DTR Industries, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 9, 2004

08-CA-033708 (N.L.R.B. Apr. 9, 2004)

JD(ATL)–20–04
Bluffton, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES

DTR INDUSTRIES, INC.

and Case No. 8-CA-33708-1

INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW

Iva Y. Choe, Esq. for the General Counsel.
Robert F. Rivera, Esq. and James A. Rydzel, Esq.
(Jones Day), of Cleveland, OH, for the Respondent.

DECISION

Statement of the Case

JOHN H. WEST, Administrative Law Judge: The charge was filed by International Union,
United Automobile Aerospace and Agricultural Implement Workers of America, UAW (Union,
Charging Party or UAW) against DTR Industries, Inc. (DTR or Respondent) on September 30,
2002.1The charge was amended on December 17 and January 27, 2003, and a complaint was
issued on February 28, 2003 alleging that Respondent (1) violated Section 8(a)(1) of the
National Labor Relations Act, as amended (Act), by (a) in early summer 2002 at its facility, by its
representative Thomas King, giving employees the impression that their union activities were
under surveillance, (b) in early summer 2002 at its facility, by King, threatening its employees
with discipline if they continued their support and activities on behalf of the Union, (c) on or
about August 29, by King, at the Respondent’s facility, threatening employees with layoff and
job loss if the employees selected the Union as their bargaining representative, (d) on or about
September 25, 26, and in late September 2002 by its representatives David Berry, Rick Mead,
Roger Helms and David Byglin, at Respondent’s facility, disparately enforcing its solicitation
policy and its uniform policy against employees showing their support for the Union, and (e) in
late August or early September 2002 by King, at Respondent’s facility, giving the impression
that employees’ union activities were under surveillance, and (2) violated Section 8(a)(1), and
Section 8(a)(1) and (3) of the Act by (a) on or about September 17 selecting its employee Daniel
Gahman for a drug test and discharging him on September 25 because he formed, joined and
assisted the Union and engaged in concerted activities, (b) on or about August 30 suspending
its employee John Callahan, (c) on or about September 6 discharging Callahan, (d) on or about
September 18 suspending Callahan after an internal peer review group overturned Callahan’s
September 6 discharge, and (e) on or about January 3, 2003, failing to return Callahan to his
former or substantially equivalent position of employment, engaging in the conduct described
above in (2) (b), (c), (d), and (e) because Callahan formed, joined and assisted the Union and
engaged in concerted activities. In its answer the Respondent denies violating the Act as
alleged in the complaint, and the Respondent asserts that the disciplinary action taken against
1 All dates are in 2002 unless indicated otherwise.

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Graham and Callahan was taken for a valid and lawful business reason; that Callahan
voluntarily resigned his position with the Respondent on June 24, 2003, and had he not, he
would have been terminated; and that King’s above-described comments on August 29 about
the Respondent being the “sole source supplier” to various of its customers are protected under
Section 8(c) of the Act, and were the type of comments expressly approved in DTR Industries,
Inc.v. NLRB, 39 F.3d 106 (6th Cir. 1994).

A trial was held in this matter on December 16, 17, and 18, 2003, in Lima, Ohio. On the
entire record, including my observation of the demeanor of the witnesses, and after considering
the briefs filed by Counsel for General Counsel and the Respondent, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a Delaware corporation with an office and place of business in
Bluffton, Ohio, has been engaged in the business of manufacturing rubber products for the
automobile industry. The Respondent admits that annually, in performing its business, it sells
and ships goods valued in excess of $50,000 directly to points located outside the State of Ohio.
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 the Union is a labor organization within the
meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

The Respondent manufactures rubber and plastic automotive hoses and also rubber
anti-vibration products. It has three shifts at its Bluffton facility, namely the first which runs from
7 a.m. to 3:20 p.m., the second which runs from 3 p.m. to 11:20 p.m., and the third which runs
from 11 p.m. to 7:20 a.m. There are about 800 employees at the Bluffton facility, with about 375
on the first shift, 225 on the second shift, and 200 on the third shift.2

The Respondent’s employee handbook, General Counsel’s Exhibit 2, contains the
following:

Our non-union status is a compliment to all of our … [employees] and all of our
managers at DTR. We believe that it is not necessary for our … [employees] to belong to
a union in order to enjoy a satisfying work life at DTR. It is the commitment of DTR
management to make every effort to maintain a working environment where …
[employees] can openly discuss their problems and ideas. Maintaining this type of
environment and maintaining positive relationships between all … [employees] protects
our customers, our jobs and our Company.

When called by Counsel for General Counsel, King, who is the Respondent’s Executive
Coordinator, testified that it is the Respondent’s preference to remain union free, and the
Respondent does not think a union would contribute any positive affect to the relationship
between the Company and its employees.3
Continued
2 The employees are referred to as associates by DTR but since the Act refers to
employees, that is how they will be described herein.
3 As Executive Coordinator, King is responsible for all Human Resources activities in the
Company with respect to all of the employees and management. He reports to the President of

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_________________________

According to his testimony, in mid-July 2002 while he was on vacation, Callahan, who
was hired in 1996 and was a general laborer in hose manufacturing on assembly line 3, was
“begged” by his supervisor Chad Risner to come to work on a Sunday because DTR had to
quickly get out some parts for Honda to replace some bad parts.4 Callahan testified that Risner
told him that he could run line 3 faster than anybody, he knew the machinery, and he could get
the parts out. Callahan worked that Sunday.

When he returned from his vacation Callahan went to Line Assembly 2 for about 2
weeks.

In July 2002 Callahan, who worked on the first shift, became active in the Union
organizing drive at DTR. He attended union meetings, signed a union authorization card,
passed out union leaflets, had other employees sign union authorization cards, and talked about
the Union every work day in the lunchroom when he passed out union leaflets.

In July 2002 Gahman, who worked on the third shift, became active in the Union
organizing drive at DTR. He attended union meetings, passed out union authorization cards
during his lunch and breaks, in the smoking area in front of DTR and at a bar after work, and
talked about the Union to employees. While he was talking to other employees in the smoking
area or in the lunch room about the Union, he saw Helms, who is the third shift supervisor.
Helms also showed up at the bar where the employees hung out after work.

King met with Gahman in late July 2002. King’s notes, General Counsel’s Exhibit 11,
taken during this meeting read as follows:

Dan Gayman - [sic]
Pretty much done with U –
don’t intend to do any more.
Leave it where it is

Joke about knives.

Attended 3 meetings – won’t
attend any more. Disgusted with it.

…. [end of page two of General Counsel’s Exhibit 11 which is a copy of King’s
handwritten entries on a page of his notebook with a portion redacted]

Won’t be a future problem –
I’ve pretty much relinquished
everything. [page three of General Counsel’s Exhibit 11 which is a copy of King’s
handwritten entries on a page of his notebook with a portion redacted]
the Company, the Chairman, the COO, and the CEO.
4 At the trial herein it was determined that the employment history that Callahan gave in his
1996 DTR application for employment, Respondent’s Exhibit 1, was not correct in that while he
indicated that he worked for two named companies in 1990, he was in fact in prison (from 1986)
for “Agg Burglary,” was paroled on “11-08-91,” and his “Final Release” occurred on “12-04-92.”
See Respondent’s Exhibit 4 which is a Certification of Record from the State of Ohio
Department of Rehabilitation and Correction.

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King testified that he thought that the meeting took place on July 22 after 7 a.m.5

Gahman testified that in the beginning of August 2002, the morning after he attended a
union meeting at the hotel in Bluffton, King spoke to him about union activities; that the
discussion took place in the conference room at DTR; that he, King, Helms, Laura Crisp, who is
Safety Director, and Byglin, who is the third shift Human Resources Specialist, were present;
that King said that he was aware that Gahman was an outspoken supporter for the UAW and
had attended union meetings; that King said that several things had been brought to his
attention about Gahman’s behavior that he did not approve of; that King said that he had heard
that Gahman had sharpened a knife for an employee in trade for the employee signing a union
authorization card, and Gahman refused to install a fan for an employee who did not support the
UAW; that he told King that he did sharpen an employee’s knife as a favor to the employee and
after he sharpened the knife, he talked to the employee about the Union and the employee did
sign a union authorization card; that it was not a trade off; that he told King that he could check
the computer record and he would see that he, Gahman, installed all of the fans that were
requested; that King said that he “wasn’t happy with my support … of the UAW, and he thought
there was good people working there and the UAW would be a bad thing for them … [a]nd if he
didn’t hear anymore reports about my support and the UAW or openly supporting the UAW, that
there would be no further mention of the allegations that he brought up” (transcript page 181);
that King then said that “if he continued to hear reports about my UAW support that there would
be disciplinary action for the knife incident and the fan incident” (Id.); that he told King that “it
wouldn’t be a problem because I had come to a decision to discontinue my support for the UAW
and, … that I would no longer be involved with it one way or another so that he wouldn’t be
getting any more reports about me and UAW activity” (Id.); that at the union meeting the day
5 The ellipis in the above quoted material is a line at the bottom of page two of General
Counsel’s Exhibit 11 which reads as follows; “Wayne Harrison articles.” It is not clear what this
refers to. Page one of General Counsel’s Exhibit 11 are the following notes of King which he
testified he took between 6:30 a.m. and 7 a.m. on July 22:
7/22/2 – 6:30A – Tom King
Kevin Phillips, Dave Byglin, Bill Yokas
7/17
Wed AM after 1st break
Dan Gayman [sic] approached
Kevin in break room in
front of other people – asked
him & girlfriend to sign card.
Other guy signed after Dan
sharpened fish & filet
knives.
zone D woman
Gayman [sic] felt he had better
than 50% of 3rd & good amount
of 1st shift. Can’t get 2nd
shift going.
King testified that he believed the reference to the zone D woman referred to Kevin Phillips
telling him that the woman complained that Gahman would not install a fan unless she signed
an authorization card. King did not know the woman’s name. Those portions of King’s notes
between the divulged entries for the meetings with Phillips and Gahman and after the divulged
notes for Gahman’s meeting were redacted by the Respondent.

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before he bragged about his methods to get people to listen to him; that more specifically he
bragged about sharpening an employee’s knife and then told the employee about the Union and
got him to sign a union authorization card; that at the union meeting he also spoke about a
female employee asking him why she could not have a fan installed in her area, and later,
during break, he told the employee that if they had a union, they might be able to get a fan for
every employee like a UAW Ford plant; that at the time there was no work request to install a
fan in her area so he did not have the authority to install a fan for her; and that before this he
believed that union meetings were confidential.

On cross-examination Gahman testified that King opened the meeting with “[I]t’s been
brought to my attention” (transcript page 229); that he has sharpened knives many times; that
the knife sharpener that he used was his own that was bought for him for Christmas; that he did
sharpen the knife at issue on Company premises; that he had been doing it for all the years that
he worked at DTR; that King said that it had been reported to him that Gahman told one or more
employees that he would not install a fan unless they signed a union authorization card; that he
told King this was not true; and that he understood King to then say that if he heard any reports
about him supporting the UAW, King would discipline him.

When called by the Respondent, King testified that he received information from an
employee through several supervisors that Gahman was organizing during working hours on the
plant floor, disrupting other employees by attempting to persuade them to sign authorization
cards while both Gahman and the other employee were supposed to be working; that he told
the supervisors that he wanted to meet with the employee to hear the information himself; that
he had a meeting with the third shift employee, Phillips, who told him that (1) Gahman
inappropriately in front of other people tried to get him and his girlfriend while they were in the
cafeteria to sign authorization cards, (2) he heard that Gahman sharpened a knife for an
employee and in exchange the employee signed an authorization card, and (3) he heard that
Gahman was telling people that (a) if they signed an authorization card, he would install a fan
for them, and (b) if they did not, he either would not install a fan or the installation would be low
priority; that General Counsel’s Exhibit 11 are his notes of the meeting he had with Phillips on
July 22; that, with respect to Gahman’s solicitation of Phillips signature on an authorization card,
Phillips told him that he did not like being interrupted on a break; that later that same day he met
with Gahman, with Bill Yokas, Helms and Byglin present; that he asked Gahman about what
another employee had told him he heard; that Gahman volunteered that he was disgusted with
the Union, he had attended three union meetings, and he is not going to be involved anymore;
that Gahman denied the allegation about the fan installation but admitted sharpening a knife,
and said that he did it all the time; that he told Gahman that he could not sharpen personal
knives for anyone on DTR’s property with its equipment during working hours because it creates
substantial liability and risk for DTR, and uses time he should be performing his duties; that he
did not tell Gahman anything about the fact that he knew that Gahman was attending union
meetings; that he did not tell Gahman that if he did not engage in union activity in the future, he
would not be disciplined for the knife sharpening; and that he did not make threats of any kind to
Gahman regarding the events that were reported to him. On cross-examination King testified he
assumed that the complaining employee was on his break when Gahman solicited his signature
on a union authorization card; that he did not speak with the employee who had his knife
sharpened or the employee who allegedly complained about the fan; that after speaking with
Gahman, he had Byglin and Helms check the records with respect to fans and they did not find
anyone who wanted to come forward and say the alleged fan incident happened; that he did not
think the complaining associate knew the name of the woman in zone D who complained about
a fan; and that the only report that he had about Gahman engaging in union activity during work
time was from Phillips.

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Callahan passed out union leaflets outside of DTR’s facility three times. The first time
was In mid-August 2002 when he passing out leaflets from 6 a.m. to 6:45 a.m. He was standing
on the outside of the west parking lot on the main road with two other employees and two or
three UAW representatives. A police officer came to the site and he indicated that he just
wanted to make sure that the people handing out leaflets knew where they were supposed to
stand.

Approximately two weeks after he first handed out union leaflets outside of DTR’s
facility, Callahan did it for the second time. King drove by while Callahan was 3 feet behind
someone who tried to give King a union leaflet.

On Monday August 26 Desmond Williams, who is a group leader, assigned Callahan to
Assembly Line 3.6

On August 27 at about 9 a.m. Williams told Callahan that parts were coming out at a bad
angle and he should set the parts down at a different angle when he took them out of the
machine. The operation Callahan was performing that day involved putting a piece of hose on a
machine, which machine then coats the inside of the hose with an adhesive and inserts a metal
piece on each end of the hose. Callahan then took the hose attached to the two metal pieces
out of the machine and placed it on a bar at a certain angle to allow the adhesive to set. After a
set period of time had passed, Callahan would crimp both metal ends over the hose and place
the part in an oven to cure the adhesive. About 11 a.m. Williams told him that the parts were still
coming out at a bad angle. Callahan testified that Williams spoke to him three times that day
about bad parts, finally asking him if he had problems or was anything wrong with him; that he
had been setting the parts on the bar exactly the way Williams wanted him to set them; and that
after the third time he did not hear from Williams again that day.

On August 28, according to Callahan’s testimony, Williams approached him about 11
a.m. and told him that the parts were coming out at a bad angle. Callahan testified that he told
Williams that they needed to get the set up guy, Dan Staley; that when Staley came to the
machine Callahan assembled a part, while Staley stood there, and he handed the part to Staley
who put it in the inspection jig and determined that it was not within specifications; that they did
three more parts and each time the part, when placed in the jig, did not meet specifications (It
did not fit properly in the jig.); that he told Staley to handle the part himself when it came out of
the machine so there would not be any question about the way Callahan was handling the part;
that Staley told him “that it was the machine, … to go to lunch, … he would get a production
supervisor to look at it” (transcript page 115); that Williams was not present while he and Staley
were running parts; that he went to lunch and when he returned Staley, in Williams presence,
told him when the part came out of the machine he should rotate it at a 180 degree angle and
set them down; and that he followed this procedure the rest of the day.

On cross-examination Callahan testified that once the part is crimped he does not put it
directly in the curing machine but rather he puts it in the chuck which drops it in the oven; that
he did not recall there being any sensors in the chuck to determine if the part has been crimped
properly; that as long as the part fits in the hole on the chuck, it blocks the sensors and the part
will be dropped into the curing oven; that the part is in the curing oven for 80 minutes; that when
the part comes out of the curing oven it is pressure tested by other employees; that the part is
put is put back in another oven to dry it off from the water test; that he was told that the parts
were bad but he was not told that the angle on the small metal piece was not within
6 Crisp testified that a group leader is a first level supervisor.

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specifications; that the involved part is a high pressure fuel hose; that he made the part on
hundreds of occasions prior to the two days in question; that the only difference between line 2
and line 3 with respect to this part is that one is left handed and the other is right handed; that in
the past he has made some bad parts but he never made 500 bad parts in the past; that there
was a situation where the metal was bad and there were “thousands of bad parts” (transcript
page 144) run, and this was the time that someone had sent bad parts to Honda and Risner
called him while he was on vacation and asked him to run the parts for Honda; that in that
situation the larger piece of metal was bad7; that on Monday August 26 he did not have a
problem with the same part; that the part is placed on the bar to make sure that as the adhesive
sets the angles of the metal to the hose are correct; that he was given a one point lesson on
how to support the smaller metal block, part 01-291, (which at that point is attached to the hose,
the other end of which is attached to the large metal block) on a bar so as to avoid producing
“bad angles,” Respondent’s Exhibit 5; that on August 27 he was told that he made bad parts in
the morning and after lunch as well; that on August 28 he started making good parts after lunch;
that

Now I’m fast at this. I’m the best at this area, this job. There’s nobody who can put out
parts quicker than I can and I can do those three [on the bar – the one point lesson
indicates that “AT LEAST 3 TO 4 PARTS SHOULD BE RAN AHEAD TO GIVE GOOD
SET UP TIME, ” Respondent’s Exhibit 5] before they dry and I’m thinking as I’m
grabbing them and doing them, they’re not having time to dry because I, I am pretty
quick at it.

I’ve got to be real good and the more I think about it, I think that‘s what the
problem is. When I grab them I go, I move quick. This machine is a little slower than Line
2 and you have to get a thousand parts out a day[;] [Transcript page 152]

that he told his supervisor, Williams, the second day that the machine was a little slower and he
happened to move a little faster; that he thought that he made more parts on August 27 and
August 28 then he did on August 27; that there were no problems with bad parts after Staley
looked at the machine; that in a letter he gave to the Board in the course of the investigation of
this case he indicated that he ran the involved Line 2 machine 20 to 25 other times; that he
made the involved part hundreds of times; that there are bad parts every day; that he did not
recall ever making 500 bad parts, not even on August 27 and 28; that he never told Williams or
King that he thought that the problem was that he was working too fast, but he did tell this to
peer review; that the Company never told him what the problem was with the bad parts; and that
they did tell him that it was a bad angle but they did not tell him if it involved the small block or
the large block side.

On redirect Callahan testified that Williams told him that the part was coming out at a
bad angle; that Williams showed him how to lay the part on the bar, namely the tip of the small
7 As noted above, a piece of metal is attached to the two ends of the hose. See
Respondent’s Exhibit 2. Both pieces of metal are hollowed, metal blocks with two pieces of
tubing (small pipes) extending out from the blocks. Those tubes which connect with the two
ends of the hose have an attached crimping collar or sleeve so that the tube goes inside the
rubber hose while the crimping collar or sleeve attached to the tube goes outside the rubber
hose. Both pieces of tubing which connect to the rubber hose are bent at an angle to the
hollowed metal block from which they extend. The larger metal block has a mounting plate
attached to it. And the smaller block appears to have a mounting hole drilled through the block
itself.

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block, and he told Williams that is how he had been doing it; that he went to lunch and when he
returned Williams and Staley told him to lay the part on the bar at 180 degrees different than he
had been doing so that now the big block was on the bar instead of the small block (This is
contrary to the placement of the part on the bar set forth in the above-described One Point
Lesson, Respondent’s Exhibit 5.); that pursuant to these instructions he placed the big block on
the bar and there was no trouble for the next day and a half; that a One Point Lesson took about
1 minute to read, sign, and pass on to another employee at the morning meeting; and that he
did not recall the One Point Lesson received as Respondent’s Exhibit 5.

Williams, who worked for DTR for over 6 years and is a group leader in hose assembly,
testified that he had been a group leader for 4 years and had been in hose assembly for 18
months at the time he testified at the trial herein on December 17, 2003; that he made the
involved part during his training program when he came over to hose assembly; that an
assembly machine is used to connect the two metal parts at the ends of the hose; that the
machine places glue inside the hose and then takes the two metal blocks and inserts them in
the hose; that the assembler then places the assembled part on a blue bar in front of him so that
the correct angle is maintained during the setting process; that the assembler should have
between three and five assembled pieces on the bar; that the assembler then slides the parts
along the blue bar, taking the part that has been resting on the bar the longest and he crimps
the sleeves at both ends; that the assembler then puts the crimped part into a chuck which
verifies that both ends are crimped and places the part in heat treat where it stays for about 80
minutes to make sure the adhesion is set in place8; that after the heat treat, the part goes
through a high pressure water leak test; that the part then goes inside a dryer and then to final
inspection; that, as here pertinent, the final inspector inspects the angles in a check fixture; that
Respondent’s Exhibits 2 and 24 through 30, collectively, are pictures of the involved part before
it is assembled, good and bad assembled parts, the check fixture, and five of the assembled
parts on the blue bar; and that the small metal block always is the one to rest on the blue bar.

With respect to Callahan, Williams testified that on Monday August 26 Callahan was
working on line 2 and he did not have a problem with the involved part; that on Tuesday August
27 Callahan was working with the same part but on a different line, line 3, than Monday August
26; that about 8:30 a.m. on August 27 his final inspector Janet Schrader, who was being trained
by Rick Stewart, reported to him that she was receiving bad angles; that the shift began at 7
a.m.; that he spoke to Callahan and showed him how to lay the parts on the bar; that about 1.5
hours later Schrader reported to him that she was receiving bad angles again; that he spoke to
Callahan again and Callahan repeated a statement he made during their first conversation
namely, that he thought that the problem had to be with the inspector; that the rejected parts
were then reinspected by Williams’ person in charge, Jerry Blossard, who was an experienced
inspector; that Blossard reported to him that out of 142 parts made by Callahan, 137 were bad;
that he spoke with Callahan again asking him if there was any problem other than work causing
him to make bad parts; that after lunch Callahan made good parts for the rest of the day and
nothing had been changed on the machinery; that assemblers on the shifts before and after
Callahan’s August 27 shift made the same part on the same machine and they did not have any
difficulty in making good parts; that about 8:30 a.m. on the morning of August 28 Stewart and
Schrader reported to him that they were getting really bad parts after the shift change divider,
which were Callahan’s parts; that the parts were so bad that it was not just a matter of not using
8 A video tape was received in evidence as Respondent’s Exhibit 22, which shows the involved
process up to the time the part is placed in heat treat. Williams testified that if the part is not
crimped, an alarm goes off and the door to the heat treat will not open; and that once the part is
crimped the metal ends are set in place.

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the bar properly but rather the assembler would intentionally have to twist the part; that he
spoke to Callahan, telling him that the angles were worse than yesterday; that he himself ran
two parts, marking them with white marks; that 90 minutes later the inspectors reported to him
that they received the two parts with white marks and they came out good but Callahan’s parts
continued to come out really bad; that there were about 350 bad parts; that he told his
supervisor, Rick Huffer, that an extraordinary amount of bad angles came off line 3, and Huffer
told him to check into it; that he told Callahan to stop running the process; that he had never
seen so many bad parts; that Callahan said that he thought that the assembly machine was not
working properly; that if this was the case he himself would not have been able to make two
good parts; that he called his set up man, Staley, who repairs machines, and had him look at
the fixture, and he got the production engineer for that area, Doug Caldwell; that Staley, who is
an hourly employee, checked the fixture while he watched; that they had the check fixture with
them to make sure the angle was correct; that at the start of every shift the assembler is
supposed to use the check fixture to check the first part; that if he was making bad parts on
August 28, he should have caught it when he used the check fixture on the first part; that when
Staley checked the parts that he made on the check fixture he found that they were good; that
Caldwell could not find any problem with the check fixture; that neither Staley nor Caldwell
found anything wrong with the machinery; that neither he, nor Staley, nor Caldwell made any
changes to the machinery; that Callahan was at lunch during the inspection process; that when
Callahan came back from lunch he made good parts the rest of the day; that on the really bad
parts he concluded that Callahan had to intentionally turn the part to take it so far out of
specifications; that the assemblers who worked on the two shifts after Callahan making the
same part on the same machine did not have any problems; that on August 29 Callahan made
good parts all day; that his supervisor told King about the situation; that sometime that week he
and Huffer met with King; that he thought that during this meeting he said that the assembler
had to be forcibly turning the parts for them to come out that bad; and that General Counsel’s
Exhibit 9 are his planner notes which were made on the dates indicated.9

On cross-examination Williams testified that before he worked in hose assembly he
worked in hose metal which is the department which makes the parts for hose assembly; that
bad parts are cut up and scrapped so that they are not sent out by mistake; that on August 27
the first time he spoke with Callahan about 8:30 a.m. he showed Callahan how to place the part
on the bar and he stood there for a few minutes and watched Callahan place the parts on the
bar, but he did not see Callahan place the parts in heat treat; that before lunch on August 27 he
again showed Callahan how to place the parts on the bar and he stood there for a few minutes
and watched Callahan place the parts on the bar, but he did not see Callahan place the parts in
heat treat; that he did not have any documents with him to show that (1) the assemblers who
worked second and third shift making the same part on the same machine made good parts, or
(2) Callahan made good parts after he asked him if he had any problems outside work on
August 27; that in his planner notes, General Counsel’s Exhibit 9, he does not indicate that
Callahan made good parts after he asked him if he had any problems outside work on August
27; that his planner notes for August 28 do not indicate that Callahan made good parts on
August 28; that his planner notes do not indicate that Blossard inspected parts and found five
9 An entry for August 27 reads: “Callahan fault 130 pcs. of bad angles @ $12.50.” And the
following entries were made for August 28:
Conversation w/ John Callahan about angles being worst [sic] than the 137 pcs.
scrapped yesterday. Parts so bad that small … [end] not even touching block. Informed
him on how it should be set on the bar.
….
Rick informed H.R., Steve U,, Bill Y. Tom King about the situation.

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good parts; that on August 28 after he spoke with Staley and Caldwell, he told Callahan, when
he returned from lunch, that the machine was okay to operate and to make sure that he used
the bar; that he could not recall if Staley and Caldwell were at the machine when Callahan
returned from lunch on August 28; that he believed that he saw Callahan making parts after
lunch on August 28; and that he knew that Callahan was a supporter of the UAW in that he saw
him out in the parking lot.

On redirect Williams testified that he and Blossard cut Callahan’s bad parts up and
disposed of them so the bad parts would not get to DTR’s customers; that this is normal
operating procedure; and that on August 27 between 50 to 100 of the parts were really bad.

Subsequently Williams testified that even if the hose were placed at a 90 degree angle
to the bar, the angle should not be bad if the small metal block was properly resting on the bar;
and that the part of the machine which holds the metal blocks during the assembly process
cannot move.

Staley testified that he has worked at DTR since 1992 and he is a setup person; that on
August 28 Blossard asked him to look at the machine that Callahan was using; that he is the
first person to look at a machine if there is a problem; that the first thing he checked on the
machine Callahan was using was the MM (adhesive) flow which was okay; that he took a part
from the assembly machine, laid it on the bar, crimped it, and checked the angles on it in
Callahan’s presence; that the angle was a couple of degrees off; that he then looked to see if
anything was loose thereby allowing movement; that the metal and the hose are clamped down
when they are inserted so there is no movement; that he could not find anything wrong with the
machinery and he did not make any adjustments to the machinery; that he then got Caldwell, an
engineer, so they could get engineering involved; that they were having a problem with the
angle of the small metal block end and they looked at the fixture in the machine to see if there
was abnormal wear; that he and Caldwell did not find anything wrong with the machinery or the
fixtures and they did not make adjustments of any kind; that Callahan was there when he and
Caldwell checked out the machine and fixture, and they could not find a problem; that on
September 4 [Tuesday of the following week (transcript page 504)] King asked him if he
checked out the machine; that King asked him to take him through what he did to the machine
step by step, and he told King that there was nothing wrong with the machinery and no
adjustments were made; and that he did not know why bad parts were being made. On cross-
examination Staley testified that it was before lunch when Blossard asked him to look at
Callahan’s machine; that the part he made touched the blue nylon on the check fixture which
meant it was a bad part; that when he could not figure out why he was having bad parts he
called Caldwell; that he did not know how many parts he made; that when he and Caldwell
looked at the machine he did not recall Williams being present; that he made one or two bad
parts and then he got the engineering department, Caldwell, involved; and that he and Caldwell
concluded that

[I]f you laid the part down, at a 90 degree angle, to the bar, you could have …
one or two degree angle, that the angle would be off.

But, we found that if you laid it basically at a 45 degree angle, to that bar, and let
it set up, you would be okay. the parts were good. [Transcript page 510]

Staley further testified that he could not recall if he spoke with Callahan after Caldwell arrived at
Callahan’s work station; that he would have to say that he and Caldwell talked to Callahan on
how to place the part on the bar; that he was aware of the fact that this was not the first time
Callahan made this part; that it would appear that Callahan would, therefore, have known the

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angle before the day in question; that he spoke with King after Labor Day; that he was on
vacation on Friday August 30 and he had a message that King wanted to speak with him about
the Callahan situation; that he telephoned King who told him that he knew he was on vacation
and they would talk when he got back to work; and that he returned to work on Tuesday
September 3. Subsequently Staley testified that he checked the left side of the machine
because that is the side which involves the small metal part (block); that they were having the
angle problem on the small metal part end of the hose; that while the angle of the large piece, if
it was inaccurate, might affect the remainder of the piece, DTR still used the same fixtures,
unmodified, at the time of the trial herein; that he did not check the right side of the machine
which temporarily houses the large metal block because his concern at the time was the small
side; that when the assembler hits the start button, the first movement is for brass clamps to
hold down the metal parts in place in the fixtures in which they are sitting; that the clamps have
a sensor which requires a contact to be made in order for the machine to proceed; and that the
contact is determined by stroke length.

At the 7 a.m. monthly P/A meeting in August 2002, according to the testimony of
Respondent’s employee Rita McVetta, King spoke to the 40 or so assembled employees, telling
them that “the sole source suppliers we were and that if we got Union into the plant that they
wouldn’t probably do business with us and we wouldn’t have jobs.” (transcript page 15) The
president employees meetings are held once a month. On cross-examination McVetta testified
that she attended a union meeting away from the Respondent’s facility “where a man spoke
who identified himself as the President of a Union that supplied goods to Honda” (transcript
page 19); that she could not recall if the union meeting occurred before King spoke to the
employees at the August 2002 president employees meeting; that she could not say whether
the speaker at the union meeting talked about the fact that Honda would not care whether DTR
was the sole source supplier; that at the August 2002 president employees meeting King said
that sole source meant that for a number of customers DTR was the only provider for a number
of parts; that she knew that DTR is the sole source provider to many of its customers; that most
of DTR’s customers are “just in time,” which means that the customer needs parts when they
are scheduled; that King said that “if we got a, had a Union in the plant that they would not do
business with us” (transcript page 22); and that in her affidavit to the Board she indicated that
King said “[I]f we had a Union in there customers would not want to deal with us because of the
Union” (transcript page 24).

James Lehman, who has been an employee of the Respondent for over 14 years,
attended a 2;35 p.m. P/A meeting in August 2002. He testified that there were about 30
employees at the meeting; that King told the employees that there was a third party trying to
organize, the employees had the right to choose whether they wanted third party representation,
and there were some facts he thought the employees needed to know; and that King told the
employees that if they unionized, they “would lose sole supplier source from Honda and Toyota
and if this happened there would be a reduction of jobs and therefore Honda and Toyota could
no longer rely on us as source suppliers” (transcript page 33). On cross-examination Lehman
testified that he attended union meetings but that he did not recall a meeting in July or August
2002 where a man presented himself as a Honda Local Union President; that the Union never
talked to him about the sole source issue; that Honda and Toyota are two of the biggest DTR
customers, DTR is the sole source for the rubber parts that it supplies to Honda and Toyota,
DTR is a just in time supplier for Honda and Toyota, and an interruption in DTR’s production
would cause a problem for Honda and Toyota; that it is his understanding that DTR has been
fined for interruptions in the just in time system; that King pretty much said that if Honda and
Toyota or any other customer became concerned about the reliability of DTR’s production flow,
then those customers would look for other sources; and that King said that if the customers
pulled some business away from DTR because of fear of reliability, that would mean that there

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would be less work and fewer jobs at DTR.

According to his testimony, on August 29 Callahan ran the same part and no one said
that the parts were bad. Callahan testified that about 3 p.m. Williams asked him to come to the
office; that he saw King and Huffer in the office and he told Williams that he wanted to get
someone to sit in with him; that King raised his voice and said that he should not have walked
out to get someone to sit in on the meeting with him, he should have asked and management
would have gotten someone; that King asked him why were the parts being made bad; that he
told King that he did not know, he had been at DTR for 6 years and he had never had any
trouble with bad parts; that he told King about Staley, and King said that they were not bad parts
the day before; that he got upset, was a little loud and yelled because he was being accused of
something he did not do, and he knew that he did not do it; that he told them that he came in
while on his vacation just a couple of weeks age and worked on a Sunday; that he swore on
both of his kid’s lives that he did not do this on purpose; that King said “well you sound like you
got an attitude problem and you’re the type we don’t need here” (transcript page 118); and that
King said that he was going to investigate further and he would get back to him the next day. On
cross-examination Callahan testified that when King asked him what happened he did not tell
King that he was working too fast; and that he used the same machine on August 29 that he
used on August 27 and 28 and he did not have any problems with bad parts.

Williams testified that he attended a meeting with Callahan, King, Huffer, and employee
Sheen Mitchell, who Callahan brought to the meeting; that King talked to Callahan about the
bad parts and said that they were going to investigate further; and that Callahan did not offer
any explanation.

Gahman, who worked on the third shift, testified that in August 2002 he attended a P/A
meeting at which King said as follows:

… he explained to us that we had a sole supplier deal going with some of our customers
where we were the only company that made particular parts for them, and said that if the
UAW was to get into DTR that we would lose that sole supplier status … because the
companies would no longer feel confident with us being their only supplier because the
UAW would make us more unreliable.

And so they would allow other companies … to compete with us for some of the
parts that we were making. And he stated that if that happened it would result in layoffs
and DTR had never laid anyone off he said he, in the time that they’d been a company,
but if the UAW came there that that policy would … have to change. [Transcript page
185]

On cross-examination Gahman testified that he had very little knowledge about DTR’s
customers or their policies since that was not part of his job; that he understood what King said
about sole source and the Just in Time inventory system where the customer did not have a
large inventory that they could use if there was any interruption in the flow of parts from DTR;
that King said that customers would be concerned if there was a union at DTR and the
possibility of a strike; and that King said that there would be layoffs if customers pulled part or all
of their business out of DTR.

When called by the Respondent, King testified that he has been involved with DTR since
1989, he was present for the union organizing effort in 1989 and the resulting litigation, he
attended the original hearing in 1991-1992, he went to the Sixth Circuit Court of Appeals for the
argument in that case, and he knew that one of the major issues in that case was the sole

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source issue; that DTR’s customer base consists of Tier I business, namely, Japanese
transplants10, Ford Motor Company, and previously Chrysler, and some Tier II business with
some other suppliers in the automotive industry; that Japanese transplants account for 95
percent of DTR’s business; that just in time is part of the Toyota production system whereby the
part must be delivered at a specific time and not early or late; that virtually all of its customer
base uses just in time; that he knew and reviewed DTR’s sole source statements which were at
issue over 10 years ago; that he was familiar with the Sixth Circuit Court of Appeals decision
regarding DTR’s use of sole source statements to employees; that he decided to insert the sole
source issue into the campaigning in 2002 because DTR wanted to make sure that the
employees understood what sole source supplier meant and its value to the business and to the
employees’ jobs; that additionally, he had received a report that at a union meeting a person
who said that he was the president of a UAW local in the Cleveland area that was a supplier to
Honda told DTR employees that they should not worry about being unionized, the supplier to
Honda was unionized; that in his mind it was the Union that first raised this issue: that he made
substantially the same presentations at all of the August 29 P/A meetings; that at the meetings
he defined the sole source supplier11, said that many of DTR’s customers give it 100 percent of
their business regarding specific parts and this gives DTR a great deal more business than it
otherwise would have; and that he told the employees

I’m bringing up this issue because you need to understand the impact of this. We all
know that there’s union organizing going on here. You have to be blind not to
understand that this is happening.

And we consider it … not only our right but our responsibility to make you aware
of the consequences of possible union organization on our sole source supplier status.

….

We currently enjoy our sole source supplier status. If the … [employees] at DTR
should decide to be represented by a union, and that’s entirely your choice, you have
that right under the law to do that, I am not attempting to infringe on that right at all, but if
you decide to do that you have to understand that our customers will most likely re-
valuate our position with them in relation to the sole source supplier status.

….

It’s just common sense. …. Our customers are smart. They run successful
businesses because they’re smart.

And if they look at DTR and see that we are now represented by a union and
there is the potential of a work stoppage, they cannot afford to have any one company
control their business.

So they will re-evaluate as to whether or not we ought to continue to enjoy our
status as a sole source supplier. I can’t say what’s going to happen. I - - I have no way to
predict what they are going to do. But they are going to review our status, that’s for
certain.
10 Mazda, Subaru, Isuzu, and the joint venture between Toyota and GM.
11 King testified that roughly 75 percent of DTR’s sales revenue comes from sole source
business.

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And it may come to the point where they would decide that they are in too
vulnerable a position to allow us to be the sole source supplier of that product and they
could give part or all of the business to somebody else.

We don’t know how they would divvy it up, if they would divvy it up. But that risk
is there.

King further testified that prior to making this presentation he checked with DTR’s attorney,
James Ryder, to make certain that the law in the Sixth Circuit had not changed and he could
make this type of presentation without violating the law; that implementing the just in time
system is complicated; that customers come to the DTR facility frequently to work on the just in
time system; that DTR’s view that the customers would review the sole source status is based
on DTR’s dealing’s with its customers closely on the just in time system; that he told the
employees that they were DTR’s most valuable resource, DTR wants to protect jobs, and DTR
was not making threats that they were going to lay anybody off; and that if customers take
business from DTR, it’s hands may be tied. On cross-examination King testified that he received
the report about an individual who spoke at a union meeting from an employee the Monday after
the meeting; and that the employee also told him how many employees were there. On redirect
King testified that the employee volunteered the information about the union meeting.

According to his testimony, on August 30 Callahan started work at 7 a.m. and at 9 a.m.
Williams called him into the office with King, and Huffer. Callahan testified that King said “we
don’t need your type running the machinery here anymore. I want you to turn your time card in.
You can talk to your wife on the way out, tell her you … can pick her up and you’ll hear from us
in the mail shortly.” (transcript page 118); and that he asked them if they had spoken with Staley
and they said “yes.” (Id.). On cross-examination Callahan testified that at the time of the trial
herein his wife still worked for DTR.

When called by Counsel for General Counsel, King testified that he recommended
Callahan’s termination to Steve Under brink, who is the Director of Manufacturing, Yokes, who
is Vice President of manufacturing, Fajiwara, who is Chairman and CEO, and Okata, who is
President and COO. According to King’s testimony, he believed that Callahan purposely and
intentionally produced scrap parts and even if he did not, he was certainly guilty of gross
negligence in the performance of his duties. King testified that supervisors Huffer and Williams
told him on August 27 that they were having a problem with production and Callahan’s
performance; that they told him that Callahan was running an extraordinary number of bad
parts; that on August 28 he attended a meeting with Underbrink, Huffer, and Williams about this
situation and they reviewed it; that at this meeting Williams said that Callahan produced good
parts on the afternoon of August 27 and then on the morning on August 28 Callahan began
producing bad parts which were even worse than the day before; that later on August 28 he met
with Callahan, Underbrink and Williams; that Callahan denied that he made bad parts, he
claimed that Staley, who is the set up person in Callahan’s department, understood why
Callahan was running bad parts, and he asked King to talk with Staley; that in fairness to
Callahan he spoke with Staley on August 29; and that he saw General Counsel’s Exhibit 8 but
he did not recall when he first saw it and he did not recall if it was one of the documents that he
relied on to make the decision to terminate Callahan.12
Continued
12 The exhibit is a one page document which is signed at the bottom by Williams. The first
half is dated August 27 and reads as follows;
Final Inspection (Janet Schroeder) tells me that she was receiving 01291D with Bad

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_________________________

When called by the Respondent, King testified that on Tuesday August 27 Huffer
reported to him that Callahan was running an incredibly large number of bad parts, way beyond
anything DTR had experienced before in that area, and Huffer did not know why; that on
Wednesday August 28 about lunch time Huffer with Williams told him that Callahan had run a
significant number of bad parts; that they told him that after Williams spoke to him on Tuesday
Callahan ran good parts but he ran bad parts Wednesday morning and they were even worse;
that he had a meeting at 3:30 on August 28 with Huffer, Williams, Callahan, and Mitchell; that he
told Callahan that he thought he was doing it intentionally, and Callahan denied this; that
Callahan told him to talk to Staley, who knew what was wrong; that he told Callahan that he had
not talked to Staley but he would talk with Staley before he went any further; that during the
meeting he told Callahan that instead of just bringing in another employee, Mitchell, he should
have come into the meeting alone, asked if it was an investigatory interview, request a
representative, and then management would have the option to agree or just cancel the
meeting; that he told Callahan that he did not have the right to pull someone off her job without
getting permission from management; that Staley had already gone home; that he believed that
he talked with Staley on August 29 between P/A meetings; that Staley told him that there was
nothing wrong with the equipment, the jigs and fixtures, they talked about how to use the bar
and Callahan knew how to use it, but otherwise he did not see that anything was wrong; that on
Friday morning he met with Williams, Huffer, Keith Caudill, Steve Underbrink, and Yokas; that
they determined the problem had to be an operator issue and he concluded that it had to be
intentional; that he recommended to senior management that Callahan be terminated; that he
angles.
Told John Callahan of the situation and that he needs to watch his angles. Said he didn’t
know what could be causing the problem, but it might be the inspector.
Later on she said that she was still receiving bad angles. I went to John showed him how
to sit the parts on the bar.
Jerry Blossard said he inspected 142 pcs, found 5 pcs good.
Took John off to have a one on one conversation about what could be the problem. Told
him this was unusual for him. He said he has been running this for three years and doesn’t
know what the problem could be. I asked was there anything bothering him and if so is there
anything I could do to help. He said no, nothing at work. I let him know how many bad ones
were run.
Continued to build for the rest of the day with no problems.
The remainder of the document is dated August 28 and reads as follows:
Shortly after 8:30 am was informed by Final Inspection that they were receiving bad
angles right at the shift change divider. I immediately told John about it. Once again showed
him how to lay the parts on the bar. I marked 2 pcs with white marker on how they should
be. Told him to lay his parts like that and continue to build.
Later Rick and Janet both informed me that his parts were still coming out bad after they
received the 2 parts with white marks (both good pieces). At this time I told John not to run
anymore until Dan Staley (set-up) looked at it. He did this around 11:15 am. John said it was
the assembly fixture.
During his lunch period Dan, Doug and myself looked at the process. Did some test
samples on how to lay the parts and tried to recreate the bad angle. Came to the conclusion
that there was nothing wrong with the fixture, but it was the way the parts were being laid on
the bar after assembly. Moved the bar to a distinct location and turned the pieces at an
angle. We then took digital photos … of proper bar placement.
…. [Photo omitted]
He ran good parts for the rest of the day, ended up with 346 bad angles.

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met with Callahan on Friday morning August 30, with Huffer, Williams, and possibly Jean Ream
present; that he told Callahan that they had concluded that he purposely made bad parts, he
should leave the premises, and he would be advised regarding his status; that he did not tell
Callahan the he did not want people like him around DTR; and that senior management decided
to terminate Callahan because they concluded that it was intentional. On cross-examination
King testified that when Huffer told him on August 27 that Callahan had run 137 bad parts it was
either late morning or after lunch; that DTR’s employees are not trained on how to ask for a
representative in a disciplinary meeting; that he did not recall that Staley said that he had
spoken with Callahan; that Staley may have said that he spoke with Callahan; that “[o]kay yes”
Staley told him that he talked to Callahan about how to place the parts on the bar (transcript
page 482); and that he did not recall how long his meeting with Yokas, Williams, and Underbrink
on August 30 lasted but it was held before he met with Callahan around 9 a.m.

By letter dated September 6, General Counsel’s Exhibit 18, King, as here pertinent,
advised Callahan as follows:

This letter is official notification of the termination of your employment from DTR
Industries, Inc. effective today, September 6, 2002.

The period between August 30 and September 6, 2002 is considered a suspension
without pay.

On September 11 Callahan requested peer review of his termination, General Counsel’s
Exhibit 19.13 The peer review panel hearing was scheduled for September 17. Gahman
testified that he knew Callahan because Callahan worked on the third shift when Gahman first
started working at DTR; and that by letter dated September 11, General Counsel’s Exhibit 21,
he was advised that he was selected to participate in a Peer Review on September 17.

With respect to the peer review procedure, King testified, when called by Counsel for
General Counsel, that if an employee requests peer review, which is available only with regards
to a termination, it is King’s responsibility to make certain that the proper process is followed to
select the peer review panel, schedule the peer review meeting, he functions as a facilitator with
the peer review panel members, he distributes the ballots when the panel members are
prepared to vote, he counts the ballots, and he reports the decision to the employee and the
Human Resources Specialist who presented the case for the Company. King also testified that
he does not have a vote in the peer review; that the terminated employee picks ping pong balls
with numbers on them to select members of the peer review panel; that after the members are
identified based on the number on the ping pong ball, the terminated employee has the right to
eliminate one of the employee members chosen and one of the management members chosen
so that there are three employees and two management members on the panel; that he attends
all of the peer reviews at the Bluffton facility; that at the peer review the terminated employee
decides if he or she wants to present their case first; that he then asks the panel members if
they discussed the case with the terminated employee or the Human Resources Specialist who
is presenting the Company’s case; that the peer review panel members are not told in advance
of the peer review what case they are hearing or who the other panel members are; that after
the presentations are made, panel members may ask to have another person who may have
some relevant information brought to the hearing so that they can question the person; that he
13 The peer review form indicates, as here pertinent, “[a]s an … [employee] of DTR
Industries, you have the right to have a termination decision reviewed by a panel of …
employees and Managers.”

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is present during the discussion of the panel; that when the discussion is complete he
distributes ballots to the panel members and they vote secretly on whether to confirm or
overturn the decision; and that he collects the folded ballots, throws them against a wall, picks
them up, reads them, and then announces the results.

Regarding Callahan’s peer review, King testified, when called by Counsel for General
Counsel, that he was the facilitator; that HR specialist Ream presented DTR’s case; that
employees John Thomas, Gahman, and Gary Averecsh were chosen from the employee pool,
and Woody Roberts and Curt Stover were chosen from the management pool to be on
Callahan’s peer review panel14; that Ream explained the process to the peer review panel
members, she provided them with the number of bad parts Callahan ran on August 27 and 28,
and showed them the bar used to establish the proper angle for the part and the jig used to
determine if the part is within specifications; that he did not make a statement to the panel at
Callahan’s peer review but he did ask them if they discussed the matter prior to convening; that
he did not recall making any statement to the panel with respect to the facts leading up to
Callahan’s discharge; that he could not recall whether any witnesses were called before the
peer review panel; that the peer review panel overturned Callahan’s discharge; that as
demonstrated by the ballots, General Counsel’s Exhibit 10, the vote was three to two to overturn
the decision to terminate Callahan15; and that he, along with Yokas, Fajiwara, Okata, and
Underbrink decided to suspend Callahan even before Callahan’s peer review panel met. On
cross-examination King testified that he met with upper management twice in September before
the peer review panel meeting regarding Callahan; that at the second September meeting they
discussed the possibility that the peer review panel would overturn the termination and what his
recommendation was to do if that happened; that he could not recall what questions the peer
review panel asked him; that he is not aware that the employee who is faster than Callahan
making the involved part makes any bad parts; that during the peer review panel discussion
Averecsh, who is a maintenance person, said that everyone runs scrap; that he did not have
any evidence of the bad parts that Callahan ran; that he did see Callahan’s bad parts on either
Thursday evening, August 29, or Friday morning, August 30 ; that it is DTR’s practice not to
leave those parts on the plant floor so as to eliminate any risk of a part like that going out to a
customer; and that the hose is cut on the part.

Callahan testified, with respect to his peer review hearing, that he presented his case
after the Company presented its case; that he told the peer review panel he did not do it, he told
them what happened from his point of view, and he told them that they should call Staley in as a
witness; that later that day he was told by King “that the peer review reversed and I could have
my job back but that I was going to be suspended from September 18 until January 3, 2003
without pay” (transcript page 121); and that he went to the UAW hall and he was told that they
were going to file charges on his behalf. On cross-examination Callahan testified that one of the
theories he provided to the peer review panel was the theory that he was working too fast. On
14 Employee Rick Stewart and manager Joe Brinkman were stricken from the list of those
chosen by Callahan. General Counsel’s Exhibit 7.
15 The ballots read as follows:
Case #_________ Date__________
Peer Review Ballot
Place an X to indicate your blind ballot on this decision.
Confirm the decision ______________________
Overturn the decision _____________________
It appears the same person wrote the case number and the date on each of the ballots.
Therefore, the panel members only placed an “X” on the ballot.

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redirect Callahan testified that he was not present during the Company’s presentation; and that
during his presentation to the peer review he was asked questions.

Gahman testified that Ream presented the Company’s case to the peer review panel,
stating that a lot of bad parts were produced on a particular day and Callahan was operating the
machine that the parts were produced on; that after Ream finished King

took over …. [stating] that he firmly believed that … [Callahan] made the parts bad on
purpose because … [Callahan] made good parts before … he always made good parts
and now he was making bad parts and they couldn’t determine a reason for the … parts
to be bad. So it was his conclusion that therefore … Callahan was responsible for the
parts being bad. [Transcript page 188] [Emphasis added]

Gahman testified that Callahan stated that

he did not produce bad parts on purpose. It was his sincere feeling that he was actually
doing the Company a favor.

He said that he was on vacation and that they called him and told him they really
needed him because somebody else was … sick and they needed …somebody to run a
particular machine.

He said the machine was not the machine that he normally operated, but he felt
that he had the ability to do it, so … as a favor … he would come in on his day off and
run the machine for them, and that he did his very best … to do his job as he always had
before.

And he said when it was brought to his attention that parts were coming out bad
the he did fully cooperate with his supervisor and the Production Specialist to try to
determine the reason for the bad parts. [Transcript page 188]

According to Gahman’s testimony Callahan said that the Production Specialist was Staley; and
that the peer review panel wanted to speak with Staley but for one reason or another he did not
appear at the meeting. Gahman testified that the peer review panel requested to speak with
Staley and the request was denied; that he believed that they asked King if they could speak
with Staley; that King then went outside the room and after a short period he came back in and
he could not recall if King said that Staley was not available, or he was not there, or what reason
King gave the panel; that a majority of the peer review panel voted that Callahan was unjustly
fired and he should be reinstated with his back pay; that he got upset when he found out that
Callahan was not going to be reinstated but rather he was going to be suspended and punished
for the incident that Gahman thought a majority of the peer review panel had just decided that
there was not enough evidence to support; that it was 2 p.m. and he works the third shift so to
him it is like 2 a.m., he made the effort to come in, and for the Company to suspend Callahan
after the decision of the peer review panel made him feel like it was all just a total waste of his
time; and that what the Company did made him change his mind so that he supported the Union
again.

On cross-examination Gahman testified that he knew Callahan before the peer review
panel meeting; that he and Callahan had shown up at a lot of union meetings; that he talked
with Callahan about the Union a lot; that he was friends with Callahan; that he did not recall
talking with Callahan about his termination before the peer review panel meeting; that he did not
have any contact with Callahan during which he discussed his termination before the peer

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review panel meeting; that he did not recall discussing Callahan’s situation with the members of
the peer review panel before the meeting; that the first time he knew that the peer review panel
meeting was about Callahan’s termination was when he showed up for the meeting that day;
that during the meeting King told the peer review panel members that he was convinced that
Callahan had done this on purpose because Callahan was very experienced in running these
parts and had never had a problem prior to those two days; that he believed that King also said
it was intentional on Callahan’s part because they could not find any problem with the machine
and that was a factor in his consideration; that King might have mentioned that the employees
who worked on the same machine before and after Callahan did not have a problem making
good parts; that King might have said (“that sounds familiar”16) something about the volume of
bad parts, namely that it was one thing to run 5 or 10 bad parts, but when there are 500 over the
course of two days, that is a whole other ballgame; that he did not know if King said that one
reason he was convinced that Callahan had done this purposely was because sometimes he
could produce good parts and sometimes he could produce bad parts, but there was nothing
that changed on the machinery or the setup to explain why that was the case; that if King made
this statement he would not have believed him since he works in maintenance, is familiar with
machines, and knows that machines run good parts and sometimes they run bad parts and this
is typical; that King said that Callahan and no one else had ever been able to come up with an
explanation of why bad parts occurred; that this is why the peer review panel wanted to talk with
Staley; that in his presentation to the peer review panel Callahan said that he did not know why
the bad parts were being produced, he was doing his best to do it exactly as his supervisors
instructed him; and that he did not recall Callahan telling the peer review panel that the problem
he was having with bad angles on the parts was because he was working too fast.

Williams testified that he was called as a witness before the peer review panel; that he
was asked if the bad parts could be intentionally made; that he answered that the bad parts
would have to be intentionally made; that he had never heard Callahan’s theory before that he
was so fast that he was getting the parts off the bar into the crimper before they were properly
set and that was the problem; that Callahan is not the fastest operator of the involved machine;
and that there is no way that moving the parts off the bar too quickly would produce really bad
parts; and that he prepared the notes received as General Counsel’s Exhibit 8 not long before
the peer review at the behest of Ream for her use at the peer review. On cross-examination
Williams testified that he did not indicate in his prepared notes received as General Counsel’s
Exhibit 8 that the only way that an operator could come up with extremely bad parts was
intentionally; that under the August 28 portion of his notes he indicates that he came to the
conclusion that there was nothing wrong with the fixture but it was the way the parts were laid
on the bar after assembly; that he believed that he came to the conclusion that Callahan made
the bad parts intentionally before the peer review but he did not write this in his summary
prepared for Ream; that he was not sure if it was before or after the peer review panel meeting
that he started making extremely bad parts to try to recreate the bad parts that Callahan made;
and that the bad part he brought to the trial herein was dated October 6, 2003 but this was not
the first bad part he made.

When called by the Respondent, King testified that he did not make any presentation
before the peer review panel; that during the discussion after the presentations of Ream and
Callahan, he did recall responding to some questions; that he did not recall Callahan arguing
that he was working too fast and that was the problem; that the first time he heard this theory
was at the trial herein; that he did not believe that anyone asked for Staley to be brought into the
peer review meeting as a witness, he did not recall that request being made; that the panel has
16 Transcript page 223.

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the right to request a witness who they think will be able to provide information; that DTR would
respect that request; that the panel asked to talk to Williams and Williams was brought into the
meeting; that he was present for the panel members deliberations but he did not express an
opinion; that with the support of DTR management, he decided to suspend Callahan because
regardless of what the peer review panel decided, in his mind Callahan had done it intentionally,
and even if Callahan had not done it intentionally, he was still guilty of gross negligence; that
while Callahan’s suspension raises the question why have a peer review process if DTR can
overturn it by giving Callahan a lengthy suspension, he did not overturn the peer review decision
in that they can only review terminations which does not mean that no other corrective action
can take place if the termination is overturned; and that the involved parts cost the company
$12.60 and, therefore, 500 bad parts is about $6,000 worth of scrap.

By letter dated September 17, General Counsel’s Exhibit 20, King advised Callahan as
follows:

This is official notification that you are suspended without pay from employment at DTR
Industries for the period September 18, 2002 through January 3, 2002. This suspension
is due to your conduct during August 27 and 28, 2002 when you destroyed critical safety
parts supplied to our customers. You are expected to return to work on Monday, January
6, 2003. Upon your return, you will be assigned to a department and shift based on our
needs at that time. We will contact you before January 6, 2002 to give you instructions
as to where to report and to whom you must report. [Emphasis added]

Callahan testified that he could not recall when he received his last discipline before this.

With respect to DTR’s drug and alcohol policy, King testified, when called by Counsel for
General Counsel, that random drug testing started at DTR in 1998; that when the policy was
initially implemented in November 1998 all of the employees were tested for drugs and alcohol;
that individuals were randomly selected for drug testing in August and September 2002 but he
could not recall when the previous time was when employees were randomly tested for drugs;
that Crisp, the Manager of Safety Training and Wellness, determines when a random drug
testing is going to take place; that Crisp reports directly to him and he is informed when random
drug testing is going to take place; that the procedure for selecting individuals for random drug
testing involves Crisp or Tonya Weigt, Respondent’s on site Occupational Nurse, contacting
Lima Memorial Hospital Occupational Health Center and requesting that a random list be
compiled for a specified number of people; that after Crisp or Weigt receives the list, the
employee is notified that they have been selected for a random drug test; that the HR Specialist
who gets the employee informs the employee that he or she is going to have a drug or alcohol
test; that the HR Specialist sometime escorts the employee to the Wellness Center for the
random drug test; that he has not taken a random drug test and he has not observed a
specimen being collected; and that he could only recall receiving a note from Weigt one time
regarding a drug test and it involved Gahman. King testified that he believed that he received
the note in September 2002. Her note, General Counsel’s Exhibit 4, which is titled Center for
Occupational Health Progress Report and is dated “9-18-02,” reads as follows:

Employee (Daniel Gahman) was chosen for a random drug screen. When he brought
out his first specimen it was very brown in color and was only about 20cc with no temp.
He was then asked to give another specimen so we could obtain a minimum of 30cc of
urine. He was instructed to drink up 40oz (4 glasses) of water and to stay up front near
the HR office. After drinking, he stated he was able to go to the restroom and when he
brought out his specimen, which was a bright neon yellow, approximately 40 to 60 cc,
there was no temperature on the side of the cup and the cup, to touch, was not warm.

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He was then instructed that he needed to give another specimen since this specimen
had no temperature and this time it would have to be witnessed by either Tom King, HR
or Dr. M. Young MD. He said that his wife was waiting on him and that he was already
late to meet her and he didn’t know if he could have another one done. He wanted to
know what would happen if he couldn’t make it. He was instructed that if he refused to
give another witnessed specimen then it was policy to be terminated. He questioned the
fact that if he refused to donate a specimen he would be fired but if he came back
positive he would get another chance and counseling. He was then instructed that if he
gave a specimen and it was positive then it was my understanding that DTR would offer
counseling but a refusal was termination. He then stated that he would prefer to go to
Lima Memorial and have Dr. M. Young witness his specimen. LMH was contacted that
he would be arriving.

King further testified that it was unusual for him to receive such a note; that Weigt is in charge of
the specimens that are provided by employees for testing; and that it is his understanding that
she collects the specimen, has the necessary forms filled out, verifies the identification
numbers, and complies with the required chain of custody procedures to send it for testing to
Quest.

Weigt testified that she prepared her above-described notes on September 18 because
Gahman’s first specimen was too small and it was extremely dark, and his second specimen
was glow in the dark yellow and lacked temperature.

Gahman started working for DTR in July 1999. At the time of his termination he was
working third shrift maintenance. He was supervised by Tony Averecsh, Mead, and Helms.
Gahman was responsible for keeping production running and completing work orders. On
Wednesday September 18 during shift change Byglin told him that he needed to go with him.
Byglin did not tell him why. They went directly to the nurses station at DTR. The nurse informed
him that he had been selected for a random drug screening. Gahman testified that they both
entered the men’s room and he went into a stall; that he gave the nurse a specimen, she said
that it was not the correct temperature, and she dumped the specimen down the urinal; that the
nurse told him that he would have to give her another specimen and he told her that he was not
able to at that time; that she told him that he should drink three glasses of water and she has
someone bring him three glasses of water; that he sat outside the men’s room until he could
produce another specimen; that the nurse said the that second specimen was not the correct
temperature and she dumped the second specimen down the urinal; that the nurse told him that
he had three options, namely (1) he could refuse to give a third sample and he would be
terminated, (2) he could have King observe the actual collection of the sample, or (3) he could
go to the Memorial Hospital and let a physician observe the collection of the sample; that he
chose option 3; and that he went directly from work to the hospital, where they took his picture,
a Dr. Young observed him produce a specimen, Dr. Young gave the specimen to a nurse who
said that the specimen was not the correct temperature, and Dr. Young told the nurse that it
would be an acceptable sample because he observed the production of the sample and the
temperature would not matter because of that.

On cross-examination Gahman testified that he knew that he was going to fail the drug
test; that he did not remember the DTR nurse also telling him that the first specimen was too
small of a sample to measure; that the nurse did not take the second sample and send it out to
be tested but rather she also dumped the second specimen down the urinal; that he signed
page 2 of General Counsel’s Exhibit 5 which indicates, as here pertinent, “I certify that I
provided my urine specimen to the collector; that I have not adulterated it in any manner; each
specimen bottle used was sealed with a tamper-evident seal in my presence; and that the

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information and numbers provided on this form and on the label affixed to each specimen bottle
is correct”; that both of the samples that he provided at DTR were dumped down the urinal; that
he asked the nurse what would happen if he did not sign the form, she said that he would be
terminated immediately, and he signed the form; that he gave a statement to the National Labor
Relations Board (Board) on October 21 but he did not indicate in it that the nurse threw out the
second sample; that when he gave the statement to the Board, he was aware that he had been
terminated for giving a fraudulent sample; that he thought he did tell the Board that the second
sample had been dumped; that he did mention to the Board that the first sample was dumped
but there is no mention of the second one in his affidavit; that he provided two additional
statements to the Board and neither one mentions that the second sample was dumped; and
that he did not give any fraudulent samples.

Tonya Weigt, who is a licensed practical nurse, has been the plant nurse at DTR since
the end of July or the beginning of August 2002. She testified that she is an employee of DTR;
that in her prior employment she has given close to, if not over, one thousand drug screens; that
at DTR after an employee is selected for a drug test she takes the name and show it to Crisp,
who is the Safety Director and her supervisor17; that she then gets someone from Human
Resources to get the employee and bring him to the nurses office; that she works from 6 a.m. to
4 to 6 p.m.; that she has the employee fill out a consent form, Respondent’s Exhibit 6; that
Respondent’s Exhibit 7 is a chain of custody form; that she was trained at the Lima Memorial
Hospital with respect to chain of custody; that after the employee fills out the consent form she
basically fills out step 1 of the chain of custody form to the extent that information is not already
on the form, and she indicates how many drugs they are going to test for in the screening,
namely 10; that she then asks the employee to provide a specimen in a container which up to
that point has been sealed and which she opens in front of the employee, Respondent’s Exhibit
8; that she tells the employee how much specimen, 30 cc’s, the laboratory needs in order to do
the test; that the specimen container has a temperature indicator strip which measures between
90 and 100 degrees Fahrenheit; that specimens of less than 30 cc’s are flushed down the toilet;
that when the employee gives the specimen to her she checks the temperature and makes sure
that there is 30 cc’s in the container; that the specimen is placed in a larger container and
labeled with a specimen ID number over the top of the lid so that it seals the lid completely; that
the specimen ID number that she uses to seal the lid is an adhesive strip which she takes from
the bottom of the custody and control form and puts over the lid to seal it; that the adhesive strip
has the specimen ID number along with a bar code and also a place where the donor initials
and dates the adhesive strip used to seal the container; that she reviews the step 1 portion of
the chain of custody form with the employee, along with the specimen ID number; that she puts
the sealed specimen in a bag and she puts the tracking label over the bag for a second seal;
that she continues reading the rest of the custody and control form with the employee,
completing step 2 by marking the specimen temperature yes or no, single specimen collection,
and completing step 4 by signing the form, printing her name, giving the time and the date, and
checking off Quest Diagnostics Courier; that she then would have the employee fill out step 5 of
the form, as here pertinent, sign and date a certification that the employee

provided my urine specimen to the collector; that I have not adulterated it in any manner;
each specimen bottle used was sealed with a tamper-evident seal in my presence; and
that the information and numbers provided on this form and on the label affixed to each
specimen bottle is correct[;]

that sticker B is not used because DTR only sends one specimen; that DTR’s Medical Review
17 Crisp corroborated that Weigt began working for DTR in July or August 2002.

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Officer is Dr. Maris Young who receives the results from Quest Laboratories of all drug screens;
that Dr. Young, who is located with Lima Memorial Hospital, is not a DTR employee; that the
specimen which is in a bag with the third seal placed on it is placed in a lock box for pickup by
Quest Diagnostics Courier; that no one has access to the box until the Quest Diagnostics
Courier employee picks up the specimen; that when Dr. Young receives the results he informs
DTR; that DTR does not select employees for random drug testing but rather it contacts Lima
Memorial Hospital when DTR wants to have a random drug screen and DTR tells Lima
Memorial Hospital how many employees it needs to randomly test and the Hospital has a
computer system that randomly generates names; that DTR does not have any control over
who is selected for random testing; that when DTR receives a list of names from Lima Memorial
Hospital that is the first time DTR knows who is going to be tested18; that a lot of people were
tested in September 2002 because DTR was going from one medical provider to another, Lima
Memorial Hospital, and it had to test 25 percent of its work force in a particular time period,
which ended in September 2002 for the Bureau of Worker’s Compensation (BWC)19; and that
normally the people on the list are tested the day after DTR receives the list, if not the same
day. On cross-examination Weigt testified that she believed that there were some random drug
tests at DTR in August 2002; and that she is the first one at DTR to see the computerized lists
of DTR personnel like those in Respondent’s Exhibit 9. On redirect Weigt testified that
Respondent’s Exhibit 12 are the lists for random drug tests in August 2002.20

With respect to Gahman, Weigt testified that she received the list from Lima Memorial
Hospital dated September 17 on September 17 with Gahman’s name on the list; that Gahman’s
test was unusual in that his first specimen was only about 20 cc’s and it was brown; that she
had never seen a specimen quite that dark; that she flushed the specimen down the toilet and
told Gahman to drink at least 40 ounces of water and then try again; that she routinely discards
undersized specimens; that Gahman’s second specimen was a very bright neonish, kind of
yellow; that the quantity was sufficient; that she had never seen a specimen that bright; that
there was no temperature on the urine specimen cup; that she sealed it just like she would a
regular specimen because it was an adequate amount; that she went through the steps on the
chain of custody form, as described above, and Gahman signed it; that she then told Gahman
that he had to have a witness specimen after that because of the temperature; that Gahman
signed General Counsel’s Exhibit 5 acknowledging that the specimen was sealed; that she also
signed the form and she put Gahman’s specimen in the lock box; that she is the only one from
DTR with a key to the lock box; that she told Gahman that he needed to produce a witnessed
specimen and he could either have someone from management at DTR or Dr. Young at Lima
Memorial Hospital be the witness; that Gahman said that he did not have the time because his
wife was waiting; that she told Gahman that if he refused to give a specimen, he would be
terminated; that Gahman asked him what would happen if he tested positive and she told him
that a first offender would get counseling21; and that before this test she had not met and she
18 See Respondent’s Exhibit 9 which are lists dated September 3 (25 names), 9 (15 names),
16 (15 names), 17 (15 names), and 23 (30 names with one crossed out). These are all of the
lists for September 2002. Crisp’ name was on the September 3 list and she took the drug test.
She pointed out that the random drug testing program encompasses both management and
hourly employees.
19 Crisp testified that random drug testing of a specified percentage of the total workforce
over the course of a year entitles DTR to receive the BWC premium discount for a 5 year
period which ended in September 2003.
20 The dates included are August 5, 12, and 26. There are four names on each of the lists.
21 The first offender remains on the random drug screen list and also the person can receive
a follow up test at any time during the following year.

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did not know Gahman. On cross-examination Weigt testifies that she did not specifically
remember indicating that King would be the witness at DTR; that she told Gahman that King
could observe him producing a specimen; that to her knowledge King has never observed an
employee producing a specimen; that she might have mentioned King as a male figure in HR
but she did not specifically remember saying Mr. King; and that the statement on the Quest
Diagnostics report on Gahman’s second specimen (Respondent’s Exhibit 10 and page 3 of
General Counsel’s Exhibit 5) that “THE TEMPERATURE OF THE SPECIMEN AT
COLLECTION WAS OUTSIDE OF THE RANGE FOR A NORMAL URINE” is based on her
checkmark in step 2 of the chain of custody form, page 2 of General Counsel’s Exhibit 5.

Crisp testified that DTR does not have the ability to determine whose names are pulled
on the random drug testing lists; that she telephones the Occupational Health Clinic at Lima
Memorial Hospital and asks them to do a random pull; that the list is sent to a confidential fax
machine in Human Resources where Weigt gets it; that the random selection process is
described in Respondent’s Exhibit 14; that Respondent’s Exhibit 15, 16, 17, 18, and 19 are
BWC progress reports that she submitted to demonstrate DTR’s eligibility for the premium
discount; that there were so many random drug tests in September 2002 because DTR had
changed to Lima Memorial Occupational Health, Weigt was hired, and the deadline for getting
200 random drug tests completed to get the premium discount was September 30; that Weigt’s
predecessor did not do random drug testing; that on September 18 Weigt told her that the first
specimen that Gahman produced was dark and the second specimen was almost like a
fluorescent type color; and that Weigt told her that the temperatures were off on both specimens
and she needed to send Gahman for an observed specimen collection.

On Friday September 20 Dr. Young telephoned Gahman and told him that the specimen
had come up positive for marijuana. Dr. Young asked Gahman if he took the prescription
medicine Marinol and he told him he did not. Dr. Young told him to telephone Crisp to find out
what he should do from there. Crisp told him to report to work and attend counseling at Century
Health. On cross-examination Gahman testified that Crisp told him that he had to attend
counseling before coming back to work and he did not work on the shift beginning on Sunday
September 22.

Crisp testified that on Friday September 20 she found out about Gahman’s positive test
result for marijuana, Respondent’s Exhibit 11, when Dr. Young’s office telephoned her and
confirmed that Dr. Young spoke to Gahman about the positive results on the drug test; that a
positive results in the individual receiving counseling before coming back to work, and the
individual is subject to a minimum of four additional tests during a 1 year period; and that she
sent Gahman to Century Health for counseling on Monday September 23 because this was the
soonest appointment she could get him. On cross-examination Crisp testified that typically the
drug counseling lasts from three to five sessions but a person could have just one session; and
that Gahman went to one session and then returned to work so he had not completed
counseling.

Gahman attended the counseling on Monday September 23 and was told to telephone
Crisp, advise her that he attended, and ask her what the procedures would be from there. Crisp
told him to report to work that night at his regular starting time. He did.

On cross-examination Weigt testified that on September 23 she received the last page of
Respondent’s Exhibit 9, which is the Lima Memorial Hospital list, dated September 23, of DTR
personnel to be randomly tested; that Gahman’s name is on the list; and that she did not

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conduct a random drug test on Gahman on September 24.22 On recross Weigt testified that she
did not recall giving Gahman a drug test on September 24. Subsequently Weigt testified that
Gahman was not tested on September 24 because “I believe that’s around the time that we got
confirmation from the first test that was sent back.” (transcript page 287) Then on redirect Weigt
testified that this would be the fraudulent test which report indicated not human urine, and at
that point the decision was made that there was no point in testing any further.

Crisp testified that she found out about the test result on Gahman’s second specimen,
Respondent’s Exhibit 10, on Tuesday, September 24 or Wednesday, September 25; that she
believed that she received it on Tuesday September 24 or she received notice of it; that the
report, Respondent’s Exhibit 10, indicates that the specimen that was given to Weigt by
Gahman was not human urine; that when she received that report on Tuesday afternoon, she
contacted King and told him that DTR had a fraudulent sample given to it; that Gahman’s shift
ended at 7 a.m. on September 24 so he would have already left the facility when she received
the report; that King comes to work at 6 a.m. on Wednesdays for group leader meetings; that on
Wednesday September 25 King told her that he met with Gahman, sent him home, and he was
terminated for submitting a fraudulent sample; that there was one other fraudulent specimen
situation, Respondent’s Exhibit 20, and the involved employee, Randy Evans, was terminated
by letter dated October 8, Respondent’s Exhibit 21; that first page of the report on Evans’
specimen indicates that there is something in the urine; that if there is an additive or something
interferes with the testing of the sample, then a second test is done to find out what adulterant is
present in the urine; that the second report shows the presence of chromium in the specimen;
that King got Dr. Young on the speaker phone to explain what this meant, and she was present
for the conversation; that Dr. Young said that this was an extreme amount of chromium in the
urine, and it would not be naturally occurring in human urine; that Dr. Young told them that the
purpose of adding chromium to a specimen would be to throw off the test so that you could not
get an accurate test of whether prohibited substances were present in the specimen; and that
the chromium is a masking agent. On cross-examination Crisp testified that she believed that
on Tuesday afternoon September 24 she received the results of the test of Gahman’s second
specimen; that she believed that the results came in the mail because there would not have
been a reason for the Occupational Clinic to actually call her; and that the Occupational Clinic
does telephone her for a confirmed positive.

At the time of the trial herein, McVetta, who has worked for the Respondent for 15 years,
had never been selected for a random drug test although she had been tested apparently
before the Respondent started doing the testing on a random basis.

Callahan testified that he was tested for drugs in 2000 at DTR but it was not a random
test in that the whole plant had to take a drug test at that time; and that he was not given a
random drug test from 2000 to 2002 and he did not know anybody who got one during those
years.

On September 24, according to the testimony of R. Shawn Carnahan, who has worked
for the Respondent for three years, Berry, who is the second shift plant supervisor, and Helms,
who is the third shift plant supervisor, in his presence, told Gahman to remove the union hat he
was wearing at Respondent’s facility. Carnahan testified that Berry told Gahman that it was
against company policy to wear a UAW hat in DTR’s facility; that when Gahman protested he
was told to speak to King in the morning; that Berry said the hat was offensive to him when
Gahman asked him if he had to take the hat off because it had UAW on it; and that toward the
22 She also did not conduct a random drug test on Gahman on September 23.

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end of that shift Mead, who is the first shift group maintenance leader which is a supervisory
position, told Gahman to take off the UAW pin he was wearing it was offensive and Gahman
needed to go to Human Resources and talk to King about it. On cross-examination Carnahan
testified that he did not know if Gahman was disciplined for wearing a UAW hat and pin; that he
has worn a hat or a pin and he was not disciplined for it; and that he did not know anyone in the
plant who wore a hat or a pin and was disciplined for it.

Gahman attended a union meeting at 9 p.m. on September 24 and then reported for
work at his normal starting time at 11 p.m. He was in DTR’s facility for about 5 to 10 minutes
when second shift supervisor Berry noticed that he was wearing a hat with the UAW logo on it
and told him to take the hat off. He asked Berry why and Berry said that he was offended by it.
He told Berry that another employee was wearing a Bengals hat and he was offended by the
other employee’s hat. He asked Berry if he had to take his hat off, did the other employee have
to take his hat off also. Berry told Gahman that if he had a problem with the other employee’s
hat he had to go report it to the HR Department. Gahman took his hat off and went to HR where
he spoke with Dave Byglin, who is the third shift HR representative and a woman who is the
second shift HR representative. He told them that Berry told him to take off the hat and he
asked them why he could not wear the hat. The second shift representative told him that he
could not wear anything with a UAW logo on it in the plant. He asked her why and she told him
because we are not a union shop. He told her that this was not a Bengals shop but the other
employee was wearing a Bengals hat. He then asked her if the other employee could wear the
Bengals hat, why couldn’t he wear the hat with the UAW logo on it.23 Byglin said that they were
not qualified to answer that question and if he wanted an answer he would have to talk with
King.

At the end of this shift, which would have been Wednesday morning September 25,
Gahman attended a transition meeting. Rick Mead, who is the Maintenance Group Leader, told
him to take off the UAW pin he was wearing. Gahman asked him why and Mead told him that he
could not wear anything with a UAW logo on it inside DTR’s facility. When he asked Mead why,
Mead told him to go see King right now and ask him. At that point Gahman and another
employee became engaged in a verbal confrontation over Gahman wearing a UAW pin. Byglin
walked into the room and told Gahman that King was ready to talk to him now. Byglin took him
to King’s office. Gahman asked King why he could not wear a UAW pin and King said that it was
irrelevant, he wanted Gahman’s time card and his keys to the building, he wanted Gahman to
exit the building and not talk to anyone on the way out, and Gahman would receive information
in the mail to notify him of the status of his employment with DTR.

Weigt testified that on Wednesday September 25 she received the results from Quest
Diagnostics of the test of the second specimen Gahman gave her on September 18 at DTR,
Respondent’s Exhibit 10 and page three of General Counsel’s Exhibit 524; that she contacted
her supervisor Crisp, who administers the drug free work place program; that Respondent’s
Exhibit 11 is Gahman’s positive report for marijuana25; that as demonstrated by page two of
Respondent’s Exhibit 11, Gahman declined a retest of the specimen after it is split; and that she
received the positive test results before she received the fraudulent test results. On recross
Weigt testified that she received the report on the second specimen on September 24 or 25 but
23 The “UNIFORM RULES,” General Counsel’s Exhibit 22, which Gahman acknowledged
receiving in 1999, specify “4. Hats are allowed, … [employee’s] choice. If the hat is deemed
inappropriate the … [employee] will be asked to remove the hat.”
24 The report date and time are September 19 at 6:38 p.m.
25 The report date and time are September 19 at 9:05 p.m.

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before that Crisp received a verbal over the phone; and that she did not receive a telephone call
regarding the report on Gahman’s second specimen.

By letter dated September 26, General Counsel’s Exhibit 23, King, as here pertinent,
advised Gahman as follows:

This is official notice of the termination of your employment from DTR Industries, Inc.
effective immediately.

The reason for your termination is your submission of at least one false sample when
you were selected for a random drug test pursuant to DTR’s Drug and Alcohol Free
Policy.

When called by Counsel for General Counsel, King testified that he recommended that
Gahman be terminated and his recommendation was supported by other members of the
consensus decision making process, namely Walt Hawkins, who is the manager of plant
maintenance in engineering, Yokas, Fajiwara, and Okata. According to his testimony, in making
his recommendation King relied on a report from the laboratory that does the testing that
Gahman had submitted a specimen that was not human urine but rather a substitute. See page
three of General Counsel’s Exhibit 5.26 King testified that he believed that he received the report
on Tuesday September 24 from Crisp but he could not recall the time of the day he received it;
that he did not rely on General Counsel’s Exhibit 6 which is the report from the Quest lab
indicating that Gahman tested positive for marijuana matabolites; and that he was informed that
Gahman tested positive.

26 As here pertinent, the report reads as follows:
DRAWN DATE AND TIME RECEIVED REPORT DATE
DATE AND TIME
Gahman, Daniel 09182002 07:47AM 09192002 09192002
6:38PM
….
*** POSITIVE/ABNORMAL REPORT ***
….
THE TEMPERATURE OF THE SPECIMEN AT COLLECTION WAS OUTSIDE OF
RANGE FOR A NORMAL URINE (32-38 C/90-100 F).
SPECIMEN SUBSTITUTED: NOT CONSISTENT WITH NORMAL
HUMAN URINE
CERTIFYING SCIENTIST: DARLENE MANOJLOVSKI
SPECIMEN RECEIVED AND PROCESSED IN THE SCHAUMBURG DHHS
CERTIFIED LABORATORY.
LAB: Quest Diagnostics – Chicago
506 E State Pkwy
Schaumburg, IL 60173
>> END OF REPORT <<
Page two of General Counsel’s Exhibit 5 is the form filled out and signed by Weigt and
Gahman, dated 9/18/02. Weigt indicated that the specimen was collected at 7:47 a.m.
and she checked the “no” box for “Read specimen temperature within 4 minutes. Is the
temperature between 90 … and 100 … [degrees] F?” and she indicated on the form that
it was a single specimen collection. Otherwise she did not comment on the form about
the specimen.

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When called by the Respondent King testified that one other employee at DTR
submitted a fraudulent urine sample and he was terminated; that, as here pertinent, page 27 of
DTR’s employee handbook indicates that “[t]he following conduct will not be permitted and will
result in discharge: 1. Falsification or employment applications, medical documentation or any
other company records/documents. …. 6. Dishonesty, stealing or removal of another …
[employee’s] property or DTR property without permission”; that other employees have been
terminated for falsifying documents of one kind or another; that he had nothing to do with the
selection of Gahman to take a random drug test, and there is no way he could have done that ;
that he met with Gahman on September 25; that he had been told that Gahman wanted to
speak with him and he needed to talk with Gahman; that Byglin was there when he met with
Gahman; that Gahman asked him about the UAW hat and he told Gahman that the hat was
irrelevant, it was not part of the meeting; that he told Gahman that he wanted to talk to him
about the false specimen that he submitted for a drug test, pointing out that the report indicated
that the specimen did not have a temperature and was not consistent with human urine; that
Gahman said that his other test did not have temperature either; that he told Gahman that that
did not matter and the important point was that he submitted a sample that was not consistent
with human urine; and that he then told Gahman to leave the building and he would be
contacted regarding his status.

On cross-examination King testified that he did not call Quest Diagnostics to determine
what the analysis of Gahman’s specimen test meant; that he asked Weigt on September 24
what the Quest Diagnostic report meant; that he thought that Crisp was present at this meeting;
and that about 6 a.m. on September 25 Byglin and Helms told him that Gahman wanted to see
him, but he could not recall if they said something about a hat or a pin.

Callahan handed out union leaflets for the third time at the end of September or the
beginning of October 2002. The leafleting started at 10 p.m. and lasted 1 hour.

On January 6, 2003 Callahan returned to work at DTR in mixing manufacturing.
Callahan testified that he had received a letter from DTR’s Human Resources department telling
him he was supposed to report to King at 2 p.m. on January 6, 2003, and King told him that he
was going to the second shift in the mixing department and he had no bid rights (to bid on other
jobs); that King told him that he “was walking a very fine line” (transcript page 122) and he could
start working on January 7, 2003 on the first shift for 4 to 6 weeks and then he would be going
to the second shift; and that he had never worked in the mixing department before, it is very
dirty and physical work where new people start “[I]ts very hard to keep people working there,
[I]t’s the worse [sic] job in the plant by far.” (transcript page 123). On cross-examination
Callahan testified that employee Gloria Davis bid into the mixing department to be able to go
from the third shift to the first shift and that was the only way she could go on the first shift; that
there are two parts to the mixing department and Davis did not work in the part that he worked
in; and that his pay and benefits were not affected when he went into mixing.

When called by the Respondent, King testified that he assigned Callahan to the mixing
department because he still believed that Callahan intentionally ran the bad parts; that Callahan
was put where the damage he would create would be minimized because before rubber leaves
mixing it is goes through quality testing; that mixing is not the dirtiest, heaviest, and least
attractive job in the plant; that there are very high seniority people in the mixing department; that
one man has been there since 1989 by his own choice and he has enough seniority to bid out to
another department; that it is dirty work but it is not the type of operation that Callahan
described; and that Callahan ended up on the second shift because that is where DTR needed
manpower, and he was not going to displace any other employee by putting Callahan in his
place. On cross-examination King testified that Callahan was assigned to work the various

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positions in the mixing area because employees in the mixing area rotate jobs weekly.

In February or the beginning of March 2003 Callahan was moved to second shift. He quit
working for DTR in June 2003. Counsel for General Counsel stipulated that there is no claim for
reinstatement regarding Callahan.

Using King as a sponsoring witness, Counsel for General Counsel introduced a number
of exhibits, General Counsel’s Exhibits 12 through 17, which deal with the disciplining of other
employees, namely Nicole Davis, Lewis Shine Sr., Stephanie Brown, Danny Smith, Martin
Baldazo, and Dominic Worthy, respectively. All of these employees are currently employed by
DTR. Davis has had on-going quality issues, passed bad parts, has received a number of
warnings, and one of the notes in her file, as here pertinent, reads as follows: “Please get her off
final or Ford line entirely. My #s are way down from correcting her bad parts. Thank you for any
help you can give me. Also, could she come back here & re-do her own mess? To discard all
those parts is really a big waste.” (emphasis in original) The note is signed by Karen Davis.
Shine on more than one occasion had multiple parts returned from the customer that were
defective and on other occasions the defective parts were caught before they went to the
customer. Brown received a verbal warning for running 173 bad parts. Smith ran 104 parts
which were not the right length, he falsified documents, he ran 78 parts with wrong hose, and
did not follow standard operating procedures on more than one occasion. Baldazo received a
number of warning notices and verbal warnings and a formal letter of warning conduct which
reads, as here pertinent, as follows:

On December 21, 2001, you were issued a Written Warning for Conduct. On February
20th and 22nd, 2002, you ran the wrong chemicals in two batches or rubber causing lost
production and high scrap costs. This action necessitates this Formal Letter of Warning.
Any further Conduct violation will necessitate the next step of disciplinary action up to
termination.

And Worthy ran rubber in extruder disregarding proper procedure which caused substantial loss
of product, ran product with print message illegible, and did not follow standards and make sure
the product running was correct.

With respect to the disciplines described in the next preceding paragraph, King testified
that none involve people doing “anything intentionally to sabotage the operations or to purposely
make bad parts or to intentionally violate SOP’s or requirements.” (transcript page 464)

Analysis

Paragraph 6 of the complaint alleges that in early summer 2002, the exact date being
unknown, Respondent, by its representative, Thomas King, at Respondent’s facility, gave
employees the impression that their union activities were under surveillance. Counsel for
General Counsel on brief contends that Gahman testified that after he began his union activity
he saw Helms in areas he did not formerly regularly see Helms, including the bar where
employees hang out after work. The Respondent on brief argues that the standard for
determining whether an employer violates the Act by giving the impression of surveillance is
‘whether the employee would reasonably assume from the statement in question that … [his or
her] union activities had been placed under surveillance,” Fred’k Wallace & Son, 331 NLRB 914,
914 (2000) citing Flexsteel Industries, 311 NLRB 257 (1993); and that the only reference that
can be stretched to relate to this allegation was Gahman’s recollection of exaggerating stories
about knife sharpening and fans at a Union meeting the day prior to the meeting with King.

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Helms, Byglin and either Yokas (according to King) or Crisp (according to Gahman)
were present at the July 22 meeting between King and Gahman. None of these other
supervisors were called by the Respondent to corroborate King’s testimony. The Respondent
chose to rely solely on the testimony of King, whose credibility - because of the questionable
role he played in almost all that occurred in this proceeding, obviously was going to be an issue.
At the outset of this meeting King told Gahman that he was aware that Gahman was an
outspoken supporter of the UAW. Contrary to his testimony, King also told Gahman that he was
aware Gahman had attended union meetings. Then King told Gahman that it had been brought
to his attention that Gahman had sharpened a knife for an employee in exchange for the
employee signing a union authorization card, and Gahman refused to install a fan for an
employee who did not support the UAW. Gahman had made statements about knives and fans
at the union meeting the day before. He realized that what he said had been relayed to King,
and as so often occurs, something was lost in the repeating of the statements. As King’s own
notes of this meeting reflect, Gahman admitted that he had “[a]ttended 3 union meetings – won’t
attend any more. Disgusted with it.” General Counsel’s Exhibit 3. Gahman explained that before
this he believed that the union meetings were confidential. His meeting with King was not about
a knife and fans. His meeting with King was about Gahman’s union activity. The last entry in
King’s notes on his earlier meeting with Phillips indicates that “Gayman [sic] felt he had better
than 50% of 3rd & good amount of 1st shift. Can’t get 2nd shift going.” Undoubtedly this was
Phillips repeating a statement that Gahman made at the union meeting the day before.27 King,
who attended law school, and did not hesitate to tell Gahman on September 25 that the union
paraphernalia issue was irrelevant, demonstrated what was relevant to him about this meeting
in his own notes of his July 22 conversation with Gahman. All of his notes (excluding Gahman’s
name) deal with the union activity of Gahman except for one line which deals with knives (There
is no reference to fans in King’s notes of his discussion with Gahman.).28 In making it a point to
tell Gahman that he knew that Gahman was an outspoken supporter of the UAW and attended
union meetings, and then going on to basically repeat what Gahman said at the union meeting
the day before, King was creating the impression of surveillance. Gahman could reasonably
assume that his union activities had been placed under surveillance. The Respondent violated
the Act with respect to Gahman as alleged in paragraph 6 of the complaint.

Paragraph 7 of the complaint alleges that in early summer 2002 at its facility, King,
threatened its employees with discipline if they continued their support and activities on behalf
of the Union. General Counsel on brief contends that King’s threat of future discipline if Gahman
failed to renounce his union support is a violation of Section 8(a)(1) of the Act. The Respondent
on brief argues that DTR did not threaten discipline for employees who supported the Union;
27 Actually a portion of King’s notes were deleted. The portion occurs between that portion of
King’s notes dealing with his meeting with Phillips which were turned over to Counsel for
General Counsel and King’s notes on his meeting with Gahman. King testified that “I think … it
may have been these notes that are on the first page or some notes relating to another meeting,
I’m not positive.” (transcript page 78) Respondent’s attorney indicated “[t]hose notes reflect an
entirely different employee and a entirely different set of incidents so it was redacted.” (transcript
page 79)
28 There is a line at the bottom of the page which reads as follows; “Wayne Harrison
articles.” It is not clear what this refers to. No one testified that this was something that was
discussed during King’s meeting with Gahman. While it might be argued that the line “Won’t be
a future problem –“ could refer to sharpening knives, both the placement of this line after “Attend
3 meetings – won’t attend any more. Disgusted with it,” and Gahman’s testimony that he told
King that it would not be a problem because he had come to a decision to discontinue his
support for the UAW warrants the conclusion that this line also referred to union activity.

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that Gahman’s testimony is directly contradicted by King; that the contents of the meeting come
down to the conflicting testimony of Gahman, an admitted illegal drug user who falsified a drug
test, and King, a former union organizer who is keenly aware of what can and cannot be said to
employees in the context of union organizing; that Gahman is essentially accusing King of
stupidity in claiming he threatened discipline for his union activities; and that General Counsel
failed to prove that Respondent violated the Act by threatening discipline for union support.

Again, the Respondent could have but did not call the other supervisors who were
present at the July 22 meeting between King and Gahman to corroborate King’s testimony.
Again it is King’s word against the word of Gahman. Why? If King’s testimony is the truth, it
would be so easy to corroborate it with the other supervisors. Gahman did not have a
representative with him at this meeting so he has no one he could call to corroborate his
testimony. That is not the case, however, with King. King had three other supervisors with him in
this meeting. None were called to testify about this discussion. Why not? The Respondent
argues that the contents of the meeting come down to the conflicting testimony of Gahman, an
admitted illegal drug user who falsified a drug test, and King. But we also have King’s own
contemporaneous notes of the meeting, General Counsel’s Exhibit 11. King testified that
Gahman volunteered that he was disgusted with the Union, he had attended three union
meetings, and he is not going to be involved anymore. King’s notes indicate that Gahman said
that “[w]on’t be a future problem – .” What was the problem that was not going to occur in the
future? The “[w]on’t be a future problem – ” statement, according to King’s own notes, occurs
right after “Attend 3 meetings – won’t attend any more. Disgusted with it” and just before “I’ve
pretty much relinquished everything.”29 As noted above, Gahman testified that King said that he
“wasn’t happy with my support … of the UAW … [a]nd if he didn’t hear anymore reports about
my support and the UAW or openly supporting the UAW, that there would be no further mention
of the allegations that he brought up” (transcript page 181); that King then said that “if he
continued to hear reports about my UAW support that there would be disciplinary action for the
knife incident and the fan incident” (Id.); and that he told King that “it wouldn’t be a problem
because I had come to a decision to discontinue my support for the UAW and, … that I would
no longer be involved with it one way or another so that he wouldn’t be getting any more reports
about me and UAW activity” (Id.) King’s notes, in conjunction with Gahman’s testimony,
demonstrate, in my opinion, that the “[w]on’t be a future problem – ” statement referred to union
activity. King testified that Gahman volunteered that he was not going to be involved with the
Union any more. Gahman made this statement but it was made after King threatened him with
disciplinary action if he continued to support the Union and engage in union activities. With
respect to Gahman, King violated the Act as alleged in paragraph 7 of the complaint.

Paragraph 8 of the complaint alleges that on or about August 29, King, at the
Respondent’s facility, threatened employees with layoff and job loss if the employees selected
the Union as their bargaining representative. General Counsel on brief contends that pursuant
to NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969) an employer is free to predict the
economic consequences it foresees from unionization so long as the prediction is “carefully
phrased on the basis of objective fact to convey … [its] belief as to demonstrably probable
consequences beyond … [its] control ….”; that King told DTR’s employees that its customers
would, in fact, review DTR’s status as a sole source supplier; that such a statement is more than
just a prediction in that it informs employees that upon such a review of DTR’s status, jobs
would be lost; that King provided no objective facts that sole supplier status would be lost,
specifically any facts demonstrating that Honda, Toyota or any of its other customers would
29 As indicated above “Wayne Harrison articles” is written at the bottom of the page after
“Attended 3 meetings – won’t attend any more. Disgusted with it.”

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view unionization as a vulnerability in and of itself to contemplate changing DTR’s status; and
that statements similar to those made by King during the involved P/A meetings have been
found to be threats of reprisal in violation of Section 8(a)(1) of the Act, ITT Automotive, 324
NLRB 609, 622 (1997) and Long – Airdox Co., 277 NLRB 1157, 1169 (1985). The Respondent
on brief argues that DTR complied with the law of the United States Court of Appeals for the
Sixth Circuit in DTR Indus., Inc. v. NLRB, 39 F.3d 106 (6th Cir. 1994) when King delivered a
speech on the Company’s sole source status in response to union misinformation; that King
relied on objective facts based on his experience in the industry, focusing on what customers
might do in response to unionization and not on what actions the Company would take if the
Union were successful; that King spoke to the employees in terms of what might happen and
not what would happen; that King told the employees that he had no way to predict what the
customers would do if DTR’s employees chose to be represented by the Union; that King
focused on the fact that customers would re-evaluate the sole source status of the Company
and that the re-evaluation presented a risk of customers removing business from DTR; that
General Counsel’s witnesses McVetta and Lehman supported King’s assertion that he based
his speech on objective, widely known facts, and that he focused on what customers might do,
not DTR; and that King’s speech is protected by Section 8(c) of the Act and did not violate
Section 8(a)(1) of the Act.

At pages 618 and 619 in Gissel, supra, the Court indicated

an employer is free to communicate to his employees any of his general views about
unionism or any of his specific views about a particular union, so long as the
communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He
may even make a prediction as to the precise effects he believes unionization will have
on his company. In such a case, however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s belief as to demonstrably probable
consequences beyond his control …. If there is any implication that an employer may or
may not take action solely on his own initiative for reasons unrelated to economic
necessities and known only to him, the statement is no longer a reasonable prediction
based on available facts but a threat of retaliation based on misrepresentation and
coercion, and as such without the protection of the First Amendment. …. As stated
elsewhere, an employer is free only to tell ‘what he reasonably believes will be the likely
economic consequences of unionization that are outside his control,’ and not ‘threats of
economic reprisal to be taken solely on his own volition.’ [Citations omitted.]

DTR has been down this road before. One would think that the second time around DTR would
want to avoid any question with respect to what its representative told employees. Yet DTR did
not make a video or even an audio recording of what King told the employees. Indeed DTR did
not even introduce into evidence a prepared printed text of what King told the employees about
what he believed were the consequences of unionization. Why not? Did DTR want the flexibility
to assert that it said one thing while King in fact said something else? Indeed from the
Company’s side, King is the only witness with respect to what he told the employees at the P/A
meetings. On brief the Respondent cites the testimony of two employees called by Counsel for
General Counsel with respect to what King said at two of the involved P/A meetings. Actually a
third employee testified about what King said at the third shift P/A meeting. Contrary to the
argument of DTR on brief, McVetta and Lehman did not testify that King based his speech on
objective, widely known facts, and focused on what customers might do, not DTR. Rather,
McVetta testified that King said that DTR was a sole source supplier and if the Union got into
the plant, customers “wouldn’t probably do business with us and we wouldn’t have jobs.”
(transcript page 15, emphasis added) In her affidavit to the Board, McVetta indicated that King
said “[I]f we had a Union in there customers would not want to deal with us because of the

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Union.” (transcript page 24, emphasis added) As noted above, Lehman, who attended another
meeting, testified that King told the employees that if they unionized, they “would lose sole
supplier source from Honda and Toyota and if this happened there would be a reduction of jobs
and therefore Honda and Toyota could no longer rely on us as source suppliers” (transcript
page 33, emphasis added). Lehman also testified that King pretty much said that if Honda and
Toyota or any other customer became concerned about the reliability of DTR’s production flow,
then those customers would look for other sources, and if the customers pulled some business
away from DTR because of fear of reliability, that would mean that there would be less work and
fewer jobs at DTR. As set forth above, Gahman testified that King said if UAW was to get into
DTR, it would lose its sole supplier status, customers would allow other companies to compete
with DTR for some of the parts that it was making, layoffs would result, there had never been
layoffs at DTR but if UAW came in that policy would have to change, customers would be
concerned if there was a union at DTR and the possibility of a strike, and there would be layoffs
if customers pulled part or all of their business out of DTR.

As here pertinent, in Gissel, supra, at 618, the United States Supreme Court indicated
that the

a prediction as to the precise effects … [the employer] believes unionization will have on
… [the] company … must be carefully phrased on the basis of objective fact to convey
an employer’s belief as to demonstrably probable consequences beyond … the
employer’s control… [Emphasis added]

More often than not there are at least two ways to view something. Here, one way is to view
situation from the perspective of the Company. If the employer believes that something is likely,
it might be argued that this sufficient. But it appears that what really matters is the impact the
employer’s statements have on the employees. While the expression of views is to be
encouraged, if they contain an implied threat, they are in violation of the Act. What the employer
may think it knows is of no consequence if the employer does not carefully explain, giving the
employees the objective facts upon which it basis its prediction. If the employer believes that
there are demonstrably probable consequences, explain them fully to the employees, giving
valid examples to support its statements (if such examples exist). To make conclusionary
statements to employees without carefully phrasing the statements on the basis of objective fact
might unjustifiably raise questions and concerns in the minds of the employees, and invite
scrutiny. DTR’s approach here did just that. Again the Respondent set it up so that to believe
DTR’s position one must rely on King’s word alone. The problem with this approach is that I did
not find King to be a credible witness. I credit the testimony of the three employees who testified
about what King said at the three P/A meetings they attended. King did explain to the
employees what a sole source supplier is. But he did not carefully phrase his predictions on the
basis of objective fact. The employees walked away from the meetings with the understanding
that if they had a Union, “customers would not want to deal with … [DTR],” DTR “would lose [its]
sole … source [standing] from Honda and Toyota and if this happened, there would be a
reduction of jobs,” and DTR’s layoff “policy would … have to change.” King intended to make
the employees fear the loss of their jobs and in taking the approach he did; he succeeded in
conveying this fear. The Respondent violated the Act as alleged in paragraph 8 of the
complaint.

Paragraph 9 of the complaint alleges that on or about September 25, 26, and in late
September 2002 by its representatives David Berry, Rick Mead, Roger Helms and David Byglin,
at Respondent’s facility disparately enforced its solicitation policy and its uniform policy against
employees showing their support for the Union. General Counsel on brief contends that the
testimony of Carnahan and Gahman on this issue should be credited, taking into consideration

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that the Respondent presented no witnesses to rebut or refute their testimony; that
Respondent’s actions in prohibiting Gahman from wearing a union hat and a union button,
while allowing other employees to wear non-union related items cannot be said to be a
nondiscriminatory approach to its uniform rule; and that in E.I. Dupont Nemours, 263 NLRB 159,
166 (1982) the Board held that a supervisor’s statements to an employee that he should not
wear various items with pro-union insignia was coercive and violated Section 8(a)(1) of the Act.
The Respondent on brief argues that the Board held in Beverly California Corp., 326 NLRB 232,
261-262 (1998) no violation of the Act where vague evidence of disparate enforcement of a
dress code was merely an isolated incident; that Carnahan was never disciplined for wearing a
hat or pin; and that there is insufficient evidence to support a finding that Respondent violated
Section 8(a)(1) of the Act by disparate enforcement of Respondent’s uniform policy.

As pointed out by Counsel for General Counsel, Respondent presented no witnesses to
rebut or refute the testimony of Carnahan and Gahman, which testimony is credited. Contrary to
the impression Respondent attempts to convey on brief, the issue is not discipline. Rather it is
the disparate enforcement of the uniform policy. The wearing of a union hat or pin is a protected
Section 7 activity. The Respondent has not shown that it has a business justification for its
prohibition. And the Respondent allowed the wearing of a Bengals hat at the same time it
prohibited Gahman from wearing a UAW hat and pin. The Respondent violated the Act as
alleged in paragraph 9 of the complaint in that it disparately enforced its uniform policy against
showing support for the Union.

Paragraph 10 of the complaint alleges that in late August or early September 2002 King,
at Respondent’s facility, gave the impression that employees’ union activities were under
surveillance. Since there does not appear to be any evidence of record to support this
allegation, it will be dismissed.

Paragraph 11 of the complaint alleges that on or about September 17 Respondent selected
Gahman for a drug test and discharged him on September 25 because he formed, joined and
assisted the Union and engaged in concerted activities. General Counsel on brief contends that
the Respondent’s decision to terminate Gahman was discriminatory, pretextual and violative of
Section 8(a)(1) and (3) of the Act; that the results of the Gahman’s second specimen was
reported on September 19 about 2.5 hours prior to the report of the third specimen and yet the
Respondent did not take any action on it until September 25; that while the Respondent asserts
that the lab report on the second specimen, namely,

“THE TEMPERATURE OF THE SPECIMEN AT COLLECTION WAS OUTSIDE OF RANGE
FOR A NORMAL URINE (32-38 C/90-100 F).
SPECIMEN SUBSTITUTED: NOT CONSISTENT WITH NORMAL
HUMAN URINE

should be read as two separate statements, no evidence was adduced at the trial herein that
this was not a single statement about the temperature and a descriptive statement that the
temperature is inconsistent with human urine; that King admitted that he did not contact the
medical review officer to explain the results of the second specimen30; that King did contact the
Continued
30 Counsel for General Counsel cites transcript page 475. At page 475 King was asked if he
ever called Quest Diagnostics to determine what the analysis of Gahman’s specimen test
meant. He did not. But Quest Diagnostics and the medical review officer, Dr. Young, are not one
and the same. Nonetheless, notwithstanding the fact that King did not understand what the
Quest Diagnostic report meant regarding Gahman’s second specimen, he only went to Weigt,

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_________________________
medical review officer to explain the results of the second test on Evans specimen;
Respondent’s knowledge of Gahman’s union activity is admitted; that Gahman was the subject
of several independent 8(a)(1) violations; that the Board has held that unlawful discrimination
against one pro-union employee based on antiunion animus supports an inference that same
animus motivated its actions against other employees who supported the union, Embassy
Vacation Resorts, 340 NLRB No. 94 (September 30, 2003); that after Gahman participated In
the Callahan peer review and renewed his open support for the Union, the Respondent used the
report of the test of the second specimen to justify his termination; that the Respondent never
explained the delay in learning the results of the second specimen; that Respondent
perfunctorily and unlawfully took the opportunity to terminate Gahman; and that the Board has
concluded that an employer’s failure to conduct a fair investigation is evidence of discriminatory
intent, increasingly so in the context of hostility toward the union, Metal Cutting Tools, Inc. 191
NLRB 536, 542-43 (1971). The Respondent on brief argues that General Counsel has failed to
demonstrate a prima facie case of anti-union animus in the selection of Gahman for a random
drug test and in the discharge of Gahman; that King’s decision was made with the knowledge
that all procedures were followed in Gahman’s test and Gahman’s falsification was a serious
offense for which discharge was the proper course of action; that even assuming that General
Counsel made a prima facie case, DTR has met its burden of demonstrating that Gahman was
lawfully discharged for submitting a fraudulent specimen during his random drug test; that
Gahman’s testimony that his second specimen was discarded is belied by the fact that he
signed the chain of custody form, and never told DTR or the Board about this assertion; that the
only other case involving an employee, Evans, who submitted a fraudulent drug specimen
during a random drug test, the employee was also terminated, only two weeks after Callahan;
and that Graham was treated no differently than Evans.

As set forth in Fluor Daniel, Inc., 304 NLRB 970, at 970 (1991),

In Wright Line, 251 NLRB 1083 (1980) enfd. 662 F.2d 899 (1st Cir. 1981) cert. denied
455 U.S. 989 (1982),4 the Board set forth its causation test for cases alleging violations of
the Act turning on employer motivation. First, the General Counsel must make a prima facie
showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in
the employer’s decision. Once accomplished, the burden then shifts to the employer to
demonstrate that the same action would have taken place notwithstanding the protected
conduct. It is also well settled, however, that when a respondent’s stated motives for its
actions are found to be false, the circumstances may warrant an inference that the true
motive is an unlawful one that the respondent desires to conceal.5 The motive may be
inferred from the total circumstances proved. Under certain circumstances the Board will
infer animus in the absence of direct evidence.6 The finding may be inferred from the record
as a whole.7
__________
4 Approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
5 Shattuck Denn Mining Corp. v. NLRB, 362 F. 2d 466, 470 (9th Cir. 1966).
6 Associacion Hospital Del Maestro, 291 NLRB 198, 204 (1988); White-Evans Service Co.,
285 NLRB 81, 82 (1987).
7 ACTIV Industries, 277 NLRB 356, 374 (1985); Heath International, 196 NLRB 318, 319
(1972)

In order to establish a prima facie violation of Section 8(a)(1) and (3) of the Act, General
who is a licensed practical nurse who has been trained to collect urine specimens. (transcript
page 475). There is no evidence of record that King contacted the medical review officer.

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Counsel must establish union activity, employer knowledge, animus and adverse action taken
against those involved or suspected of involvement which has the effect of encouraging or
discouraging union activity. Inferences of animus and discriminatory motivation may be
warranted under all the circumstances of a case, even without direct evidence. Evidence of
false reasons given in defense may support such inferences.

Here Gahman had engaged in union activity, King unlawfully coerced him to stop his union
activity, King - from Gahman’s point of view - made the peer review on which Gahman sat on
his own time a nullity, Gahman resumed his union activity, DTR’s supervisors unlawfully told
Gahman to stop certain of his union activity, and then Gahman was terminated at the end of the
shift after he was told to take off his UAW hat and pin and challenged the directive. As noted
herein, these were not the only indicia of antiunion animus on the part of DTR. Counsel for
General Counsel has made a prima facie case with respect to Gahman’s termination. It has not
been demonstrated that the selection of Gahman for a random drug test was in any way related
to any union or concerted protected activity. Contrary to Gahman’s belated assertion under
oath, the evidence of record does not demonstrate that the second specimen was discarded.
The evidence of record demonstrates that the second specimen was sealed and sent to the lab.

The burden of going forward has shifted to DTR to demonstrate that Gahman would have
been terminated notwithstanding the protected conduct. As noted above, it is also well settled
that when a respondent’s stated motives for its actions are found to be false, the circumstances
may warrant an inference that the true motive is an unlawful one that the respondent desires to
conceal. Here, DTR’s business justification for Gahman’s termination is the lab report on the
second specimen. As indicated above, Counsel for General Counsel contends, with respect to
the lab report on the second specimen, namely,

“THE TEMPERATURE OF THE SPECIMEN AT COLLECTION WAS OUTSIDE OF RANGE
FOR A NORMAL URINE (32-38 C/90-100 F).
SPECIMEN SUBSTITUTED: NOT CONSISTENT WITH NORMAL
HUMAN URINE[,]

that no evidence was adduced at the trial herein that this was not a single statement about the
temperature and a descriptive statement that the temperature is inconsistent with human urine.
As conceded by Weigt, the first of the two above-described sentences is based solely on her
check mark regarding temperature on the chain of custody form. (In this regard, it is noted that
the temperature on the third specimen was also outside the specified range but it was accepted
for processing because Dr. Young indicated that he observed Gahman producing the
specimen.) Quest Diagnostics could not and did not do any testing with respect to the
temperature of Gahman’s second specimen at the time of collection. As indicated on the chain
of custody form the temperature reading must be made within 4 minutes of production.
“OUTSIDE OF RANGE FOR NORMAL URINE” could be consistent with “NOT CONSISTENT
WITH NORMAL HUMAN URINE.” In other words, the lab may have concluded that since the
second specimen at the time of collection did not register on the temperature gauge on the
container, it was not consistent with normal human urine. The “SPECIMEN SUBSTITUTED”
may be nothing more than a conclusion reached from the fact that the second specimen was
outside the temperature range for normal urine. Apparently, no further testing, as in the case of
Evans (which involved an adulterant), was done to determine what the substance was if it was
not human urine. The second page of Respondent’s Exhibit 11 shows that Gahman declined to
have his third specimen, which produced positive test results, retested at his own expense
($150). So an adulterated specimen (Evans) is further tested. With a positive test result on
Gahman’s third specimen he is offered the opportunity for retesting. But with Gahman’s second
specimen, which the Respondent is claiming is fraudulent and justifies his termination, he is not

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offered further testing of retesting. Unless the lab was relying on the lack of a temperature
reading to reach the conclusion “SPECIMEN SUBSTITUTED,” the Respondent has not shown
why Gahman was not accorded the opportunity to have a second test or a retesting on the
second specimen. King testified that he had to get an understanding what the lab report on
Gahman’s second specimen meant. In other words, by King’s own admission the lab report is
not clear on its face. King admitted that he did not contact Quest Diagnostics to explain its
report on Gahman’s second specimen. It was not established, even with the name of the
certifying scientist on the report, that Quest Diagnostics would have provided this information to
King over the telephone. However, what was established is that King could get information by
telephone about drug test results from the medical review officer, Dr. Young. King did contact
the medical review officer to explain the results of the second test on Evans’ specimen. But with
the lab report on Gahman’s second specimen, according to King’s testimony, he went to Weigt,
who - as here pertinent - is a licensed practical nurse trained and experienced in the area of
collecting urine specimens for drug tests. It was not shown by DTR that Weigt is a certifying
scientist like Darlene Manojlovski, whose name appears on the lab report of Gahman’s second
specimen. It was not shown by DTR that Weigt is a medical review officer like Dr. Young, who -
after contacting Quest Diagnostics (if necessary), undoubtedly could have given King the
understanding he was seeking with respect to what the lab report on Gahman’s second
specimen meant. Whatever doubt there was with respect to the lab report regarding Gahman’s
second specimen was resolved by King against Gahman without according him the same
treatment that Evans received. Gahman was treated disparately and DTR did not explain what
justified such disparate treatment. As the Board pointed out at page 3 in Embassy Vacation
Resorts, 340 NLRB No. 94 (September 30, 2003)

To support an inference of unlawful motivation, the Board looks to such factors as
inconsistencies between the proffered reason for the discipline and other actions of the
employer, disparate treatment of certain employees compared to other employees with
similar work records or offenses, deviation from past practice, and proximity in time of
the discipline to the union activity. E.g. W.F.Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th
Cir. 1995).

DTR has not shown that Gahman would have been terminated notwithstanding the protected
conduct. With respect to Gahman’s termination, DTR violated the Act as specified in paragraph
11(B) and (C) of the complaint.

Paragraph 12 of the complaint alleges that on or about August 30 Respondent
suspended its employee John Callahan, on or about September 6 it discharged Callahan, on or
about September 18 it suspended Callahan after an internal peer review group overturned
Callahan’s September 6 discharge, and on or about January 3, 2003, it failed to return Callahan
to his former or substantially equivalent position of employment, engaging in this conduct
because Callahan formed, joined and assisted the Union and engaged in concerted activities.
General Counsel on brief contends that the record is replete with incidents that DTR treated
Callahan differently than other employees in that other employees were disciplined for making
bad parts, but never discharged, suspended or even suspended for almost 3 months; that no
evidence was submitted to show that Callahan intentionally made bad parts; that a prima facie
showing has been made in that Callahan engaged in union activity in plain view of King,
Williams admitted that he knew that King was a union supporter in that he observed Callahan
engage in union activity in the parking lot, DTR engaged in antiunion animus, and Callahan was
suspended, terminated, and suspended; that King’s decision to recommend that Callahan be
dismissed was made the day after the P/A meetings with associates; that the Respondent’s
unwillingness to follow the decision of its own peer review panel is further demonstrative of its
unlawful motivation; that Respondent intended to get rid of Callahan in whatever fashion it

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could; that the severity of discipline issued to pro-union Callahan is not only extraordinary but
unparalled, and it supports an inference of unlawful motivation; that Callahan was transferred to
the second shift in the mixing department, and King’s own notes indicate that he knew that the
Union did not have support on the second shift; that DTR has submitted no explanation for the
difference in treatment between Callahan and its employees Davis, Shine, Brown, Baldazo,
Smith, and Worthy, beyond King’s insistence that Callahan intentionally ran bad parts; that
Williams testified that he did not conclude that Callahan intentionally ran pad parts until after
Callahan’s discharge and before his peer review; and that conveniently the parts run by
Callahan were not available at the trial herein as DTR conveniently discarded all of the parts
under the ruse that it immediately scraps all defective parts. The Respondent on brief argues
that General Counsel failed to prove that DTR was motivated by anti-union animus; that
Callahan was discharged because DTR’s investigation led only to one logical conclusion,
namely, Callahan acted intentionally; that assuming the General Counsel did make a pima facie
case, DTR met its burden under Wright Line, supra in that Callahan would have been
suspended and terminated for intentionally running bad parts even absent his union activities;
that Board cases have held that impairing production, either intentionally or not, is a lawful
reason for termination, Meaden Screw Products, 325 NLRB 762, 769-71 (1998) and Kawasaki
Motors Corp. 268 NLRB 936, 940-42 (1984); that Callahan’s explanation that he was too fast at
running the part is not credible in view of the fact that this explanation was first offered at the
trial herein, and Callahan is not credible since he lied on his DTR job application providing false
dates for work experience when he was actually serving a prison sentence of over 5 years in the
Ohio prison system as a convicted felon; that the argument that other employees were not
terminated for running bad parts does not help Callahan because it was not shown that the
other employees ran as many bad parts as Callahan and it was not shown that any of the other
employees intentionally ran bad parts; that all of the other involved employees were counseled
or disciplined but since their offense was less than Callahan’s, their treatment was also less
severe; that Callahan was placed in his new position upon his return to work due to valid
concerns that he had intentionally run bad parts; that Callahan did not receive a cut in pay or
benefits upon his return to work following his suspension; and that his placement on the second
shift was due to the fact that it was the shift where he was needed in mixing.

Callahan engaged in union activity and DTR knew it. He was suspended, terminated,
and then suspended again when the majority of the peer review panel that DTR set up did not
go along with DTR’s termination of Callahan. The violations of the Act found herein demonstrate
the anti-union animus of DTR.

Has DTR demonstrated that Gahman would have been terminated notwithstanding the
protected conduct? In his post peer review panel decision letter suspending Callahan for about
three and one half months, King wrote “you destroyed critical safety parts supplied to our
customers.” This sentence makes it sound like Callahan sabotaged a critical part used in the
fuel line of automobiles and the parts were “supplied to … [DTR’s] customers.” There was no
showing that any part that Callahan assembled on August 27 or the 28 was supplied to a DTR
customer. However, no one testified to deny Callahan’s testimony that approximately a month
earlier his supervisor, Risner, asked him to come in off vacation to run replacement parts on
assembly line 3 for Honda after someone had run “thousands of bad parts,” and someone had
sent the bad parts to Honda. The Respondent did not deny Callahan’s testimony that in that
situation the larger piece of metal was bad. Staley admitted that if there is a problem with the
large metal block, it could throw the small metal block off.

The burden has shifted to the employer to demonstrate that the same action would have
taken place notwithstanding the protected conduct. DTR could have saved a representative
number of the parts assembled by Callahan on August 27 and 28, put the “NO GOOD,

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SAMPLE” DTR red tag it has on the parts as it did with Respondent’s Exhibits 25 and 27, put
them in a cardboard box, and taped a “NO GOOD, SAMPLE” DTR red tag to the outside of the
box so that no one would mistakenly send them to a customer. Then DTR could have shown the
parts at the trial herein so that they could be compared.31 DTR chose not to take this approach.
Instead DTR relies on testimony about the parts assembled by Callahan on August 27 and 28.
But DTR does not have the inspectors, Schrader or Stewart, or the person who counted the
alleged bad parts, Blossard, testify. Rather it relies on the testimony of supervisors King and
Williams, and hourly employee Staley. It was conceded by Staley that he himself made a bad
part or parts on the involved machine on August 28. On brief DTR claims that “Staley
intentionally made a bad part but the angle was only slightly off and was attributable to improper
use of the bar. (Tr. 510, 513)”32 This might refer to parts that Staley made after Callahan went to
lunch but it does not refer to parts Staley made before Callahan went to lunch. Staley testified
that he himself ran one or two parts, they were bad parts and he got engineering out there to
“test run the machine to - - to try to figure this out.” (transcript page 510) Staley did not testify
that he made the bad parts intentionally. And he certainly did not do this while Callahan was
there and before Caldwell was called to the machine. Staley also testified that he and Caldwell
concluded that if the assembler laid the part on the bar at a 90 degree angle to the bar, the
angle of the part would be off resulting in a bad part; and that he and Caldwell found that if the
part was placed at a 45 degree angle to the bar it would set up okay. Williams, on the other
hand, testified that even if the hose was placed at a 90 degree angle to the bar, the angle
should not be bad if the small metal block was properly resting on the bar. Williams testified that
when Staley came to the involved assembly machine on August 28, and Staley ran parts in his
presence, the parts were good. This appears to contradict Staley’s and Callahan’s testimony.
Williams then testifies that they talked with Caldwell who could see no problem with the
machine. If, according to William’s testimony, the parts that Staley made were good, it is not
clear why there would have been any need to call Caldwell over. But Staley provided the reason
when he testified that he himself ran one or two parts, they were bad parts and he got
engineering, Caldwell, out there to “test run the machine to - - to try to figure this out.” (transcript
page 510) According to Staley, Caldwell was called “[a]fter I couldn’t figure out why we’re having
these [bad parts].” (transcript page 509) Staley also testified that he made some parts with
Callahan and he did not remember Williams being present. Williams testified that Callahan was
not there for the inspection process. And Callahan testified that Williams was not there when
Callahan and Staley ran the bad parts. I conclude that when Staley first came to the machine
Williams was not present. Callahan and Staley, and then Staley alone ran parts and they were
all bad. Staley told Callahan that it was the machine and Callahan should go to lunch while
Staley was going to get someone else to look at the machine. Callahan went to lunch. While
Callahan was at lunch Caldwell looked at the machine with Staley and Williams present. During
that period it appears that Staley ran some parts and it was finally determined that if the parts
were laid on the bar a certain way the parts would be good. When Callahan returned he was
told to change the way he laid the parts on the bar while they set.

In his memorandum prepared at the behest of Ream for the peer review panel, Williams
wrote “[c]ame to the conclusion that there was nothing wrong with the fixture, but it was the way
the parts were being laid on the bar after assembly. Moved the bar to a distinct location and
turned the pieces at an angle. …. He ran good parts for the rest of the day….” (General

31 No one denied Callahan’s testimony that there was a problem with the big metal part on
parts shipped to Honda in July 2002. The tubes which extend from the large block and the small
block and are inserted into the rubber hose are bent, and it appears that the angles are
compound when the face of the block from which the tubes extend is taken into consideration.
32 Respondent’s brief, page 10.

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Counsel’s Exhibit 8, emphasis added) There is no assertion in the memorandum that Callahan
intentionally made bad parts. There is no assertion in the memorandum that the parts were so
bad that Callahan had to be acting intentionally, and the problem could not be accounted for by
the way he was laying the parts on the bar. Indeed William’s memorandum seems to indicate
just the opposite. Yet Williams testified that he, in effect, told Huffer and King before they met
with Callahan on August 29 that the parts were so bad that Callahan had to be acting
intentionally, and the problem could not be accounted for by the way he was laying the parts on
the bar. When asked on cross-examination when he came to the conclusion that Callahan made
the bad parts intentionally, Williams answered that he was not sure of the exact date. When
asked further if it was before or after the peer review, Williams testified “I do believe it was
before the peer review.” (transcript page 412) Williams lied about this material fact while under
oath. This became DTR’s strategy after King et al realized that employees who performed this
kind of work, who knew that there was scrap, who knew that there were variations, and that
machines do not always perform perfectly would not buy what DTR was selling. No one,
including the named supervisor – Risner, denied Callahan’s testimony that just a month before
his termination thousands of bad parts involving the larger metal block were run and they were
sent to Honda.

It was not demonstrated that when Callahan was terminated, Williams had concluded
that Callahan acted intentionally, and Williams had told his superiors that Callahan had acted
intentionally. There is no mention of Callahan acting intentionally in the termination letter dated
September 6 from King to Callahan. Only after a majority of the peer review panel, which was
not shown the parts and which did not have the opportunity to speak with Staley, overturned
Callahan’s termination and found that Callahan should be reinstated with back pay, did King
write to Callahan in General Counsel’s Exhibit 20 falsely accusing Callahan by indicating that he
“destroyed critical safety parts supplied to our customers.” (emphasis added) King lied under
oath about addressing the peer review panel in his attempt to have Callahan’s termination
confirmed. King took an extraordinary measure, he knew it, and he was not going to admit it at
the trial herein even though he was under oath. King also lied to Callahan when he told him on
August 30 that he had spoken with Staley as Callahan had requested. King did not deny
Callahan’s testimony that on August 30 King said “we don’t need your type running the
machinery here anymore. I want you to turn your time card in. You can talk to your wife on the
way out, tell her you … can pick her up and you’ll hear from us in the mail shortly.” (transcript
page 118) While Callahan’s letter of termination is dated September 6, Callahan was effectively
fired on August 30 with the above-described King statement. And this occurred before King
spoke with Staley. There was no real need for King to speak with Staley before telling Callahan
to get out. What occurred did not depend on what Staley would say. What occurred was
occasioned by something else, namely Callahan’s union activity. The Respondent did not meet
its burden of demonstrating that Callahan’s suspension, termination, and suspension would
have taken place notwithstanding his protected conduct.

In January 2003 DTR did not return Callahan to his former or substantially equivalent
position of employment. Obviously DTR did not return Callahan to his former position but the
Respondent argues that the position to which it returned Callahan is substantially equivalent
notwithstanding the fact that DTR denied Callahan bidding rights when he returned. The only
employee who worked both in hose assembly and in mixing who testified at the trial herein was
Callahan. Callahan testified that mixing was very dirty and physical work. King did not deny this.
Rather, King testified that mixing is not the dirtiest, heaviest, and least attractive job in the plant.
That is not, however, the issue. The issue is was Callahan returned to a substantially equivalent
position of employment. The obvious answer is he was not. Callahan did not have bidding
rights, he was placed on a different shift, and King did not deny that the work in mixing is dirty
and physical. DTR violated the Act as alleged in paragraph 12(A), (B), (C), (D) and (E) of the

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complaint.

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. By engaging in the following conduct, Respondent committed unfair labor practices
contrary to the provisions of Section 8(a)(1) of the Act:

(a) In early summer 2002 at its facility, by its representative Thomas King, giving
Gahman the impression that his union activities were under surveillance.

(b) In early summer 2002 at its facility, by King, threatening Gahman with discipline if he
continued his support and activities on behalf of the Union.

(c) On or about August 29, by King, at the Respondent’s facility, threatening employees
with layoff and job loss if the employees selected the Union as their bargaining representative.

(d) On or about September 25 by its representatives David Berry, Rick Mead, Roger
Helms and David Byglin, at Respondent’s facility, disparately enforcing its uniform policy against
Gahman who showed his support for the Union.

4. By engaging in the following conduct, Respondent committed unfair labor practices
contrary to the provisions of Section 8(a)(1) and Section 8(a)(1) and (3) of the Act:

(a) On or about September 25 discharging its employee Daniel Gahman because he
formed, joined and assisted the Union and engaged in concerted activities.

(b) On or about August 30 suspending its employee John Callahan.

(c) On or about September 6 discharging John Callahan.

(d) On or about September 18 suspending John Callahan after an internal peer review
group overturned John Callahan’s September 6 discharge.

(e) On or about January 3, 2003, failing to return John Callahan to his former or
substantially equivalent position of employment, engaging in the conduct described above in (4)
(b), (c), (d), and (e) because John Callahan formed, joined and assisted the Union and engaged
in concerted activities.

5. The above-described labor practices affect commerce within the contemplation of
Section 2(6) and (7) of the Act.

6. Respondent has not committed any other unfair labor practices alleged in the
complaint.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find

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that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged Gahman and Callahan, it must offer
Gahman reinstatement, and make Gahman and Callahan whole for any loss of earnings and
other benefits, computed on a quarterly basis, from Gahman’s date of discharge to date of
proper offer of reinstatement to Gahman, and from August 30, 2002 to January 6, 2003 for
Callahan, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended33

ORDER

The Respondent, DTR Industries, Inc., of Bluffton, Ohio, its officers, agents, successors,
and assigns, shall

1. Cease and desist from

(a) Giving an employee the impression that his union activities are under surveillance.

(b) Threatening an employee with discipline if he continued his support and activities on
behalf of the Union.

(c) Threatening employees with layoff and job loss if the employees selected the Union
as their bargaining representative.

(d) Disparately enforcing its uniform policy against an employee who shows his support
for the Union.

(e) Unlawfully discharging Daniel Gahman because he formed, joined and assisted the
Union and engaged in concerted activities.

(f) Unlawfully suspending John Callahan.

(g) Unlawfully discharging John Callahan.

(h) Unlawfully suspending John Callahan after an internal peer review group overturned
John Callahan’s September 6 discharge.

(i) Unlawfully failing to return John Callahan to his former or substantially equivalent
position of employment.

(j) In any like or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer Daniel Gahman full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Daniel Gahman and John Callahan whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them in the manner set forth in the
remedy section of the Decision.

(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges, and within 3 days thereafter notify the employees in
writing that this has been done and that the discharges will not be used against them in any
way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.

(e) Within 14 days after service by the Region, post at its facility in Bluffton, Ohio copies
of the attached Notice marked “Appendix.”34 Copies of the Notice, on forms provided by the
Regional Director for Region 8 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where Notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the Notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the Notice
to all current employees and former employees employed by the Respondent at any time since
July 22, 2002.

(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.

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

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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C.

____________________
John H. West
Administrative Law Judge

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APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT give you the impression that your union activities are under surveillance.

WE WILL NOT threaten you with discipline if you continue your support and activities on behalf
of the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW.

WE WILL NOT threaten you with layoff and job loss if you select the INTERNATIONAL UNION,
UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, UAW as your bargaining representative.

WE WILL NOT disparately enforce our uniform policy against you if you show your support for
the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW.

WE WILL NOT unlawfully suspend, discharge, or fail to return you to your former or
substantially equivalent position of employment because you form, join and assist the
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, UAW and engage in concerted activities.

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 the Board’s Order, offer Daniel Gahman full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make Daniel Gahman and John Callahan whole for any loss of earnings and other
benefits resulting from their discharges, less any net interim earnings, plus interest.

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WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharges of Daniel Gahman and John Callahan, and WE WILL
within 3 days thereafter notify the employees in writing that this has been done and that the
discharges will not be used against them in any way.

DTR Industries, Inc.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1240 East 9th Street, Federal Building, Room 1695, Cleveland, OH 44199-2086
(216) 522-3716, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (216) 522-3723.