Cadence Innovation, LLC

National Labor Relations Board - Board Decisions

Jan 16, 2009

353 N.L.R.B. 703 (N.L.R.B. 2009)

CADENCE INNOVATION, LLC
353 NLRB No. 77
703
Cadence Innovation, LLC and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–
CIO. Cases 9–CA–43672, 9–CA–43673, and 9–
CA–43674
January 16, 2009
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On September 17, 2008, Administrative Law Judge
Paul Bogas issued the attached decision. The Respondent
filed exceptions and the General Counsel filed an answering
brief and limited cross exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended Or-
der.3

1 There are no exceptions to the judge’s recommended dismissal of
allegations that the Respondent unlawfully discharged employee Shont-
taye Thomas or unlawfully threatened employees with discharge be-
cause of their union activities.
The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In his cross-exception and supporting brief, the General Counsel
seeks compound interest computed on a quarterly basis for any make-
whole relief awarded. Having duly considered the matter, we are not
prepared at this time to deviate from our current practice of assessing
simple interest. See, e.g., Goya Foods of Florida, 352 NLRB 884 at fn.
2 (2008).
2 The judge, applying Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), found
that the Respondent unlawfully discharged employee Tawana Mer-
riewether. To establish a violation under Wright Line, the General
Counsel bears the burden of showing that union animus was a motivat-
ing or substantial factor for the adverse employment action. The ele-
ments commonly required to support such a showing are union or pro-
tected concerted activity by the employee, employer knowledge of that
activity, and union animus on the part of the employer. See, e.g., Con-
solidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007); Desert
Springs Hospital Center, 352 NLRB 112 (2008). Chairman Schaumber
notes that the Board and the circuit courts of appeal have variously
described the evidentiary elements of the General Counsel’s initial
burden of proof under Wright Line, sometimes adding as an independ-
ent fourth element the necessity for there to be a causal nexus between
the union animus and the adverse employment action. See, e.g., Ameri-
can Gardens Management Co., 338 NLRB 644, 645 (2002). As stated
in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation standard, Chairman Schaumber agrees with this
addition to the formulation. In this case, he finds a causal nexus be-
tween the Respondent’s union animus and Merriewether’s discharge.
In adopting the finding that the General Counsel established anti-
union animus, Chairman Schaumber does not rely on the judge’s find-
ing that the Respondent opposed unionization and hired an outside
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cadence Innovation, LLC,
Troy, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Naima R. Clarke, Esq., for the General Counsel.
Craig M. Stanley, Esq. (Butzel Long, P.C.), of Detroit, Michi-
gan, for the Respondent.
Ava Barbour, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. I heard these con-
solidated cases in Detroit, Michigan, on March 25, 26, 27, and
28, 2008. The International Union, United Automobile, Aero-
space 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 for Region 9 of the Na-
tional Labor Relations Board (the Board) issued the order con-
solidating 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 Mer-
riewether and disciplining, suspending, and discharging em-
ployee Shonttaye Thomas because of their union support and
protected activities. The complaint also alleges that the Re-
spondent 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.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following

consultant to disseminate antiunion information to employees. See
Basic Industries, 348 NLRB 1267 fn. 5 (2006)
3 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD704
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 Un-
ion initiated an effort to become the collective-bargaining rep-
resentative of employees at a number of the Respondent’s fa-
cilities, including the Masonic and Groesbeck plants. The dis-
charges 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 employ-
ees.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 pro-
duction 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 Cly-
burn, an employee of Russ Brown and Associates, began to
campaign against the Union at the Masonic plant. He was pre-
sent at the Masonic plant 5 days a week and would walk around

2 The Respondent acquired the Masonic plant, as well as other facili-
ties, 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. Tr. 230, 782. There was no testimony about the num-
ber 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 ap-
proximately 1270.
4 Hi-lo drivers are also sometimes referred to in the record as “mate-
rial handlers.”
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 informa-
tion 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 posi-
tion on a permanent basis, something it did for temporary em-
ployees 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, de-
spite 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 per-
manent employee. On February 5, 2007—90-calendar days
after her employment became permanent—Merriewether re-
ceived 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 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 week-
ends. 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 cam-
paign at Cadence and became an active and open union sup-
porter. Merriewether collected union authorization cards from
employees, distributed union buttons, and spoke to coworkers
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 supervi-
sors, 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 activi-
ties, her behavior towards Merriewether changed dramatically.
CADENCE INNOVATION, LLC 705
Previously, Hollis had never stopped to watch Merriewether
work. After becoming aware of Merriewether’s union activi-
ties, 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. 205–206.)
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 sub-
poena would prevent her from arriving on time for her work
shift, which started at 3:30 p.m. Therefore, she provided the
subpoena to Hollis prior to the hearing. Merriewether attended
the hearing on March 6 and 7. Ann Lipsitz, the human re-
sources manager at the Masonic facility, also attended the hear-
ing and observed that Merriewether was present and appeared
ill during the session on March 6. After the March 6 session
adjourned at 5:16 p.m, Merriewether continued to feel unwell,
but came to the Masonic plant anyway. Upon arriving, Mer-
riewether talked to Hollis and another supervisor about obtain-
ing medical attention at the clinic the Respondent made avail-
able 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 p.m. Then, Merriewether
drove a coworker home, continued to her own home to change
into work clothes, and drove both herself and the coworker 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 documenta-
tion regarding the treatment she had obtained that morning.
Later the same day, Hollis issued a written attendance warn-
ing to Merriewether. The warning stated:
ATTENDANCE COMMUNICATION RECORD
WRITTEN WARNING5
According to our records you have accumulated six occur-
rences of absence. Your attendance record is considered un-
acceptable 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 six oc-
currences under the attendance policy.
On March 15, Lipsitz told Merriewether that she was being
terminated for accumulating a total of seven-and-one-third
attendance occurrences. How this new, higher, total was ar-
rived at is somewhat unclear since the Respondent’s own atten-
dance records show that Merriewether did not miss any time

5 This is how the printed heading read when the document was pre-
sented 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.
subsequent to receiving the March 7 warning. When Mer-
riewether disputed Lipsitz’ 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. Lip-
sitz 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 Re-
spondent made her a permanent employee in that position.
3. Attendance policy
The Respondent has a written attendance policy that was in
effect at the time Merriewether was discharged. (See GC Exh.
2.) Under that policy, employees are not discharged for absen-
teeism until they reach eight occurrences within a 12-month
period. The policy states that excessive absenteeism will be
subject to the following steps of progressive discipline: a ver-
bal warning for five occurrences of absence; a written warning
for six occurrences of absence; a final written warning for
seven occurrences of absence; and termination for eight occur-
rences of absence. A full occurrence is incurred for any ab-
sence of 1 day in duration, except that only one 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 occur-
rence 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 proba-
tionary or newer employees being subject to a different atten-
dance standard, nor does it mention terminating employees for
less than eight occurrences during their initial period of em-
ployment.6

6 I reviewed Merriewether’s attendance record, GC Exh. 8, under the
standards set forth in the written attendance policy. Based on this re-
view, I find that Merriewether had, at most, seven legitimate “occur-
rences” and possibly as few as five at the time she was discharged.
Merriewether was charged with a one-third 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 report-
ing to work once she was released to leave the hearing. Indeed, the
coworker 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 one-third 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 com-
pelled 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 two occurrences for a period of illness that caused
absences on 4 workdays that straddled a weekend. Under the Respon-
dent’s attendance policy only one occurrence is charged for consecutive
days of absence due to illness. Since Merriewether did not work week-
ends, I would expect her absence of 4 consecutive workdays to be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD706
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 eight occur-
rences, it legitimately discharged Merriewether for less than
eight 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 desig-
nate whether an employee is probationary or not and do not
generally memorialize the change in status from probationary
to nonprobationary. The Respondent’s written attendance pol-
icy 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 pro-
bationary period. (GC Exh. 22.) (Cadence Innovation Em-
ployee 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 probation-
ary. To the contrary, the record shows that at least some em-
ployees, 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 proba-
tionary 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’ testimony that the probationary period ended after 90

treated as a single occurrence, but the Respondent charged her with two
occurrences for that period.
7 Based on her demeanor and testimony, I found Lipsitz a less than
credible witness regarding most disputed matters. She appeared unusu-
ally 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, 139–140. 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 Respon-
dent 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.)
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 em-
ployed, 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 work-
ing 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 proba-
tionary employee. (Tr. 738.) In light of the evidence, I am
astonished by the Respondent’s attempt to characterize its pro-
bationary policy as “unwritten, but universally known and con-
sistently enforced,” Brief of Respondent at page 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.
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 re-
garding this, that evidence suggests that any probationary pe-
riod 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 over-
whelming 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 testi-
mony that probation did not end after 90-calendar days or any
other fixed period of time. (Tr. 735–737.)
The evidence regarding the treatment of other employees
does not substantiate the Respondent’s contention that Mer-
riewether was still a probationary employee when she was ter-
minated 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 eight occur-
rences. Nor did it identify a single such employee who it dis-
charged in 2006 under such circumstances. In order to identify

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.
9 GC Exh. 31 (termination reports for W. Crosby, R. Lewis, K. May
Jr., and A. Ruffin).
CADENCE INNOVATION, LLC 707
any employees who were discharged for poor attendance based
on fewer than eight 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 fn. 2,
supra. 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 eight
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 occur-
rences than Merriewether. Indeed, during 2006 and 2007, the
Respondent gave written warnings, not termination notices, to 16
employees who had each accumulated more than eight occur-
rences. (GC Exhs. 35 to 50.) Also during that period, the Re-
spondent waited to terminate nine employees until they accumu-
lated more than eight 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 Re-
spondent permitted Merriewether before firing her.
The Respondent contends that it calculates an employee’s to-
tal number of occurrences once monthly and at that time de-
cides on discipline. (R. Br. at 7; Tr. 723–724.) According to
the Respondent, this explains why so many employees were not
terminated until after they had accumulated not only more than
the seven-and-one-half occurrences it says Merriewether had,
but in excess of the eight occurrences that should result in ter-
mination 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
eight-occurrence benchmark. It suggests discrimination be-
cause the record shows that, in Merriewether’s case, the Re-
spondent departed from its practice of calculating an em-
ployee’s occurrence total for purposes of attendance-based
discipline on a monthly basis. On March 7, the Respondent
issued a warning to Merriewether for accumulating six occur-
rences, 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 prac-
tice 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 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 Ma-
sonic 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 col-
lected completed cards from them. He wore union buttons,
hats, and shirts, and passed out union pamphlets. Lipsitz testi-
fied 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 con-
sultant 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 ear-
lier. 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 intro-
ducing 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. Tho-
mas attempted to intervene in the conversation and he and Cly-
burn traded insults. Clyburn stated that the conversation was
only for “tall” me—a reference to the fact that Clyburn is consid-
erably 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 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

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, 761–762.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD708
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 “[i]f you all talk to each other and don’t re-
spond to him, he can’t do nothing but leave,” because “no-
body’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 coworkers 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 any-
more, because we don’t want the line to stop.” Thomas re-
sponded 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 writeup.
The record establishes that the Respondent permits employ-
ees 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 em-
ployees 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. 194–195, 276–278, 282–283.)11
Thomas conceded that the Respondent had a rule against em-
ployees 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. 353–354.) The evidence showed that
the Respondent had disciplined employees for engaging in
nonwork 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 Exhs. 51 and 53.)
c. Alleged threats of April 13
On April 13, Thomas interrupted Clyburn’s conversations

11 Fielder and Schmidt were both witnesses for the General Counsel,
and Fielder described himself and Thomas as good friend. (Tr. 268.)
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 pay-
ing them to be here.”
On the second occasion, Clyburn was in the molding de-
partment talking to a hi-lo driver named Shawn Schmidt.
Thomas drove up on a hi-lo, stopped about 2 feet from Clyburn,
and began waving a document with information about Cly-
burn’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 con-
tinue 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 Tho-
mas started to drive away. Clyburn, who was on foot, offered
to pause in order to allow Thomas to drive past. Thomas re-
sponded: “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 de-
partment, Clyburn contacted the police and reported that Tho-
mas had threatened him. Clyburn testified that he decided 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 credi-
bility 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.
CADENCE INNOVATION, LLC 709
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 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,
“[N]o.” 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.
3. 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 dis-
tressed. Lipsitz asked Clyburn to send her an e-mail describing
what had happened.
On April 13, Lipsitz, Mort, Rob Paquin (operational man-
ager, Masonic plant), and Glenn Tosta (molding deparment
supervisor) met with Thomas immediately after the police fin-
ished 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’ re-
sponse 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. Cly-
burn 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 meet-
ings around the plant. Clyburn’s account of the incident re-
mained generally consistent through these meetings. Clyburn
also set forth his account of what happened on April 13 in an e-
mail to Lipsitz. Clyburn wrote that he was having a conversa-
tion 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 every-
thing 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.
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 Tho-
mas 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 Cly-
burn—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 “noth-
ing.” 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 ac-
cusation 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

14 I credit Lipsitz’ 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 fn. 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD710
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 “noth-
ing,” Thomas replied that the operator taking his report mis-
quoted him. Mort testified that, based on the interviews with
Thomas, she concluded that he was not being truthful and that,
after completing the April 17 interview, she was leaning heav-
ily towards crediting Clyburn regarding the events of April 13.
At the recommendation of legal counsel, the Respondent re-
quested 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 Tho-
mas’ background suggesting that he had a propensity for vio-
lence 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
4. 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 Tho-
mas made a threat of violence in the workplace and had falsi-
fied 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 inter-
views and even within a single interview. Although Mort her-
self 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

16 The record contains two employment applications completed by
Thomas. The first one, dated May 26, 2004, was submitted 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.”
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 final-
izing 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 coworkers 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 disci-
pline, up to and including termination.” The Respondent’s
employee guidelines state that “falsifying records” is “unac-
ceptable and will not be tolerated by the company.” In addi-
tion, 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 employees other than Thomas for mak-
ing threats or engaging in disruptive arguments. In August
2006, the Respondent terminated an employee for threatening a
coworker. (Emp. Exh. 16.) The Respondent terminated an
employee in March 2007, for “threatening another employee.”
(Emp. 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 “dis-
crimination, 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 Exh. 19, GC Exh. 20; Tr.
149.)
The record also showed that the Respondent had terminated
other employees for including false information on their appli-
cations. In 2006, the Respondent terminated approximately 20
employees at another facility after background checks revealed
that they had lied about their criminal backgrounds when com-
pleting their applications. (Tr. 601–602.) The Respondent has
also terminated three employees at the Masonic facility because
they made false statements on their applications. (Emp. Exhs.
10, 11, and 13; Tr. 741.) Coogan, the Respondent’s vice presi-
dent of human resources gave uncontradicted testimony that the
Respondent disqualifies all applicants who have been convicted
of misdemeanors involving violence.
5. 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 try-
CADENCE INNOVATION, LLC 711
ing his best to accurately recount events of a year earlier. I did
not have the impression that he was attempting to slant or ex-
aggerate his testimony to favor the Respondent. Although Cly-
burn’s memory regarding details failed him at times, he demon-
strated 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 addi-
tional credence to Clyburn’s account of the threat. In addition,
the evidence showed that Clyburn had been involved as a con-
sultant 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 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 con-
versation 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 “conversa-
tion” because, while Clyburn was talking to him, he had only
responded, “yeah,” “uh-huh,” or “whatever.” (Tr. 373.) Tho-
mas 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. 345–346.) When confronted with his
completed 2004 application, which explicitly asked about mis-
demeanor 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, 351–352.)
His testimony was also shifting regarding the question of the
hotline complaint he made after being suspended. First he af-
firmed that the written hotline report was an accurate statement.
(Tr. 333–334.) 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. 366–367.) 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 misrepre-
sented what he had said. (Tr. 392–393.) 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. 388–389.) This contention is contrary
not only to his hotline report, in which Thomas both stated that
Clyburn made threats and reported plainly threatening state-
ments 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 work-
ing. At first Thomas claimed that this rule applied to other
employees, but not to him. (Tr. 353–354.) He recounted tell-
ing a supervisor that he had “stood” at the IP line and talked to
employees for “hours and hours” and that no one had said any-
thing 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 working
(Tr. 356–357), 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 Re-
spondent’s] own management did.” (Tr. 383–384.) He repeat-
edly referred to himself in the third person. (See, e.g., Tr. 357)
(No official “ever said anything to Shonttaye about conversat-
ing 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 Febru-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD712
ary 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. Dmy-
tryszyn and DeGrandchamp know one another not only from
the Groesbeck plant, but also from having worked together at
another company approximately 18 years earlier. DeGrand-
champ was an open supporter of the Union who attended union
meetings and wore prounion buttons at work during the cam-
paign. Dmytryszyn testified that he knew that DeGrandchamp
supported the Union.
DeGrandchamp testified that during the campaign, Dmy-
tryszyn “harassed” her “every day” about wearing union but-
tons. 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, Dmy-
tryszyn “threw his hands up in the air,” then approached and
asked “[A]re you talking about union business.” DeGrand-
champ 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 De-
Grandchamp 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 he said?” and DeGrandchamp
answered, “Yes, he did.”
DeGrandchamp also testified about a second threat by Dmy-
tryszyn. This threat is not alleged in the complaint and De-
Grandchamp could not say when it occurred. At any rate, De-
Grandchamp 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 Dmy-
tryszyn responded, “No I’m not going to fire you; I’m going to
send you down to Chesterfield and you can be union steward

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.”
down there.”19 DeGrandchamp stated that in the years she had
worked with him, she had never known Dmytryszyn to disci-
pline 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 disci-
plined anyone because of their union support and that during
the course of the union campaign he did not discharge any em-
ployees 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 Chester-
field so that they could be union steward there. According to
Dmytryszyn, he not only did not comment about DeGrand-
champ’s buttons every day, but did not even see her on a daily
basis. He stated that he did not know anything about the accu-
sation 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 credi-
bility 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 coworkers 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 De-
Grandchamp’s allegations. It is true that DeGrandchamp’s
testimony had the virtue of being more detailed than Dmy-
tryszyn’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 employ-
ees 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 Dmy-
tryszyn more likely than not made the February 12 statement
alleged to be an unlawful threat.
E. Complaint Allegations
The complaint alleges that the Respondent violated Section

19 Chesterfield is a unionized facility operated by the Respondent
CADENCE INNOVATION, LLC 713
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 em-
ployees 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 Management 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 activi-
ties, and (3) the employer harbored animosity towards the un-
ion or union activity. Intermet Stevensville, 350 NLRB 1273
(2007); Senior Citizens Coordinating Council, 330 NLRB
1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356
(1999). If the General Counsel establishes discriminatory mo-
tive, 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 en-
gaged in an array of prounion activities. These included wear-
ing union buttons, distributing union buttons to other employ-
ees, 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 anti-
union information to employees.
The Respondent’s officials began treating Merriewether dif-
ferently when they discovered that she was engaged in activi-
ties on behalf of the Union. After Hollis saw Merriewether
engaged in prounion activities, she began to stand for long pe-
riods 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 calcu-
lating attendance occurrences (and deciding on attendance-
based discipline) on a monthly basis, by calculating Mer-
riewether’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 Metropolitan Transportation Services, 351
NLRB 657, 661 (2007) (departure from past practice may sup-
port an inference of unlawful motivation); Intermet Stevens-
ville, 350 NLRB at 1327 (same); Exelon Generation Co., 347
NLRB 815 fn. 3 (2006) (same).
The timing of Merriewether’s discharge further supports
finding a connection between that discharge and antiunion ani-
mus. During the months prior to the union campaign, the Re-
spondent gave Merriewether two favorable performance re-
views. 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 is-
sued a written warning to Merriewether for attendance, even
though most of the absences were accumulated before Mer-
riewether’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 dis-
criminatory 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 Toy-
ota, 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 bur-
den shifts to the Respondent to prove that it would have termi-
nated 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 eight occurrences before terminat-
ing the employee for attendance. Merriewether had, at most,
seven-and-one-third occurrences, and arguably as few as five
occurrences, see, supra, footnote 6, when the Respondent dis-
charged her for attendance. The Respondent asserts that con-
trary to its written policy it legitimately discharged Mer-
riewether for fewer than eight 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 Build-
ing Services, 347 NLRB 670, 715 (2007) (the fact that a puta-
tive policy is unwritten lends support to a finding that it is pre-
textual); 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,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD714
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 inex-
plicably determined to keep that policy a secret not only from
employees but from itself. The Respondent did not notify em-
ployees when they completed the supposed probationary period
and its personnel records did not generally state an employee’s
probationary/nonprobationary status. Furthermore, in its brief,
the Respondent argues for the highly subjective and indetermi-
nate 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 sub-
jective as those the Respondent offers here. See Kentucky Gen-
eral, Inc., 334 NLRB at 161 (policy found to be pretext for
discrimination where, inter alia, it is unwritten and conven-
iently vague).
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 atten-
dance, but also maintains a handbook of employee guidelines,
and a handbook on safety practices. Why would the Respon-
dent 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 Re-
spondent’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 com-
pleted probation, or record the completion of probation in em-
ployees’ personnel files.
The testimony of current and former company officials re-
garding the purported probationary policy did not help the Re-
spondent 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 Mer-
riewether had completed probation), or for 90 days of actual
work (in which case Merriewether still had completed proba-
tion, unless one discounts her 6 months of temporary employ-
ment), 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 nondis-
criminatory application of the highly subjective and indetermi-
nate 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 pro-
bationary 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 “proba-
tion 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 Respon-
dent 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 tempo-
rary 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 Respon-
dent has failed to show that Merriewether would have 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 per-
manent 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 eight 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 em-
ployees involved had been employed for as long as Mer-
riewether. On the other hand, the evidence establishes 25 in-
stances in 2006 and 2007 when the Respondent permitted em-
ployees 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
CADENCE INNOVATION, LLC 715
support and activities.
I find that the Respondent discriminated against Mer-
riewether 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 coworkers.
The General Counsel has met its initial Wright Line burden
with respect to this allegation. The evidence showed that Tho-
mas was an open union supporter who passed out and accepted
authorization cards for the Union, distributed prounion pam-
phlets, and wore prounion 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 testi-
fied that the she knew he was an active union supporter. Cly-
burn, 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 re-
sponsive 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 Re-
spondent knowingly permitted employees who were not work-
ing to remain in work areas talking employees who were work-
ing.
As discussed above, I do not credit Thomas’ claim that the
Respondent’s rule against wasting time applied to other em-
ployees but not to him. On the face of it, that is a rather aston-
ishing 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. Cer-
tainly, 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 conversa-
tions 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 inter-
rupting 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 al-
leges 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 re-
spect to these claims. As discussed above, the evidence shows
that Thomas engaged in prounion 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 vio-
lence 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 dan-
ger. The Respondent has a written “zero-tolerance policy to-
wards 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 investiga-
tion 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 rebut-
tal burden where, as here, the employee’s denial that he had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD716
made the threat was not credible, the 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 con-
clude 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 threat-
ened 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 incon-
sistent and evasive witness at trial, and the record shows that
Thomas exhibited the same shortcomings during the Respon-
dent’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 inves-
tigation 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 em-
ployer. Thomas’ answers to the Respondent’s questions re-
garding 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” to-
wards threats of violence not just to Thomas, but also to termi-
nate other employees who made threats at work in 2006 and
2007.
In its brief, the Union argues that the Respondent’s investi-
gation 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. Nei-
ther Schaeffer (an antiunion consultant) nor Vermal was shown
to be present during the exchange between Thomas and Cly-
burn 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 Ver-
mal would have been able to shed additional light on the con-
versation. Because Clyburn was much more consistent and
credible than Thomas, and given that the other witnesses di-
rectly 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 vio-
lence to Clyburn even if the investigation had not also revealed
that Thomas lied about his criminal background when complet-
ing 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.
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 nondis-
criminatory 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

20 Mort’s testimony indicated that the Respondent discovered the ap-
plication 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 Gen-
eral Counsel notes, the Board has held that employee misconduct dis-
covered during an investigation undertaken because of the employee’s
protected activity does not render a discharge lawful. Brief of General
Counsel at p. 32; see also FedEx Freight East, Inc., 344 NLRB 205,
212 (2005), enfd. 431 F.3d 1019 (7th Cir. 2005); Supershuttle of Or-
ange County, Inc., 339 NLRB 1 (2003); Kut Rate Kid & Shop Kwik,
246 NLRB 106, 121–122 (1979). On the other hand, in Inland Steel
Co., 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 investi-
gation into allegations that he threatened Clyburn. When the Em-
ployer’s investigation indicated that Thomas would likely have to be
terminated, the Respondent took extra investigatory steps out of con-
cern 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’ dis-
charge 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.
CADENCE INNOVATION, LLC 717
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 ter-
minated 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.
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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. 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 quar-
terly basis, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted 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 mone-
tary awards be replaced with the practice of compounding in-
terest.” (GC Br. At 33.) The Board has considered, and re-
jected, 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 com-
pounding 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. de-
nied 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 recommended21
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 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, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of 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 privi-
leges previously enjoyed.
(b) Make Tawana Merriewether whole for any loss of earn-
ings 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, re-
move 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 addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Masonic facility copies of the attached notice marked “Appen-
dix.”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

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD718
closed the facility involved in these proceedings, the Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 no-
tice.
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 activi-
ties
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 privi-
leges 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 Ta-
wana Merriewether, and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that the dis-
charge will not be used against her in any way.
CADENCE INNOVATION, LLC