows that
Thomas exhibited the same shortcomings during the Respondent’s internal investigation. I am
not surprised that Mort and Lipsitz found him less credible than Clyburn, who generally
appeared forthcoming and straightforward when discussing the relevant facts. In addition,
Thomas’ assertion during the investigation that he had not even spoken to Clyburn on the day in
question was directly contradicted not only by Clyburn, but also by the statements that Schmidt
and Baker gave to the employer. Thomas’ answers to the Respondent’s questions regarding
the April 10 group meeting and his April 16 hotline report were similarly inconsistent and/or
contrary to credible information possessed by the Respondent. The evidence showed that the
Respondent applied its “zero-tolerance” towards threats of violence not just to Thomas, but also
to terminate other employees who made threats at work in 2006 and 2007.
In its brief, the Union argues that the Respondent’s investigation was so “grossly
inadequate” as to demonstrate that the reasons for discharging Thomas were pretextual. It is
true that a more complete investigation would have included interviews with Schaeffer and
Vermal, both of whom were in a position to witness at least some portion of the interactions that
Clyburn had with Thomas on April 13. However, the Respondent’s failure to interview those
individuals was not so serious as to call into question the basic legitimacy of its investigation.
Neither Schaeffer (an antiunion consultant) nor Vermal was shown to be present during the
exchange between Thomas and Clyburn that began in Schmidt’s presence and ended with
Thomas threatening to “crack” Clyburn’s head. Schaeffer was present at the beginning of the
subsequent exchange that took place at Baker’s press, but not for that entire exchange and not
at the time the threat was made. Although Vermal was somewhere in the vicinity during the
exchange that took place at Baker’s press, he was not as near to it as was Baker. Since, given
the factory noise, even Baker missed significant portions of what was said between Thomas and
Clyburn, it is doubtful that Vermal would have been able to shed additional light on the
conversation. Because Clyburn was much more consistent and credible than Thomas, and
given that the other witnesses directly contradicted Thomas’ claim that he had not said anything
to Clyburn on April 13, it is not surprising that the Respondent concluded it was not necessary to
interview Schaeffer and Vermal. Neither the General Counsel nor the Union called Schaeffer
or Vermal as witnesses to explore what they knew about the relevant events and the record
does not provide any basis for believing that such testimony would have added to an
understanding of those events.
Given the record as a whole, I conclude that Mort would have decided to terminate
Thomas for making threats of violence to Clyburn even if the investigation had not also revealed
that Thomas lied about his criminal background when completing his applications. The record
shows that prior to requesting the background check, Mort “felt strongly’ that “termination was
justified,” based on the investigation the Respondent had already performed regarding Thomas’
threats. She took the additional step of checking whether Thomas had a criminal history
consistent with the alleged threats of violence in order to make sure “we had all our i's dotted
and our t's crossed” in light of the ongoing union campaign and the likelihood that Thomas’
termination would result in a charge.
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In light of my conclusion that the Respondent would have terminated Thomas
based on the threats of violence he made to Clyburn, even absent Thomas’ union support
and protected conduct, I need not reach the question of whether Thomas’ false application
statements constitute an additional nondiscriminatory justification for the Respondent’s
action. Under the circumstances presented here, that is a difficult question and the parties
have not cited any authority squarely addressing it.20 Since an answer to that question will
not affect the outcome here, I do not reach it.
For the reasons discussed above, I conclude that the General Counsel has not
shown that the Respondent discriminated in violation of Section 8(a)(3) and (1) when it
suspended and terminated Thomas.
B. Section 8(a)(1)
The General Counsel argues that, on February 12, 2007, Dmytryszyn threatened
employees DeGrandchamp, Robertson, and Vanidour with discharge for union activities in
violation of Section 8(a)(1). As discussed in the factual findings above, the record does not
show that Dmytryszyn made the statements alleged to be unlawful. Therefore, the complaint
allegation based on those statements should be dismissed.

20 Mort’s testimony indicated that the Respondent discovered the application falsifications as
the result of a background check that it would not have conducted absent its concern that, given
the union campaign, Thomas’ termination was likely to result in an unfair labor practices charge.
The purpose of that background check was to see if Thomas had a history of violence that was
consistent with Clyburn’s allegation that Thomas had threatened him, and which might further
support the discharge decision that the Respondent expected to make. As the General Counsel
notes, the Board has held that employee misconduct discovered during an investigation
undertaken because of the employee's protected activity does not render a discharge lawful.
Brief of General Counsel at Page 32; see also FedEx Freight East, Inc., 344 NLRB 205, 212
(2005), enfd. 431 F.3d 1019 (7th Cir. 2005); Supershuttle of Orange County, Inc., 339 NLRB 1
(2003); Kut Rate Kid & Shop Kwik, 246 NLRB 106, 121-22 (1979). On the other hand, in Inland
Steel Company, 263 NLRB 1091 (1982), the Board held that an employer did not necessarily
violate the Act by terminating a prounion employee based on application falsifications
discovered as a result of an investigation initiated when the employee’s union activities brought
her name to the employer’s attention. In Inland Steel, the Board stated that the question turned
on motivation, and that the circumstances permitted, but did not compel, an inference that the
employer initiated the investigation for the purpose of discovering a reason to terminate the
union supporter. Based on the record in the instant case, I conclude that the Respondent
checked Thomas’ background as an outgrowth of a legitimate investigation into allegations that
he threatened Clyburn. When the employer’s investigation indicated that Thomas would likely
have to be terminated, the Respondent took extra investigatory steps out of concern that, given
the union campaign and Thomas’ union activity, the termination decision would need to
withstand the scrutiny brought by an unfair labor practices charge. That is a different motivation
than would exist if the Respondent had initiated the background check in order to find a way of
disguising that the true reason for Thomas’ discharge was protected activity. Nevertheless, it is
not at all clear that the Respondent can use Thomas’ application falsifications to defend the
discharge decision since the Respondent would not have undertaken the background check that
revealed those falsifications absent Thomas’ union activity and the union campaign.
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Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent discriminated against Merriewether in violation of Section 8(a)(3)
and (1) of the Act by discharging her on March 15, 2007, because she supported the Union and
engaged in protected activities.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. In particular, I recommend that the Respondent be required to
offer Merriewether reinstatement and make her whole for any loss of earnings and other
benefits she suffered as a result of her discharge, computed on a quarterly basis, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The General Counsel urges that the Board's "current practice of awarding only simple
interest on backpay and other monetary awards be replaced with the practice of compounding
interest." Brief of General Counsel at 33. The Board has considered, and rejected, this
argument for a change in its practice. See Rogers Corp., 344 NLRB 504 (2005), citing
Commercial Erectors, Inc., 342 NLRB 940 fn. 1 (2004) and Accurate Wire Harness, 335 NLRB
1096 fn.1 (2001), enfd. 86 Fed. Appx. 815 (6th Cir. 2003). If the General Counsel's argument in
favor of compounding interest has merits, those merits are for the Board to consider, not me. I
am bound to follow Board precedent on the subject. See Hebert Industrial Insulation Corp., 312
NLRB 602, 608 (1993); Lumber & Mill Employers Assn., 265 NLRB 199 fn. 2 (1982), enfd. 736
F.2d 507 (9th Cir. 1984), cert. denied 469 U.S. 934 (1984); Los Angeles New Hospital, 244
NLRB 960, 962 fn. 4 (1979), enfd. 640 F.2d 1017 (9th Cir. 1981).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended Order.21
ORDER
The Respondent, Cadence Innovation, LLC, Troy, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for supporting the

21 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO or any other union.
(b) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Tawana Merriewether full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Tawana Merriewether whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her in the manner set forth in the remedy
section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against her in any way.
(d) 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 designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its Masonic facility copies of the
attached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since March 15, 2007.
(f) 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.

22 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. September 17, 2008
____________________
Paul Bogas
Administrative Law Judge
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Tawana Merriewether full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Tawana Merriewether whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the
unlawful discharge of Tawana Merriewether, and WE WILL, within 3 days thereafter, notify her
in writing that this has been done and that the discharge will not be used against her in any way.
Cadence Innovation, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
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the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 513-684-3750.