Freightliner Custom Chassis Corporation

National Labor Relations Board - Administrative Judge Opinions

Apr 11, 2006

11-CA-020842 (N.L.R.B. Apr. 11, 2006)

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Gaffney, SC

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

FREIGHTLINER CUSTOM CHASSIS
CORPORATION

and Cases 11-CA-20842
11-CA-20877

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

Jasper C. Brown, Esq., for the Government1
John J. Doyle, Jr., Esq., and
Mitchell Cogen, Esq., for the Company2

DECISION

Statement of the Case

WILLIAM N. CATES, Administrative Law Judge. These cases involve an
interference with employee rights and a wrongful discharge. The cases were tried before
me on January 23 and 24, 20063, in Gaffney, South Carolina. The cases originate from
charges filed by International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW (Union). The charge in case 11-CA-20842 was
filed on August 9, and amended on October 31. The charge in case 11-CA-220877 was
filed on September 14, and amended on October 31. The prosecution of these cases was
formalized on October 31 when the Regional Director for Region 11 of the National
Labor Relations Board (Board), acting in the name or the Board’s General Counsel,
issued an Order Consolidating Cases Consolidated Complaint and Notice of Hearing
(complaint) against Freightliner Custom Chassis Corporation (Company).

Specifically it is alleged that from on or about May through July the Company
through the actions of its agents and supervisors violated Section 8(a)(1) of the National
Labor Relations Act, as amended, (Act) by promulgating and enforcing an unlawful no-
talking rule against pro-Union employees, disparately enforcing its no solicitation/ no
distribution rule against pro-Union employees, interfering with lawful union hand billing
outside its facility entrance, surveillance of union activity by recording the identity of

1 I shall refer to Counsel for General Counsel as Government Counsel or Government.
2 I shall refer to Counsel for the Respondent as Company Counsel or Company
3 All dates herein are 2005 unless otherwise indicated.

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those engaged in lawful union hand billing, interrogating its employees concerning their
union activities, and threatening it employees with unspecified reprisals because of their
union activities. It is also alleged the Company violated Section 8(a) (3) and (1) of the
Act by on or about July 22 suspending and on or about July 29 terminating its employee
Raquel Brown (Brown) because she engaged in protected conduct and to discourage
membership in a labor organization and to discourage other employees from engaging in
like activities.

The Company denies having violated the Act in any manner alleged in the
complaint.

On the entire record, including my observation of the demeanor of the witnesses,
and after considering briefs filed by Counsel for the Government and Company, I
conclude, as more fully explained below, the Company violated the Act substantially as
alleged in the complaint.

The Company is a Delaware corporation with an office and place of business
located in Gaffney, South Carolina, where it has been, and continues to be, engaged in
the business of manufacturing chassis’ for commercial vehicles. During the past 12
months, a representative period, the Company in conducting its business operations
purchased and received at its Gaffney, South Carolina, facility goods and materials
valued in excess of $50,000 directly from points outside the State of South Carolina. The
parties admit and I find the Company is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.

The parties admit and I find the Union is a labor organization within the meaning
of Section 2 (5) of the Act.

The parties admit and I find that President/General Manager Reid Bigland
(General Manager Bigland), Human Resource Manager Mike Tolbert (HR Manager
Tolbert) and Production Supervisor Britt Bernhardt (Production Supervisor Bernhardt)
are supervisors and agents of the Company within the meaning of Section 2(11) and (13)
of the Act. The actions and allegations underlying this case arise from or are related to
the Union’s 2005 organizing campaign that commenced that Spring. At pertinent times
herein the Company and Union have been parties to a neutrality agreement pursuant to
which the Company agrees its employees may decide whether they desire to be
represented by a union without interference by the Company.

I. Allegations, Facts and Findings
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A. No Talking Rule Against pro-Union Employees

It is alleged at paragraph 8(a) of the complaint the Company by Production
Supervisor Bernhardt in mid-June and HR Manager Tolbert in late-June and July 20,
promulgated and enforced an unlawful no-talking rule against pro-Union employees in
violation of Section 8(a)(1) of the Act.
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The Company issued a No-Soliciting Memorandum sometime during the early
part of 2005, “March, April time frame probably.”

Seven year employee and quality control inspector Billy Ridings (Ridings)
worked on Line II in the summer of 2005. Ridings and HR Manager Tolbert spoke alone
about the Union in late June on the assembly line. According to Ridings, HR Manager
Tolbert told him someone had complained Ridings was talking about the Union on the
shop floor. Tolbert told Ridings he did not care if he was for or against the Union he
could not talk about it on the shop floor. Ridings testified the Team Leader for Service
had an antiunion T-shirt hanging in his office visible to all employees.

HR Manager Tolbert acknowledged he spoke with Ridings, after getting a report
Ridings was soliciting for the Union on the assembly line, but, stated he simply told
Ridings he could not solicit for the Union on working time and asked he not do so.
Ridings agreed he would not.

Seven year assembly employee Georgia West (West) testified she and HR
Manager Tolbert spoke in late June or early July in the work area about the Union. West
testified Tolbert explained he could care less whether “anybody wanted the Union or
not,” “he wasn’t . . . against it or for it . . . he was neutral; but that we could not . . . talk
about it on Company time or in the working areas.” West said she and other employees
had, and could, for example, talk about and solicit for Avon products, Girl Scout cookies
and lingerie sales while working.

On July 20, West and employee Jim Upp, were assigned to cleaning (sweeping)
an outside parking lot because of a power failure that had shut down the assembly line
they worked on. West testified HR Manager Tolbert, approached and said he had a
complaint she was campaigning for the Union. West explained, “we’re out here
sweeping” and “I’m able to talk about it.” Tolbert responded, “not on Company time or
in working areas.” West protested saying from what she understood they could not hand
out leaflets or pass out literature but could “talk about it.” Tolbert replied, “No ma’am.
I’m telling you you can not.” Tolbert told West he didn’t care if she was for or against
the Union she just could not engage in union activities during working time.

HR Manager Tolbert acknowledged a conversation with West on July 20 in an
offline but working area outside the plant where employees were as a result of a power
failure on the assembly line. Tolbert said he spoke with West after an employee
complained West had approached him on the assembly line and asked him to join the
Union and mentioned a union card. Tolbert told West not to solicit employees “while she
was working and when another employee was working.” West responded she thought
she could talk about the Union anytime and “grabbed” Tolbert’s wrist and “twisted it
around” so as to be sure Tolbert would know exactly what time, 10:30 a.m., their
conversation took place. Tolbert stated the Company had a no-soliciting policy. Tolbert
testified employees were not prohibited from talking about religion, politics and sports in
the plant working areas.
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Raquel Brown testified she was speaking with a couple of her coworkers about
the Union while working on Line II in late-May. Brown stated Production Supervisor
Bernhardt approached, “and he told me that, you know, I couldn’t talk – to do it on my
own time” Brown said she told Bernhardt about her rights, “I said talking about the
Union is one of them and I know my rights.”

Production Supervisor Bernhardt did not recall having such a conversation with
Brown in May on the plant floor. Bernhardt acknowledged observing Brown talking to
employees about the Union and handing out literature, but he did not “remember seeing
her talking to people out on the shop floor.” Bernhardt spoke with other employees
telling them their union activities needed to be in the canteen or on the patios outside the
facility.

Production Supervisor Bernhardt did not deny the comments Brown attributes to
him. The remarks are in keeping with other ones made by Bernhardt. I credit Brown’s
testimony as out lined above.

Did the Company through its supervisors and agents promulgate and enforce a
rule against talking about the Union during working time, while allowing the discussion
of other nonwork-related subjects? Before addressing the question it is helpful to briefly
set forth Board law governing this type issue. The Board in Jensen Enterprises, Inc., 339
NLRB 877, 878 (2003) noted:

It is settled law that an employer may forbid employees from talking about
a union during periods when the employees are supposed to be actively
working, if that prohibition also extends to other subjects not associated or
connected with their work tasks. However, an employer violates the Act
when employees are forbidden to discuss unionization, but are free to
discuss other subjects unrelated to work, particularly when the prohibition
is announced or enforced only in response to specific union activity in an
organization campaign. [citations omitted]

It is clear the Company promulgated and enforced a rule against talking about the
Union during working time. The record also clearly demonstrates the Company allowed
discussion of various nonwork-related subjects during working time without interference,
or adverse action against its employees. The evidence establishes employees were free to
and discussed their views about religion, politics and sports. The employees sought
support for and spoke about Avon products, Girl Scout cookies, and lingerie sales.
Simply stated the employees discussed nonwork-related matters among themselves and
only when the subject matter was the Union did it become any kind of a problem.

I reject the Company’s contention it was simply responding to employee
complaints of harassment or that it spoke equally to these opposing the Union as
justification for its actions. First, there is no showing it responded to any complaints
involving any non work-related matters which it freely allowed. Second, even addressing
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those who opposed the Union is no defense because the prohibition is only against
conversations involving the Union.

Accordingly I find, as alleged, the Company by promulgating and enforcing a no-
talking rule against pro-Union employees, violated Section 8(a)(1) of the Act.

B. Disparate Enforcement of Company’s No Solicitations/No Distribution Rule
Against pro-Union Employees

It is alleged at paragraph 8(b) of the complaint that HR Manager Tolbert in late-
June disparately enforced the Company’s no solicitation/no distribution rule against pro-
Union employees.
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As noted earlier the Company issued a memorandum before the 2005 Union
campaign in which the employees were advised of the Company’s no-solicitation policy.
During the 2005 campaign there were pro-Union and antiunion “T” shirts prominently
displayed in working areas. According to employees Ridings and Vincent Edwin
Hambright an antiunion “T” shirt was displayed in the Service Department Team
Leader’s office. Employees Benita Michelle Wilson and Kristi Patterson testified they
observed solicitation in working areas on working time for Girl Scout Cookies, dinner
plates, doughnuts, Avon products and various fund raising initiatives. Patterson said
antiunion literature was placed on tables in working areas as well as on employees’ tool
boxes.

Brown testified HR Manager Tolbert talked with her in May or June along side
her work line. Tolbert told Brown “Bubba Belue, Second Shift Supervisor,” had told him
Brown “was getting cards signed” and was disrupting second shift employees. Brown
denied she had been getting cards signed or disrupting second shift employees and
Tolbert told her she “was not to pass out literature during working time and not in
working areas.” According to Brown, Tolbert said she could hand bill in the canteen,
break areas, restrooms and outside the plant.4

HR Manager Tolbert testified that in May, Supervisor Belue reported Brown was
staying after her first shift and soliciting for the Union during the second shift disrupting
the second shift employees. Tolbert said he thereafter went to Brown’s work station and
“I asked her to not do that, to not solicit for the Union while other people were working.”
Brown promised she would not. Tolbert testified he never threatened Brown at any time.

4 Government Counsel asks that this testimony be considered in support of complaint paragraph
8(f). Specifically Government Counsel argues that HR Manager Tolbert threatened Brown with
unspecified reprisals by telling Brown she had been disrupting second shift employees. Threatening
employees with unspecified reprisals if they engage in union or protected activities has a coercive effect on
employee Section 7 rights. This includes explicit or implicit threats. I, however, find no explicit or
implicit threat related to the exchange between Brown and Tolbert regarding Second Shift Supervisor
Belue. I shall dismiss paragraph 8(f) of the complaint.
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In the interest of maintaining production and workplace discipline an employer
can lawfully impose restrictions on oral and written workplace communications by its
employees. Employers may enforce valid no-solicitation rules even where the
solicitations involve union matters; however, such enforcement may not be disparately
enforced against pro-Union employee solicitations. Here it appears the Company did not
find solicitations for dinner plates, doughnuts and fund raising activities to disrupt
employees but did find disruptive solicitations for the Union on the second shift assuming
Brown made such solicitations. Tolbert’s instructions to Brown were “to not solicit for
the Union while other people were working” but there is no indication in this record that
he had any problem with solicitations for any other purposes.

I find, as alleged, the Company through HR Manager Tolbert, in late June,
disparately enforced the Company’s no solicitation/no distribution rule against pro-Union
employees in violation of Section 8(a)(1) of the Act.

C. Interference with Lawful Hand Billing and Surveillance

It is alleged at paragraphs 8(c) and (d) of the complaint that an unidentified male
security guard interfered with lawful union hand billing outside the facility entrance on
July 1 and August 26 and surveiled union activity on July 1, by recording the identity of
lawful hand billers.
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Employee West handed out union flyers or leaflets on the evening of August 26 at
the rear entrance door to the Company facility. West positioned herself at the right of the
door where employees exit the plant. She was approached by a female security guard
and:

She come out and told me that I could not hand out leaflets and that I
needed to get off the premises, and I told her I was told that I could hand
out leaflets; and she said, no ma’am, you can not. You need to leave. So I
left.

At around 11p.m., on July 1, Brown handbilled at the front entrance to and near
the front doors of the plant. Brown distributed hand bills on behalf of the Union in-plant
organizing committee. A male security guard, whom Brown did not know, approached
telling her to leave the premises and go out to the road. Brown told the security guard
she had a right to hand bill and was going to do so. The security guard told Brown he
had “orders from management” not to allow her to hand out literature. Brown told the
security guard she worked there and was not going anywhere. The security guard asked
Brown for her name and Company badge number which she provided. Brown said the
security guard did not know if she was an employee or an outside organizer.

The Company concedes the facts regarding these two complaint allegations but
asserts the allegations are without merit as a matter of law. I am persuaded the
Company’s legal contentions are wrong.

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The conceded facts show that around 11:00 p.m. on July 1, Brown hand billed at
the front entrance to and near the front doors of the plant. The hand bills Brown was
distributing were for the in-plant organizing committee. Brown was approached by the
security guard and told to leave the premises and go out to the road. Brown protested
saying she had a right to be there. The security guard told her he had orders from
management not to allow her to do so. Brown told the security guard she was an
employee and was not going anywhere. It was only after Brown told the security guard
she was an employee that the security guard demanded and was provided Brown’s name
and Company badge number. I find the Company through its security guard and with
direct orders form management interfered with lawful union hand billing on July 1 and
August 26. I also find, as alleged, the Company engaged in unlawful surveillance of
union activity by the guard recording the name and badge number of Brown. The
Company would rely on St. Clair Memorial Hospital, 309 NLRB 738, 739 (1992) for a
finding of no unlawful surveillance by the security guard’s recording Brown’s name and
badge number. In finding no violations in St. Clair Memorial Hospital, supra, the judge
considered “the large number of hospital employees” not in hospital uniform and the fact
that non employees were also hand billing at the hospital during the time in question
although they were not on hospital property. Here it is one person hand billing who has
identified herself as an employee. The only valid purpose to record her name and badge
number was to interfere with her protected rights.

D. Interrogation

It is alleged at paragraph 8(e) of the complaint that HR Manager Tolbert, during
May, interrogated employees about the identify of union supporters. 25
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Brown approached HR Manager Tolbert in May in the canteen where she was
handing out union literature. Brown testified she told Tolbert:

I had some concerns because I had two group leaders that approached me.
They said that they are for the Union, but management, [Director of
Manufacturing] Mark Hernandez, told them if they signed any cards or
wear any buttons they will be demoted. And I talked with Mike [Tolbert]
to see, you know, can - - as group leaders, can they do that, and he said
they have their free reign with whether they want to go for the Union or
not. And I asked him would he please send out a Memo saying that group
leaders, you know, got their free choice, and Mike Tolbert told me that
wasn’t his job [t]hat was Mark Hernandez [job].

Brown testified that when she asked HR Manager Tolbert to send an e-mail to all group
leaders informing them they had a free choice to support or refrain from supporting the
Union, Tolbert asked her who the two team leaders were that had talked to her. Brown
refused to give him their names.

HR Manager Tolbert’s office faces the direction of where some hand billing
occurred place at the Company. In May, Tolbert observed employee Ridings and a
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female passing out hand bills. Tolbert did not recognize the woman. He attempted to
speak with the woman but by the time he got outside she had left. The next day HR
Manager Tolbert asked Ridings who the woman was. Ridings told Tolbert she was not
an employee but someone who, he thought, was from Tennessee. Tolbert told Ridings,
“if you happen to see her the next time, tell her that if she wants to pass out hand bills,
she should go across the street. She’s welcome to do it, but I can’t let her do it on our
property by virtue of her being potentially injured.” Ridings said he would tell her if he
saw her again. Tolbert explained the Company had a rule prohibiting non-employees
from engaging in distribution of literature on Company property.

Interrogation is not, by itself, a per se violation of Section 8(a)(1) of the Act. The
test for determining the legality of employee interrogation regarding union sympathies is
whether under all the circumstances the interrogation reasonably tends to restrain or
interfere with employees in the exercise of their statutory rights. Mathews Readymix Inc.,
324 NLRB 1005, 1007 (1997). Under the totality of circumstances approach, such
factors as whether the interrogated employee is an open and active supporter of the union,
the background surrounding the interrogation, the nature and purpose of the information
sought, the identity of the questioner, and the place and/or method of the interrogation are
examined. Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees
Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985) See also: Bourne v. NLRB, 332
F.2d 47, 48 (2d Cir. 1964).

Applying the Board’s totality-of-the-circumstances test, did HR Manager Tolbert
unlawfully interrogate Brown? Certain factors would tend to support a finding of no
unlawful restrain or interference with employees rights. First, Brown sought out Tolbert
and initiated their conversation. Second, she was an open and active supporter of the
Union and was handing out union literature in the canteen when she approached HR
Manager Tolbert. On the other hand Brown was concerned because two non-supervisory
group/team leaders had told her that Director of Manufacturing Hernandez told them (the
two team leaders) that if they signed union cards or wore union buttons they would be
demoted. Although Tolbert, a relatively high level Company official, told Brown
group/team leaders had “free reign” regarding the Union he still wanted to know the
names of the two group (team) leaders that had said they were for the Union but had been
warned they would be denoted for supporting the Union. Brown refused to provide the
names. The coercive impact of Tolbert’s request for names of those wanting to support
the Union is clear. Employees would be demoted for supporting the Union. In light of
all the circumstances I am persuaded HR Manager Tolbert’s asking Brown who the team
leaders were that supported the Union would tend to coerce a reasonable employee and
thus violated Section 8(a)(1) of the Act. I reject the Company’s contention that HR
Manager Tolbert was simply trying to learn the group/team leaders’ names so he could
investigate the situation and ensure compliance with the neutrality agreement between the
Union and Company. Tolbert already knew which Company official, Director of
Manufacturing Hernandez, was involved. Tolbert could have commenced an
investigation, if he desired to conduct one, through Hernandez without trying to find out
from Brown who the two employee type group leaders were.

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HR Manager Tolbert’s interest in any involvement by employees with the Union
is also demonstrated by his questioning employee Ridings about the identity of a woman
hand billing with Ridings in May outside the plant in view of Tolbert’s office. Tolbert
who was unable to locate the woman and the next day asked Ridings who she was. I find
Tolbert’s asking who the woman was that had been helping Ridings hand bill to be
coercive notwithstanding Tolbert’s comments to Ridings that he was fearful the woman,
as possibly a non-employee, might be injured on Company property. Tolbert’s seemingly
ready explanation for all occasions where he makes inquiries or takes actions are
unpersuasive toward finding his conduct to be non coercive.

E. Suspension and Termination of Brown

It is alleged at paragraphs 9 and 10 of the complaint that the Company suspended
Brown on July 22 and terminated her on July 29, because she engaged in protected
concerted activities and because she supported the Union and to discourage employees
from engaging in such activities. The Company’s actions are alleged to violate Section
8(a)(3) and (1) of the Act
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1. Brown’s and Other Employees’ Testimony
Regarding the July 21 Incident20
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Brown worked at various jobs for the Company for approximately seven years
prior to her termination. Brown was a known vocal and visible supporter of the Union
not only in the most recent union campaign but in two prior campaigns. In the most
recent campaign Brown contacted the Union in April, and shortly thereafter Union
International Representative David Bortz, came to the Company and hand billed for the
Union with her. Brown gave out union literature inside and outside the plant and in the
canteen and bathrooms. Brown wore union buttons and pro-union “T” shirts each day at
work.

Most recently Brown was assigned to the labor pool from which she was referred
to various work assignments throughout the plant covering for absent employees or as
extra workers where needed. Brown was acknowledged as a pretty good worker capable
of performing any job on the assembly line.

Brown testified that in early to mid-July her supervisor, Production Supervisor
Bernhardt, told her he needed her to work fuel tank installations because he had two
employees “out on stress leave.” Brown told Production Supervisor Bernhardt, she had
not performed that job in a while and “did not know it.” Bernhardt told Brown he needed
her and “to do the best” she could. Brown also asked Bernhardt not to assign her to tank
installations where Team Leader Childers would direct her work “because of the unfair
treatment that [she] had . . . from Eddie [Childers] in the past.” Brown proceeded as
instructed to the fuel tank area for work but could not remember the various module
numbers for tank installations. Brown explained module numbers are assigned to such
items as button straps, nuts, bolts and watches needed to install the various fuel tanks.
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Brown had some trouble installing tanks so Bernhardt assisted her for a while but left
saying he needed her there and to “just do the job.”

On the morning of July 21, Brown worked Line II in the assembly area. Line II is
the area for assembling RV’s (recreational vehicles). A conveyor belt in the floor moves
each RV chassis down the line for assembly. There are eight or nine work stations on
assembly Line II. The conveyor belt continues to move within the approximately 20 feet
of work area in each work station. If for any reason there is a need to stop the assembly
line there are color coded switches in each work station. A switch with a yellow warning
light indicates there is a problem on the line and if not corrected would necessitate
shutting down the line. A switch with a red warning light will shut the assembly line
down. Anyone may, if necessary, push either switch at anytime. As the conveyor moves
along the assembly line each RV chassis is built, piece by piece, while moving through
each work station.

At the beginning of each work shift the assembly line team leaders5 meet with
their assigned teams at “huddle” meetings. Specific individual work assignments are
made at the “huddle” meetings.

Childers6 is team leader for Line II RV Assembly and held that position on
Thursday July 21. At his huddle meeting that morning he made specific job assignments
to his team members including Brown. According to Brown, Childers told her she would
be installing fuel tanks that day. Brown told Childers she did not know the job well
enough to do it by herself. She testified Childers told her she would have to do the job
anyway. Brown told Childers she would just go home to which Childers replied, “if
you’re going to go home, go home.” Brown stayed and proceeded to a computer to look
up module numbers for the first chassis on the line. According to Brown, Childers
diverted her to module wiring work for a while before she installed fuel tanks. Brown
testified the first chassis had already moved down the assembly line out of her area so she
hurried to obtain the necessary nuts, washers and plates to install the fuel tank on that
chassis. Brown did “subbing” work getting the chassis ready to receive the fuel tank.
The first chassis had by that time reached the next work area and was beginning to rise
off the dolly it was resting on. Brown asked a fellow worker, Michelle Wilson, to hit the
red warning light switch to stop the assembly line. Brown feared the chassis would come
off the dolly creating a safety problem. According to Brown, Childers came to the line
and told her to get the tank for installation. Brown said she and another employee
brought a fuel tank over to the line and after some difficulty she, Childers, and another
employee installed it on the first chassis. The red warning light switch was pulled and
the assembly line commenced moving again.

Brown testified she then proceeded to look for the parts needed to install the fuel
tank on the second chassis. Shortly thereafter Childers told Brown she had failed to

5 The parties stipulated for purposes of this trial that the team leaders are not supervisors within the
meaning of Section 2(11) of the Act.
6 The parties stipulated that Childers, as a team leader, was empowered by the Company to assign
work to the employees on his team.
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install an AC clamp on the first chassis. Brown walked to the end of the assembly line
and clamped the first chassis. Brown then resumed getting the second chassis ready for
its fuel tank when Childers told her she had failed to “button bend the side of the rail” on
the first chassis. Brown testified she had “missed about three or four button bends, so she
grabbed the button bends in . . . hand and . . .walked back to . . .the first chassis, and . . .
button bended and clipped them and . . .walked back.” Brown again started preparing the
second chassis to install the fuel tank but by that time the second chassis had reached a
point where it was rising off the dolly. Brown asked employee Wilson to hit the red
warning light and stop the assembly line.

Brown testified:

I told Eddie [Childers] . . .the chassis is coming off the
dolly and he said you know this job. You’re lazy. You
don’t want to work for me. He said get, go on up yonder.
Move out of the way. I’ll finish it, and I said, Eddie, you
ain’t going to be standing here harassing me7, disrespecting
me like that, talking to me any kind of way; and I said this
is a safety hazard, and he just told me to move. And I
stepped back and stood, and I immediately called a
supervisor.

Brown said Childers and employee Wilson installed the fuel tank on the second chassis
taking about 3 to 5 minutes to do so.

Brown testified that in response to her call for a supervisor Acting Supervisor Jeff
“Woody” Wright asked her what the problem was. Brown told Wright she and Team
Leader Childers “just got into a big argument” and started to tell Wright about it when
Wright walked away to speak with Team Leader Childers. Brown stated Production
Supervisor Bernhardt then came into the area and spoke with Childers and Wright.
Brown said that when she saw no one was really going to talk with her about the situation
she went back to installing fuel tanks on the assembly line.

Later that morning, in response to her request, Brown met with HR Manager
Tolbert. Brown told Tolbert she and Childers “just got into a really bad, you know,
blowout” and she had witnesses that could verify how Childers had talked to her.
According to Brown, Tolbert told her he had a meeting that afternoon (July 21) but could
meet with her on the following Monday afternoon.

Brown continued to work on the assembly line for the remainder of the day
without incident. Brown said she never refused to perform any work and never at
anytime sat down on a fuel tank.

7 Another employee testified about harassment. Employee Georgia West testified two team leaders
had harassed her, one of which was Childers. West said she could not take the harassment that she was
having migraine headaches and had to see a counselor. West was on medical stress leave from April 28
until June.
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Seven year employee Alethia Gatewood was assigned to the work pool and
worked Line II RV Assembly on July 21. Also working in the area that morning were
employees Brown, Wilson, Kathryn Whitworth and Jay Corry. Gatewood said she
observed Brown and others having trouble getting the fuel tanks installed on both the first
and second chassis. According to Gatewood, Whitworth was dropping (installing) fuel
tanks with Wilson. Wilson was also building modules and Brown was doing harness
work on modules. Gatewood stated Whitworth got behind and Brown helped her with
the fuel tank installations. Gatewood said Childers came down and helped install the fuel
tank on the first chassis. Gatewood stated Brown and Wilson had trouble getting the fuel
tank installed on the second chassis. Gatewood said one person could install a fuel tank
but it was easier when two did it. Brown called for Childers to help with the tank on the
second chassis. Gatewood stated Childers came down and “was complaining about
(Brown) not getting the tank in.” According to Gatewood, Childers said:

she [Brown] wasn’t trying and if she couldn’t do any better than what she
was doing, then he needed her to step out of the way . . . to step back and
let somebody else do it or she just needed to get out of the way.

Although Childers had problems installing the tank he and Wilson were able to do so on
the second chassis. Gatewood said Brown stepped back and watched the installation on
the second chassis. Gatewood testified Brown returned to work after the fuel tank on the
second chassis was installed.

Employee Wilson testified she did module work the morning of July 21. She said
she was later asked to help Brown install fuel tanks. Brown and she had trouble getting
the fuel tank installed on the second chassis. Wilson testified Brown told Childers they
needed help “[a]nd when Eddie [Childers] came down there, he told her [Brown] to get
out of the way because she didn’t want to be down here anyway. And so she [Brown]
moved back and crossed her hands, and that’s when me [Wilson] and him [Childers]
finished putting it on, put the light out, and it went on down the line.” Wilson testified
Brown told Childers “you can’t talk to me like that.” Wilson never saw Brown sitting on
a fuel tank only just standing there when she was told to get out of the way.

On July 22, Brown was notified by Team Leader Childers she was to meet with
Production Supervisor Bernhardt and Manager Ron Manes in the office for an
investigation of the events the day before. Production Supervisor Bernhardt told Brown
the Company wanted her side of the events. Brown asked for a witness and Manes said
no. Brown asked why because in the past the Company had allowed witnesses. Manes
asked if she was refusing to participate in the investigation. Brown said no but for her
protection she would like to have a witness and asked if she could have someone from the
Union. According to Brown, Manes, “slapped his hand on the table” and said “don’t you
dare bring the Union . . . in this . . . [t]he Union had nothing to do with this.” Brown told
Manes he misunderstood that she was not asking for an outsider but rather one of her
coworkers. Manes suggested a certain person and Brown declined. Brown asked for HR
Manager Tolbert as her witness. Manes refused but offered the President’s secretary.
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Brown again asked for Tolbert. Manes left the office came back and said Tolbert did not
want to be a witness. Brown began to participate in the investigation at that point without
a witness.

Brown testified she told the investigators Childers had assigned her to install fuel
tanks that morning. She stated she thereafter performed her assigned tasks but at that
time the first chassis was about to pull off the dolly it rested on so the assembly line was
stopped by a coworker at her request. She said the same thing happened on the second
chassis because she could not get caught up and again the assembly line was stopped by a
coworker. Brown told the investigators the only thing she was trying to do in stopping
the line was to prevent an accident. Brown told Manes and Bernhardt she had witnesses
to verify her story. Brown told them Team Leader Childers had said she was lazy and
didn’t want to work for him and for her to get out of the way and he would install the fuel
tank himself. Manes wanted to know how long it took to install a fuel tank.

The meeting ended with Brown being told she was placed on suspension until
further notice. Brown was asked to turn in her employee badge which she did and
Brown’s tool box was brought to the office and, with her permission, searched for any
Company property. Brown was escorted to the door and she left the plant at that time.

Brown next heard from the Company on July 29, when she received a telephone
call from HR Manager Tolbert. Tolbert told her the Company had come to a unanimous
decision to terminate her for the events on July 21. Tolbert told Brown she could appeal
her termination to the Company’s Board of Appeals and he would help her file the
request. Brown did not seek to have her termination considered by the Company’s Board
of Appeals.

On August 1, Brown applied with the South Carolina Employment Security
Commission for unemployment compensation and a State claims examiner determined on
August 17 that she was disqualified for compensation holding she had been discharged
for cause. Brown appealed that finding and appeared at a hearing on her appeal on
September 19. The Company did not appear at the hearing. The Appeal Tribunal noted
the burden to establish that a claimant was discharged for cause rested solely with the
employer. The Appeal Tribunal concluded the Company had not met its burden because
it did not appear and present first hand personal knowledge concerning its reason(s) for
Brown’s discharge. The Appeal Tribunal noted Brown adamantly denied any wrong
doing rather contending she was discharged because of her affiliation with and
membership in the Union. The Appeal Tribunal held Brown was eligible to receive
benefits.

Eight year Employee Kristi Patterson worked as an assembler on Line II at
pertinent times during the summer of 2005. During the first week of July Team Leader
Childers assigned Patterson to perform a job assignment that she was only “vaguely”, if
at all, familiar with. Patterson asked Childers for help getting started because of her
unfamiliarity with the job. According to Patterson, Childers refused to provide her any
assistance even just until she could acquaint herself with the assignment and get caught
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up. Childers explained to Patterson he did not have the authority to change job
assignments around and thus did not provide her any assistance or relief.

Patterson testified that the next day Team Leader Childers “put me on another job
and told me that he needed me to do the work I was doing the day before . . . and told me
that he needed me to do that [additional] job.” Patterson testified, “I told him I wasn’t
going to do it.” Patterson said Childers had told her the day before he did not have the
authority to change job assignments around and could not give her any help so she did
not feel he had the authority to change her assignment around the next day when it was
just to suit himself. Patterson testified:

When I refused to do it, the chassis kept rolling up the line and it was not
being done; and me and Eddie [Childers] had words. He tried to make me
do it, and I told him I was not going to do it, and I told him he needed to
call Britt [Bernhardt] over there. I would discuss it with Britt [Bernhardt].

Patterson testified Childers called Production Supervisor Bernhardt to the line and
spoke alone with him. Patterson then talked with Bernhardt; first on the assembly line,
and “he saw how upset I was” so they spoke outside the plant for “probably a half hour.”
Patterson testified Bernhardt told her she did not have to do the additional job assignment
that Team Leader Childers ordered her to because Childers was wrong. Patterson was
never disciplined over the incident in any way.

2. The Company’s Version of The Events of July 21
and The Company’s Actions 25
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Line II Team Leader Childers testified his job duties included making job splits or
assignments for his team members each day. Childers makes his assignment selections
based on his knowledge of the performance levels and skills of his team members.
Childers has known Brown for sometime and stated she was “a pretty good worker”
“capable of running any job on Line II.”

Childers conducted a “huddle” meeting with his employees on the morning of
July 21. He asked Brown to assist in fuel tanks. Childers said he was at that time
training an employee for that position but needed Brown to “install and set up fuel tanks
on the lines” that day. Childers chose Brown because she was experienced in fuel tank
installation and had previously installed tanks under his direction. Team Leader Childers
testified that when he told Brown she was assigned to fuel tanks on July 21, she told him
“if she was going to be putting [in] tanks, that she was going to go home.” Childers
explained to Brown he needed her to set up each chassis and install the fuel tank, built by
employee Whitworth, on each chassis. Childers told Brown fuel tank installation was all
he needed her to do on July 21. Childers described such an assignment as half a job.

Childers testified he continually inspected the work being performed on the
assembly line and added “I look over all my team members’ work to make sure
everything is happening the way it’s suppost to happen.” While making checks Childers
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noticed Brown was performing harness wiring work, a task he had not asked her to
perform, and the fuel tank for the first chassis was not being installed. Childers went to
the tank installation area on the line and helped install the tank on the first chassis.
Childers told Brown he was grateful for her team work but all he needed her to do that
day was set up and install fuel tanks that he had an employee responsible for harness
wiring. Brown responded no problem.

Childers returned to his inspection and oversight duties and again notice the line
was in trouble in that the fuel tank for the second chassis was not being installed.
Childers testified he notice Brown was not “prepping” the second chassis nor getting it
ready to install the fuel tank. Childers approached Brown but she accused him of
harassing her. The assembly line was at the point where the crane to install the fuel tank
could not proceed any further resulting in a shut down. Childers said that when the line
shut down Brown walked over and sat down on the fuel tank and crossed her arms.
Childers testified Brown told him if he wanted the tank installed on the second chassis he
could do it himself. Childers used two hoists and worked with other employees and
installed the fuel tank. Childers testified he asked Brown twice to help install the fuel
tank on the second chassis but she just stood up with her arms crossed and “never made
any attempt to help me put the tank in.” Childers explained that the full six minutes
while he and employees Wilson and Whitworth installed the fuel tank on the second
chassis Brown just stood with her arms folded and did not perform any work. Childers
denied asking or telling Brown to step aside. Childers said he was very respectful to
Brown. Childers testified Brown asked to speak with a supervisor but refused to talk
with Acting Supervisor Jeff “Woody” Wright. Brown later spoke with Production
Manager Bernhardt.

Brown worked the remainder of the shift without incident.

Childers prepared an e-mail memorandum on July 22, of the July 21 morning
events. The e-mail follows:

From: Edward Childers
Sent: Friday, July 22, 2005 1:34 PM
To: Britt Bernhardt; Jeff Wright; Ron Manes; Edward Childers
Subject: RAQUAL BROWN

Before we got started on 7-21-05 Raqual Brown asked me if she was going to run
fuel tanks.I told her yes she would be in tanks.That’s when she told me that she
was going to go home.So we started the line up and was trying to work out job
splits.When the First Chassis came by I realized that the fuel tank was not in.So I
went to the station to help get the tank in.After that I went back over the job splits
to make sure everyone understood what their responsibilities were.I then walked
back to the end of the area and watched while the second chassis come by.It was
not subbed up and there was not a tank in it also.So I asked Raqual Brown.Why
wasn’t the tank in the chassis.She then said that I need to quit harassing her.All I
said was we need to get the tank in.She hit the light,sat down on a tank.Then got
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up and crossed her arms.I asked again are your going to help or what.She told me
that I could put the tank in,and remained standing there.
Witness:
Michelle W.
Kathren W.

Production Supervisor Bernhardt spoke with Brown approximately two or three
weeks before the events of July 21, about being assigned to fuel tank installations.
Bernhardt testified Brown told him she had been on fuel tanks for seven or eight months
and did not feel she should have to do it. Bernhardt testified:

I explained to her that we were in the process of training other individuals
to do fuel tanks, and I needed her to run fuel tanks until we could get some
cross training accomplished; that’s pretty much where we left the
conversation.

Bernhardt learned on July 21, from acting Supervisor Wright there had been an
incident or problem with Brown and Team Leader Childers over the installation of fuel
tanks. Bernhardt spoke with Team Leader Childers for his account of what had taken
place.

Bernhardt began an investigation of the July 21 events on Friday, July 22. Over
the next days Bernhardt interviewed fourteen potential witnesses two of which were
Childers and Brown. Bernhardt testified he started his investigation by interviewing
Brown on either July 22 or 25. Bernhardt took notes of his interview with Brown, which
notes as more fully described were received in evidence. Bernhardt explained the notes
of his interview with Brown were not his original notes but were rewritten utilizing the
original notes which no longer exist. From Bernhardt’s rewritten account of his interview
with Brown it appears Brown said there were manpower issues at the beginning of the
shift on July 21. Brown told Bernhardt Team Leader Childers had assigned her to fuel
tank installation and she had told Childers she would just go home but did not.
According to Bernhardt’s notes Brown told him employee Whitworth had been assigned
to install fuel tanks but was late for work on July 21. Brown explained she did not have
time to get the fuel tank installed on the chassis and hit the light which stopped the
assembly line. Brown told Bernhardt that Team Leader Childers became upset because
she stopped the line and told her she was lazy and did not want to be in the area.
Bernhardt’s notes reflect Brown told him Childers was “hostile” “raised his voice” and
was “very disrespectful.” Brown felt it was a safety concern when she stopped the line.
Bernhardt’s notes reflect Brown said she had problems with Childers and said he would
not cross train someone to work fuel tank installations.

Bernhardt testified that when he interviewed Brown, Manager Manes, who was
present, did not say, in response to Brown’s request to have a witness, “don’t you dare
bring [in] someone from outside the plant” or even words to that effect. Bernhardt
testified Manager Manes did not make any disparaging or derogatory comments about the
Union or Brown’s desire to have union representation. Manes did not testify.
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Production Supervisor Bernhardt testified Brown and Childers both suggested
witnesses to be interviewed for his investigation. The additional twelve witnesses
interviewed were employees Kathryn Whitworth, Chris Lipscomb, Michele Wilson,
Alethia Gatewood, Jay Corry, Barry Ellis, Brian Toler, Brian Byers, Kristi Patterson,
Robert Wilk, Carl Denton and Acting Supervisor Jeff Wright.

Bernhardt testified Acting Supervisor Wright provided Manager Manes and he an
e-mail on Tuesday, July 26, regarding his knowledge of the Childers and Brown
situation. Wright’s e-mail follows:

From: Jeff Wright
Sent: Tuesday, July 26, 2005 3:26 PM
To: Britt Bernhardt; Ron Manes
Subject:Employee Situation

I was assisting Chris Lipscombe in catching up bell crank assemblies that
was line short when I overheard Raquel Brown say that you’re not going
to harass me Eddie and Eddie replied that I’m not harassing you but that
we couldn’t stop the line, at this point I couldn’t hear what else was said
because I was across the chassis from them and they had stepped down the
line a few feet further, the next thing that I noticed was that Raquel had
stepped back from Eddie and crossed her arms and Eddie proceeded to
install the fuel tank to keep the line running. The next time I looked up
which was a couple of minutes later and Raquel had walked down to the
next chassis.

Production Supervisor Bernhardt testified he prepared a list of eight questions for
those he interviewed because he “just didn’t want to miss . . . any key points.” Bernhardt
prepared a separate sheet with the questions for each employee he interviewed.
Bernhardt said he did not allow those he interviewed to see, sign or otherwise adopt what
he wrote on the forms when those interviewed were answering the questions. Included in
the questions were whether Brown “hit the light” that stopped the line, sat “down on the
tank” and “cross[ed] her arms.” Also included were questions regarding whether Brown
was asked to do something “unreasonable” “unsafe” “outside” her normal job duties or if
Team Leader Childers was “disrespectful.” The notes Bernhardt made indicates
Whitworth said she (Whitworth) was learning to install tanks but was not that familiar
with the work and had problems so Team Leader Childers helped her install the fuel
tanks. Bernhardt’s notes reflect Whitworth saw Brown “standing with her arms crossed”
and that she heard Brown tell Childers he could install the tank. Bernhardt’s notes
regarding his interview of Lipscomb reflects Lipscomb never saw Brown stop the line, sit
on a tank and/or cross her arms. The notes reflect Lipscomb said Team Leader Childers
asked Brown “if she was going to install the tank” and that Brown said, “no, [she]
want[ed] to talk to Britt [Bernhardt].” Bernhardt’s interview notes of Wilson reflects
Childers said “look out, you don’t want to work in this section anyway,” and that Brown
stood off to the side and Childers installed the tank. Bernhardt’s interview notes indicate
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employees, Gatewood, Ellis, Toler, Beyers, Patterson, Wilk and Denton did not, for
whatever reason, hear Brown tell Childers he could put the fuel tank in. Bernhardt’s
notes of the interviews reflect employee Gatewood did not see Brown standing or sitting
with her arms crossed.

In a memorandum to Manager Manes dated July 28, Production Supervisor
Bernhardt recommended Brown be discharged. Bernhardt’s memorandum states in part:

I interviewed fourteen (14) potential witnesses to the incident, including
Eddie Childers, Racquel Brown, and Jeff Wright. Based on my
investigation, evidence supports that Racquel did refuse to complete the
job assignment and definitely counter-productive. No one indicated Eddie
asked Racquel to do anything unreasonable or unsafe, she simply refused
to install the fuel tank. For the reasons mentioned, it is my
recommendation Racquel should be terminated immediately for
insubordination and disruptive behavior.

Although Manager Manes did not testify his memorandum of July 28, to HR
Manager Tolbert, Director of Manufacturing Hernandez and President/General Manager
Bigland recommending Brown be discharged was received in evidence.

Manes memorandum reflects he concluded: that Brown refused to perform her
assigned duties; that she had sufficient time to perform the duties had she elected to do
so, that she raised no safety concerns; that she needlessly disturbed the assembly line, and
was insubordinate.

Director of Manufacturing Hernandez testified he knew Brown as one of the
employees on assembly Line II. Hernandez heard from management personnel as well as
assembly line employees that Brown supported the Union. Hernandez heard of the
incident with Team Leader Childers and Brown while it was being investigated. After
the investigation Production Supervisor Bernhardt and Manager Manes forwarded
recommendations to him urging Brown be terminated “based on insubordination for not
following work instructions.” Hernandez made the decision to terminate Brown for
insubordination.

Hernandez met with HR Manager Tolbert to see whether there had been any
similar incidents documented in the past. Hernandez testified HR Manager Tolbert
indicated there had been one such incident where a David Holland had refused to perform
a work assignment and was terminated. The Holland termination took place in 2001 and
Hernandez acknowledged he had no involvement in Holland’s discharge.

It appears from Company records that on December 14, 2001, David Holland was
instructed by his Team Leader to move from one work station to another for work.
Holland told his Team Leader three separate times that he was not going to the new
assignment.

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The records reflect that Holland acknowledged when confronted with his refusal
that he had refused to go to his assignment and was placed “immediately on a final
warning.” After some discussion among management regarding Holland’s actions he
was placed on suspension. Holland requested and was granted a meeting with
management where he again acknowledged he simply refused to go to the assignment he
had been directed to and stated “that emotions had gotten the best of him during the
encounter.” Holland was terminated on December 17, 2001. Holland appealed his
termination to the Company Board of Appeals which upheld his termination.

3. Analytical Frame Work and Application 10
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The analytical frame work for determining employer motivation in a case alleging
a discriminatory discharge, as is the case herein, was established by the Board in Wright
Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455
U.S. 989 (1982). Under Wright Line, the Government must first prove, by a
preponderance of the evidence, that animus against protected conduct was a motivating
factor in the adverse employment action. If the Government succeeds in establishing this
initial burden, the burden of persuasion then shifts to the employer to demonstrate it
would have taken the same action even in the absence of the protected conduct.
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). An employer simply
presenting a legitimate reason for its actions is not enough. T. J. Trucking Co., 316
NLRB 771 (1995). To sustain the initial burden, the Government must demonstrate by
preponderant evidence: 1) the employee’s pro-union activity, 2) employer knowledge of
the pro-union activity, 3) that the employee’s pro-union activity was a substantial or
motivating reason for the employer’s action, and, 4) there was a causal connection
between the employer’s animus and its discharge decision. When an employer’s stated
motives for its actions are found to be false, the Board may infer from all of the
circumstances that the employer’s true motive is an unlawful one that the employer seeks
to conceal. Fluor Daniel, Inc., 304 NLRB 970 (1991) enfd. 976 F.2d 744 (11th Cir. 1992)
(citing Shattuch Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The
Government may meet its Wright Line burden with evidence short of direct evidence of
motivation, that is, inferential evidence arising from a variety of circumstances such as
union animus, timing or pretext.

Before applying the Wright Line, supra, test it is appropriate to note that I find
Brown to be a truthful, albeit determined witness, eager to have her side of the events
heard and believed. I credit her testimony noting some portions were uncontradicted,
while other portions were corroborated by others. Brown’s facial expressions and
gesticulations made her testimony all the more believable.

First it is clear Brown engaged in protected conduct on behalf of the Union.
Brown not only openly supported the Union in the most recent campaign but had done so
in previous campaigns. Brown also was the employee who contacted the Union in the
2005 campaign and shortly thereafter she and an International Union official hand billed
at the Company. Brown also hand billed for the Union at the entrances to the plant.
Brown wore pro union buttons and pro Union T-shirts at work during the 2005 campaign.
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Brown even hand billed inside the plant in the canteen in the presence of supervisors and
hand billed in the restrooms.

Company officials acknowledge Brown was a known supporter of the Union.

The Company’s animus toward the Union activities of its employees and
specifically toward the union activities of Brown has been established. The Company,
Production Supervisor Bernhardt in particular, promulgated and enforced against Brown
and others a rule against talking about the Union at work, while allowing other non work-
related subjects to be openly discussed. The Company, by HR Manager Tolbert,
disparately enforced the Company’s no solicitation/no distribution rule against Brown
and others supporting the Union. The Company interfered with Brown’s lawful hand
billing at the Company for the in-plant organizing committee and unlawfully surveiled
her union activity. Additionally the Company, by HR Manager Tolbert, unlawfully
interrogated Brown concerning the identity of certain employees supporting the Union.
Manager Manes forcefully, by slapping his hand on the table, told Brown when he
interviewed her regarding the events of July 21, not to dare bring the Union into the
situation that it had nothing to do with the Union. The Government clearly demonstrated
animus against employees’ union activities and against Brown’s union activities in
particular. I am persuaded Brown was discharged for and in the overall context of her
visible and vocal support for the Union.

The Company has failed to carry its burden (a burden of persuasion) of
establishing its affirmative defense in demonstrating that it would have discharged Brown
in the absence of any union or protected activity on her part. The reason, insubordination
by refusing a work order, advanced by the Company for the discharge of Brown was
factually inaccurate. Brown did not refuse any work assignment. The evidence shows
Brown experienced difficulty timely installing fuel tanks on the first two chassis’ on July
21. Team Leader Childers approached Brown in a frustrated (real or otherwise) manner
and instructed Brown to “move out of the way” which she did while he, with help,
installed the fuel tank on the second chassis. Employees Gatewood and Wilson
corroborated Brown’s credited testimony that she was instructed to move out of the way
when Childers helped install the fuel tank on the second chassis. Gatewood, for example,
recalled Childers telling Brown “. . . he needed her to step out of the way,” “to step back”
“or she just needed to get out of the way.” Wilson recalled Childers telling Brown “to get
out of the way because she didn’t want to be down here anyway.” Once the incident
involving the second chassis was over with Brown returned to installing tanks and did so
for the remainder of the day without incident. Brown did not refuse to do any assigned
work but rather followed Team Leader Childers orders to move out of the way. The
credible facts establish Brown did not sit down on a fuel tank and/or to refuse to perform
her job nor did she tell Team Leader Childers if he wanted the tank on the second chassis
installed to do it himself. The evidence does not establish that Brown needlessly
disturbed the assembly line. Brown credibly testified the only reason the red warning
light that stopped the assembly line was activated was out of a safety concern and to
prevent a possible accident.

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Even if the Company had established that Brown was insubordinate by refusing to
install a fuel tank on the second chassis on the morning of July 21, I would nonetheless
conclude the Company seized upon that to discharge her. During the first week in July,
just days before the Brown and Childers July 21 incident, employee Patterson outright
refused to perform a specific assignment made by Team Leader Childers. Patterson
demanded, as Brown had done, to speak with Production Supervisor Bernhardt.
Bernhardt, unlike with Brown, met immediately with Patterson inside the plant and
because she was upset met with her for approximately 30 minutes outside the plant, and
then told Patterson she did not have to perform the additional job assignment Team
Leader Childers had specifically directed that she perform. Patterson was never
disciplined in any manner for refusing to perform the additional assignment she was
directed to perform. The Company’s 2001 discharge of employee David Holland for
refusing to perform a work assignment does not compel a different result than I reach
herein. First, the managers making the decision to terminate Brown were not involved in
the 2001 discharge. Second, the Patterson situation appears to more accurately reflect
current Company policy specifically when the employee involved (Patterson) is not the
employee (Brown) that sought out the Union for the current union campaign and was its
most vocal and visible supporter in the plant.

I find that when the Company suspended Brown on July 22 and then terminated
her on July 29, the Company violated Sections 8(a)(3) and (1) of the Act. I shall order
the Company to offer Raquel Brown full instatement and to make her whole with interest.

Conclusions of Law

1. The Company, Freight Liner Custom Chassis Corporation is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAQ is a labor organization within the meaning of
Section 2(5) of the Act.

3. The Company violated Section 8(a)(1) of the Act by promulgating and
enforcing an unlawful no-talking rule against pro-Union employees; disparately
enforcing its no soliciting /no distributing rule against pro-Union employees, interfering
with lawful union hand billing outside its facility; surveillance of its employees’ union
activity by recording the identity of lawful union hand billing, and interrogating its
employees concerning their union activities.

4. The Company violated Section 8(a)(1) and (3) of the Act by suspending
employee Raquel Brown on July 22, 2005, and by discharging her on July 29, 2005.

5. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act.
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The Remedy

Having found the Company has engaged in certain unfair labor practices, I find it
must be ordered to cease and desist and take certain affirmative action designed to
effectuate the policies of the Act. Specifically, the Company having discriminatorily
suspended and terminated its employee Raquel Brown, it must offer her immediate
reinstatement to her former job or if her former job no longer exists to a substantially
equivalent position without prejudice to her seniority or other rights and privileges
previously enjoyed and make her whole for any loss of wages and benefits. Back pay
shall be computed 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). I
recommend the Company also be ordered to post, within 14 days after service by Region
11, at its Gaffney, South Carolina, facility copies of an appropriate “Notice to
Employees” copies of which are attached hereto as “Appendix” for a period of 60
consecutive days in order that employees may be apprised of their rights under the Act
and the Company’s obligation to remedy its unfair labor practices.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended:8

ORDER

The Company, Freightliner Custom Chassis Corporation., its officers, agents
successors, and assigns shall:

1. Cease and desist from:

(a) Suspending and/or terminating employees because they engage in
concerted protected activities and/or activities on behalf of the Union.

(b) Promulgating and enforcing an unlawful no-talking rule against
pro-Union employees, disparately enforcing its no soliciting/no distributing rule against
pro-Union employees, interfering with lawful union hand billing outside its facility,
surveillance of its employees’ union activity by recording the identity of lawful union
hand billing and interrogating its employees concerning their union activities.

(c) In any like or related manner, interfering with, restraining or
coercing employees in the exercise of rights guaranteed them by the Act.

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

8 If no exceptions are filed as provided by §102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in §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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(a) Within 14 days from the Board’s Order, offer Raquel Brown
reinstatement to her former job or if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights and privileges previously
enjoyed and make Raquel Brown whole for any loss of earning and other benefits
suffered as a result of the discrimination against her, in the manner set forth in the
Remedy section of this decision.

(b) Within 14 days from the Board’s Order, remove from its files any
reference to the unlawful suspension and termination issued to Raquel Brown, and within
3 days thereafter notify Raquel Brown in writing that this has been done and that her
suspension and termination will not be used against her in any way.

(c) Within 14 days after service by the Region, post at its facility in
Gaffney, South Carolina copies of the attached notices, marked “Appendix9.” Copies of
the notice, on forms provided by the Regional Director for Region 11, after being signed
by the Company's authorized representative, shall be posted by the Company
immediately upon receipt and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. Reasonable steps
shall be taken 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 Company has
gone out of business or closed the facility involved in these proceedings, the Company
shall duplicate and mail, at its own expense, a copy of the “Notice to Employees” to all
employees employed by the Company at any time since April, 2005.

Dated at Washington, DC, April 11, 2006.

________________________________
William N. Cates
Associate Chief Judge

9 If this Order is enforced by a Judgment of the 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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JD(ATL)—10—06

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APPENDIX

NOTICE TO EMPLOYEES

Posted by the 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 suspend and/or terminate employees because they engage in protected
concerted activities and/or activities in support of International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or any
other labor organization.

WE WILL NOT interrogate our employees concerning their union activities.

WE WILL NOT engage in surveillance of our employees’ union activities.

WE WILL NOT promulgate and/or enforce an unlawful no-talking rule against pro-
Union employees or disparately enforce our no solicitation/no distribution rule against
pro-Union employees, nor interfere with lawful union hand billing outside our facility
entrance.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce you in
the in the exercise of your Section 7 rights.

WE WILL, offer Raquel Brown full reinstatement to her former job, or if that job no
longer exists, to a substantially equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.

WE WILL make Raquel Brown whole for any loss of earnings and other benefits
resulting from her suspension and termination, less any net interim earnings, plus interest.

WE WILL, remove from our files any reference to Raquel Brown’s unlawful suspension
and termination, and WE WILL within 3 days thereafter, notify her in writing that this
has been done and that the suspension and termination will not be used against her in any
way.
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JD(ATL)—10—06

FREIGHTLINER CUSTOM CHASSIS
CORPORATION
(Employer)
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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 for the Board’s website:
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www.nlrb.gov.
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4035 University Parkway, Republic Square, Suite 200, Winston-Salem, NC 27106-3325
(336) 631-5201, Hours: 8 a.m. to 4:30 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 ALTERD, 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, (336) 631-5230
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