General Motors LLC

National Labor Relations Board - Administrative Judge Opinions

Sep 18, 2018

14-CA-197985 (N.L.R.B. Sep. 18, 2018)

JD–59–18
Kansas City, KS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GENERAL MOTORS LLC
and Cases 14–CA–197985
14–CA–208242
CHARLES ROBINSON, an Individual
Lauren Fletcher, Esq. and William F. LeMaster, Esq.,
for the General Counsel.
Keith E. White, Esq. (Barnes & Thornburg, LLP),
for the Respondent.
DECISION
STATEMENT OF THE CASE
DONNA N. DAWSON, Administrative Law Judge. This case was tried in Overland
Park, Kansas, on November 14, 2017. The Charging Party, Charles Robinson, filed the
charges in this case on May 3, 2017 (14–CA–197985) and October 19, 2017 (14–CA–
208242). The General Counsel issued the complaint On July 26, 2017, and the consolidated
complaint on October 31, 2017.1 The complaint alleges that management violated the Act by
taking three disciplinary actions against Robinson between April and October, as he engaged
in protected activity on behalf of the Union and its members. Respondent denies violating the
Act, and argues that Respondent either lost or never enjoyed the protection of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent General Motors LLC, a limited liability company, engages in the
manufacture and nonretail sale of automobiles at its Fairfax assembly facility in Kansas City,

1 All dates are 2017 unless otherwise indicated, and include all times relevant to this case. The parties
stipulated at trial that “material times” in the consolidated complaint refer to the time period 6 months prior to
the time of the initial charge (in other words, the 6 months prior to May 3, 2017) (Tr. 16).
JD–59–18
2
Kansas (facility/Fairfax facility). In conducting its operations during the 12-month period
ending on March 31, 2017, Respondent sold and shipped from its facility goods valued in
excess of $50,000 directly to points outside the State of Kansas, and also purchased and
received at its facility goods valued in excess of $50,000 directly from points outside the State
of Kansas. Respondent admits, and I find, that it is an employer engaged in commerce within 5
the meaning of Section 2(2), (6), and (7) of the Act.
The Union, Automobile, Aerospace and Agricultural Implement Workers of America
(UAW), Local 31 (Union/Local 31) has been, for all times relevant to this case, a labor
organization within the meaning of Section 2(5) of the Act. 10
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
15
The Charging Party, Charles (Chuckee) Robinson (Robinson)2, has worked for
Respondent at its Fairfax automotive assembly for over 20 years. He began his employment
as a production worker, and subsequently completed the apprenticeship program to become an
electrician. Since 2010, Robinson has been a Union committeeperson, first as an alternate,
and since 2012, as a full-time skilled trades committeeperson. As such, he works and 20
maintains an office in the Fairfax facility. His represents the bargaining unit members on the
first and second shifts with contract concerns, discipline, and in bargaining over terms and
conditions of their employment with management. He also serves as a delegate for the
Union’s international constitution.
25
In his capacity as committeeperson, Robinson and other committeepersons regularly
meet with members of management (including plant department heads) to discuss bargaining
unit issues involving potential changes to the terms and conditions of members’ work. For
example, they convene weekly “paragraph 183 meetings,” part of a contracting out
notification process, during which they meet to discuss Respondent’s subcontracting out of 30
bargaining unit work. They also convene weekly manpower meetings to discuss job
openings, moving workers from one shift to another to cover vacancies in the plant and other
shift changes. These weekly meetings take place in closed door conference rooms on the
facility’s mezzanine level, which are separate from the plant work floor and nonmanagement
production employees. (Tr. 40, 60, 145, 156.) Robinson also regularly interacts with 35
supervisors and managers individually on and off the work floor to address bargaining unit
issues.
Management officials involved in this case include labor relations supervisor, Ca-
Sandra Tutt and her labor relations manager, Randy Gallinger. Tutt testified about her 40
involvement in a weekly paragraph 183 subcontracting meeting, as well as her role in
investigating and conducting disciplinary investigatory interviews, also known as paragraph
76(a) interviews, in connection with Robinson. Gallinger was not personally involved with
any of the incidents, but testified about the one paragraph 76(a) investigatory meeting he
conducted with Robinson in October. Other management officials who testified included 45

2 At work, the Charging Party is also referred to as “Chuckee.” (Tr. 22.)
JD–59–18
3
Nicholas Nikolaenko (maintenance shift lead/body shop) and Anthony Stevens (plant
manufacturing engineer director), who engaged in altercations with Robinson and initiated
disciplinary charges against him. In addition, several other management officials testified as
witnesses to the incidents at issue.
5
Zone committeeperson, Billy Gay, represented Robinson in connection with his
disciplinary proceedings, but did not testify. Two other union committeemen, Benjamin
Miller and James Walton, testified on Robinson’s behalf as witnesses to two of the
altercations between Robinson and management officials.
10
Central to this case are several verbal altercations between Robinson, in his capacity
as a union representative, and management officials over contentious issues affecting unit
members. There is no dispute that the relationship between Robinson and management was
somewhat strained. Robinson aggressively questioned and challenged management officials’
decisions affecting his constituents, and believed that management disciplined him in 15
retaliation for his zealous representation. Management officials perceived Robinson’s
behavior in dealing with them on the occasions in question as offensive, intimidating,
disruptive, outside the parameters of union representational protected activity, and at times, in
violation of the Company’s standards of conduct.
20
B. April 11, 2017 Incident
On April 11, Robinson and Nikolaenko, maintenance shift lead, engaged in a verbal
altercation on the plant floor. Prior to arriving to work that morning, Robinson received a
telephone call from millwright team leader, Bob Burton. Burton complained that Nikolaenko25
was not abiding by an agreement between the Union and management to cover team leaders
(also bargaining unit employees), when they were sent for cross-training. 3 Cross-training is
contractually mandated by and memorialized in the national collective-bargaining agreement
between Respondent and the UAW, but overtime unit personnel coverage for team leaders
while they cross-train is neither mandated nor mentioned in the national agreement.4 (Tr. 95, 30
171–172; Jt. Exh. 1 at 588–590.) The local agreement between Respondent and UAW Local
31 covering bargaining unit employees at the Fairfax facility does not address cross-training
or related overtime coverage. (Jt. Exh. 2.) However, Robinson testified and believed that the
local union and Respondent’s managers had verbally agreed that management would provide
overtime coverage (presumably by unit employees) for unit employees while cross-training in 35
another trade area.
Upon arriving at the facility, Robinson called Nikolaenko via radio to find out why
Nikolaenko was not offering overtime to support mechanical cross-training. Nikolaenko
testified that he could tell that Robinson was “getting a little bit upset and frustrated,” so he 40
asked him to meet him in person to discuss his concerns in the section of the plant called

3 Burton did not testify, but Respondent did not dispute Robinson’s testimony regarding Burton’s
complaint.
4 Respondent intended cross-training to erase lines of “demarcation” among the mechanical trades in the
facility. Nikolaenko testified that Respondent required all plant assemblies to reach a goal of 100 percent cross-
training by the end of June, and that by April, they were behind schedule. (Tr. 173–174).
JD–59–18
4
“Zebra Zebra 29,” also known as “ZZ-29.” (Tr. 174–176, 181–182.) Nikolaenko testified that
this office area was located within “10 to 14 feet of the two production lines” on which
employees were working. (Tr. 179; R. Exs. 1–2.) This large area encompassed an open space
with a desk and bulletin boards, where he was working at the time, and an office behind a
closed door where management employees worked. A “team center” was located in the 5
vicinity where employees took breaks and ate lunch, but there was no evidence that it was
within earshot of ZZ-29. Robinson testified that when he and Nikolaenko began talking, they
stood about 2 feet apart, with production employees about 20-30 feet or more away. (Tr. 26–
27.) The photographs of the area show this manager’s office area separated from the
automobile production line and conveyor belt by railings, a platform and a walkway. (R. Exh. 10
2.) There was no dispute that the production lines, including conveyor belts, were up and
running, and creating loud noise while they met. (Id.)
When Robinson questioned Nikolaenko about why he was not offering overtime to
support cross-training for team leaders, Nikolaenko responded that he was not obligated to 15
provide such coverage. Nikolaenko testified that he tried to explain to Robinson that they did
not need to use nonscheduled overtime because he had sufficient manpower for cross-training
opportunities. (Tr. 181–182.) Robinson accused Nikolaenko of not bargaining in good faith
as they (management) had previously agreed to cover the team leaders, and that “we’re not
going to do any cross-training then” if management would not cover the team leaders as 20
agreed.5 Nikolaenko said that he could do the cross-training the way that he wanted to, and
that Robinson could not direct his employees’ work or give them orders. Robinson testified
that as he walked away, he heard Nikolaenko tell him that he was putting him on notice,
which he understood to mean that he would be disciplined. At that point, their disagreement
escalated as Robinson turned and walked back towards Nikolaenko. Nikolaenko told 25
Robinson that he was putting him on notice or reporting him because Robinson told him to
“shove something up his ass.” (Tr. 27–28.) Robinson claimed that he noticed body shop
planner and maintenance coordinator, Dean Erwin (Erwin), walking by, about 10-15 feet
away, as well as “some management people coming out of the office area,” “[r]ight when [he]
. . . asked [Nikolaenko]: Shove what up your ass?” Robinson denied telling him to shove 30
anything up his ass, but admitted that as he “came back up towards Nikolaenko,” he told him
that “we’re not going to do any fuckin’ cross-training if you’re going to be acting that way.”
Nikolaenko did not respond, and that he (Robinson) turned and left the area. (Tr. 28–30.)
Nikolaenko testified that during their conversation, Robinson became 35
“temperamental,” and asked “you want to play fucking games with me? That’s what we’ll do,
okay?” (Tr. 183–184.) Nikolaenko claimed that Robinson also said that he was “going to tell
the guys not to do mechanical cross-training.” He testified that after he admonished Robinson
about giving employees orders, Robinson started to walk away, commenting that “I run the
Body Shop. You know, you don’t run the Body Shop.” Nikolaenko admitted telling 40
Robinson that he would be “seeing [him] in Labor” if he ordered employees not to cross-train.

5 Robinson testified that management had previously agreed to cover the team leaders in a March 2017
meeting with the team leaders. (Tr. 27.) Nikolaenko never denied that this meeting took place. Nor did he
specifically deny that there had been some sort of verbal understanding regarding cross-training coverage at the
Fairfax facility. Rather, he testified that he was not obligated to provide such coverage when it was not
necessary, and that it was not addressed in the local or national agreements. (Tr. 181–182.)
JD–59–18
5
(Tr. 184–185.) According to Nikolaenko, Robinson turned around, walked back towards him,
and said, “[w]ell, you can shove it up your fucking ass.” (Tr. 185.) Nikolaenko explained, “at
that point that’s when I felt that the situation had escalated way out of control, and that’s
when I said: You know, you’re on notice. I’m going to call Labor. Which I did.” He
immediately called Tutt and told her that he “had put Chuckee on notice for his abusive action 5
and behavior towards [him].” (Tr. 185–186.) He testified that Robinson’s behavior “was too
aggressive to not allow . . . some sort of disciplinary action to occur.” When asked if he had
concern for his safety, he responded, “the answer would be yes because my fight or flight
mechanism kicked into high gear. And I think that because of that. . . I reacted as quickly as I
could, and I felt that something had to be done immediately to try to suppress the situation so 10
it wouldn’t get out of control.” (Tr. 186.) However, he admitted that nothing else occurred,
and the testimony from the two witnesses, discussed below, supports a conclusion that he did
not call Tutt until after Robinson walked away and left the area.
Erwin and Rob Politte (Politte) overheard part of the conversation between Robinson 15
and Nikolaenko. Erwin testified that he had been positioned outside the body shop office,
working about 10 feet away. Politte testified that he had been inside the body shop office, but
stepped out of the office after hearing loud voices. Both testified that the loud voices and
intensity of the outburst got their attention. Erwin also testified that “I could hear Chuckee
say: ‘You don’t run this, I do. And if you want to play. . . this fucking game, we’ll play this 20
fucking game.’” He also heard Nikolaenko respond, but could not hear what he said from
where he (Erwin) stood. He next heard Chuckee tell Nikolaenko, “Fuck you, and you can
shove the cross-training up your ass. . . [a]gain, it was extremely loud, and that’s when I
believe Rob had come out of the office at that time.” (Tr. 199.) Erwin stated that when
Robinson commented about shoving something up Nikolaenko’s ass, Robinson was “like less 25
than a one foot—I mean like a one foot—they were pretty much face to face.” Erwin further
testified that when he noticed them “face to face,” he felt like someone might need to
intervene, or that he as a “bystander” needed to do something. However, he recalled that
“they separated I believe from then on Chuckee left the area, and I don’t know what happened
after that.” (Tr. 199–200.)630
Politte testified that when he opened the door to see what was going on, he saw
Robinson walking away and saying, “I don’t give a fuck about your cross-training. You can
shove it up your fuckin’ ass.” Next, he witnessed Robinson turn around, walk towards
Nikolaenko, “put his finger in his face rather close and [say]: ‘I don’t care, call fuckin’ 35
Labor, take me to Labor.’” (Tr. 216–217.) At that point, he saw Nikolaenko walk into the
office and Robinson get on his scooter and drive away. Politte testified that “[y]ou could tell
[Nikolaenko] was visibly—I mean he was shaking.” He explained that he (Politte) was
concerned because “[he] honestly felt that Nikolaenko was going to get punched in the face.
The altercation was that close.” 7 (Id.) 40
Neither Erwin nor Politte intervened, and no one called or attempted to call or radio
for security.

6 Also see Tr. 29, 181, 199, 217–218.
7 There is no evidence that Robinson physically touched Nikolaenko, or threatened to do so.
JD–59–18
6
After receiving the call from Nikolaenko, Tutt investigated and received written
statements from him, Erwin and Politte. Tutt attempted to schedule a “76(a) interview” with
Robinson. After his initial refusal to meet, Tutt finally conducted the interview on April 13
with Robinson and his union representative, Gay.8 (Tr. 252.) Tutt testified that “[h]e
basically denied the whole entire incident and claimed that Mr. Nikolaenko was actually the 5
aggressor in the incident.” (Tr. 255.) She did not believe his version of what occurred with
Nikolaenko, and on April 21, issued Robinson a notice of disciplinary action for the April 11
incident for the balance of shift (BOS) plus 3 days on the record.9 The notice stated that:
You became loud and abusive yelling ‘and you can shove the fucking cross 10
training up your ass…you don’t run this I do!’ in stating [his] resistance to
management’s direction and yelled that [he] would take steps to coordinate
resistance to for the cross-training. You also yelled ‘you want to play that
fucking game, we’ll play the fucking game?’ Your conduct clearly violates
acceptable standards of conduct and for this you are assessed BOS+3 days… 15
(Jt. Exh. 3).10 Robinson refused to sign the initial disciplinary notice as written, maintaining
that he never told Nikolaenko to shove something up his ass. In resolution of the matter, Tutt
re-issued the disciplinary notice on April 24, stating instead that Robinson had “[become]
loud with a member of management [and used] abusive language,” conduct violating the 20
acceptable standard of conduct. (Tr. 32–35, 255–257; Jt. Exh. 4.) Robinson agreed to and
initialed the revised notice because he did not want to miss an upcoming Union election. He
also claimed that by then, the NLRB had become involved and cleared his record of some
prior discipline.11 (Tr. 34–38.)
25

8 Tutt testified that she arranged an interview date with Robinson’s union representative, Gay, for April
13, but that Robinson told her that she would have to call security to find him and the Kansas City police to get
him there. (Tr. 252). Robinson denied this, testifying that instead, he told Tutt that he would not meet without
his union representative. He said that at the time, he did not know that Gay was already scheduled to be present.
(Tr. 103-104). Nevertheless, Robinson presented later in the day for his interview, and there is no evidence that
Tutt mentioned, or used, his initial refusal to meet earlier in the day as a basis for any discipline. (Tr. 252–253.)
9 Robinson testified that then Union shop chairman, Johnny McEntire negotiated a suspension for the
balance of his April 21 shift plus 3 days of suspension. He returned to work on April 25. This was not
controverted. (Tr. 35.)
10 Respondent did not state which acceptable standards of conduct in the disciplinary notice. However,
plant rule, number 26, set forth in the local agreement between the Union and Respondent list “[a]busive
language to any employee or supervision.” (Jt. Exh. 2, p. 97.)
11 Respondent’s attempt to discredit Robinson’s testimony that his prior discipline had been removed
failed. Tutt testified that it was reduced, but never removed. (Tr. 263–269; R. Exhs. 3–4.) However, the
General Counsel rebutted her testimony with communications from Respondent’s own in-house counsel, Holly
Georgell. Georgell confirmed that Robinson’s prior 2015 discipline had been removed by Respondent as of
April 8, 2016 (related charge no. 150486 withdrawn on April 8, 2016) (GC Exh. 8, 12). Similarly, Georgell
confirmed on May 1, 2017 that the “LR” team had removed Robinson’s 2016 discipline such that it could not be
used against him for future progressive discipline (related charge no. 169148 withdrawn on May 3, 2017). (GC
Exhs. 11, 13; 5–7, 9–10.)
JD–59–18
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Credibility Findings12
Regarding this incident, I credit the testimony of Nikolaenko, Erwin, and Politte over
that of Robinson. Their testimony was consistent, straightforward, and believable. Erwin and
Politte testified that they heard Robinson tell Nikolaenko that he did not “give a fuck about 5
your cross-training,” and that Nikolaenko could “shove it up your fuckin’ ass.” Moreover,
Robinson admitted to telling Nikolaenko that he did not care about his “fuckin’ cross-
training,” and that he would basically tell his members not to do any cross-training. I find it
believable that given the language that he resorted to, and the credible and consistent
testimony by Erwin and Politte, that Robinson also told Nikolaenko that he could shove the 10
fuckin’ cross-training up his ass or that he could shove “ it” up his ass, referring to the cross-
training. Robinson also denied putting his finger in Nikolaenko’s face or being closer than
about 3 feet from Nikolaenko. Since neither Nikolaenko nor Erwin testified that Robinson
pointed his finger in Nikolaenko’s face, I only credit and find that Robinson came within
about 1 foot from Nikolaenko during their April 11 encounter. I do not doubt that Nikolaenko15
may have appeared to have been visibly shaken immediately following the altercation, but he
did not convey to either Politte, Erwin, or Tutt that he felt physically threatened by or afraid
of Robinson. (See Jt. Exhs. 3–4.)
C. April 25, 2017 Incident20
Robinson returned from his suspension on April 25, and at about 7:30 a.m., went into
the weekly 183 meeting. Robinson, James Walton (Walton) and Ben Miller (Miller), skilled
trades committeepersons, represented the Union. Plant manufacturing engineer director
Anthony Stevens; engineering manager Paul Sykes; stamping operations manager Paul 25
Fraelich, paint maintenance manager Christopher Degner, manufacturing
engineer/maintenance shift leader Robert Pudvan; manager of project equipment installations
Arthur Lambert; labor relations supervisor Ca-Sandra Tutt; Erwin; and Nikolaenko
represented management. Robinson sat in between Walton and Miller at one end of a long
conference table and the management representatives sat on either side of the table. (Tr. 41, 30
43–45, 115–117, 188; GC Exh. 4.)
The attendees met to discuss the subcontracting out of work in the paint shop. Degner
made the case for subcontracting the work. Robinson testified that when he began asking
questions about the work, hours and shifts for the bargaining unit employees, Stevens 35
interrupted telling him not to worry about it. Stevens also cautioned that he was getting too
loud. Robinson also asked management officials when the Union would receive documents

12 Credibility determinations may rely on a variety of factors, including the context of the witness’
testimony, the witness’ demeanor, the weight of the evidence, established or admitted facts, reasonable
inferences that may be drawn from the record as a whole, and the inherent probabilities of the allegations.
Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing
Shen Automotive Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003).
Credibility findings need not be all or nothing propositions. Indeed, nothing is more common than for a judge to
believe some, but not all, of the testimony of a witness. Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders,
352 NLRB 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd.
on other grounds 340 U.S. 474 (1951). Such is the case here.
JD–59–18
8
that it had requested via an April 23 email to Stevens (and also other managers).13 (Tr. 47–48;
GC Exh. 3.) Tutt responded that his general request for all costs for contractors was a
“fishing expedition.” Despite Tutt asking him for clarification about what specific costs he
was referencing, Robinson repeatedly demanded “all of the costs,” rather than any specific
costs associated with the paint shop or other area which was slated for subcontracting out 5
work. (Tr. 46–47, 151, 190, 202, 258.) Tutt warned Robinson that he was too loud and told
him to stop pointing at her. (Tr. 150–152.) Stevens also told him he was too loud. Robinson
responded to Stevens by asking him, “[w]hat is loud doing to you?” Robinson testified that at
some point Stevens accused him of “intimidating” him, and that he asked Stevens, “Sir, you
want me to speak like this, sir, so I don’t be intimidating you, sir?” (Tr. 49.) According to 10
Robinson, when Stevens told him that he was “acting unprofessional,” he told him that he was
“trying to speak this way so I don’t be intimidating you because you believe I’m intimidating
you.” Union representative Miller described Robinson’s tone as “sarcastic” in nature, and
stated that he spoke “like maybe a smart aleck.” (Tr. 127–128.) However, Union
representative Walton testified that Robinson spoke in “kind of a mock servile type fashion 15
where he said: Is this how you want me to talk, Mister? Something like that.” (Tr. 119–120.)
The meeting ended shortly after Robinson’s speech. (Tr. 191.)
According to Tutt and management witnesses Nikolaenko, Stevens, Erwin, and
Degner, Robinson grew “extremely more agitated and aggressive,” as he repeatedly 20
questioned Degner and Sykes about the process, and Tutt about the costs. Stevens testified
that when Sykes tried to move forward since they had gone through the subcontracting
checklist for the meeting and answered his questions, Robinson raised his voice such that he
became very “agitated and irritated through his yelling at that point.” Stevens said that he
asked him to please lower his voice again, and at this point, Robinson leaned over and said, 25
“Yes, Master, sir. Yes, Master, sir.” Stevens testified that, “Chuckee repeatedly hunched
over in his chair and repeated the ‘Yes, Master, sir. Is this what you look for Master, sir?’”
He described Robinson’s tone as that of a slave speaking to a master. Stevens testified that
after the meeting, when he and Sykes walked out onto the work floor, Robinson, who was
standing with another employee, repeated, “‘Master, Master, Master’” as they passed by.14 30
(Tr. 150–154.)
Degner testified that when Tutt and Stevens asked Robinson to lower his voice,
Robinson told them that they could not tell him how to speak, and that Tutt said that he did
not have to “speak in that tone,” or point his finger. Degner stated that Robinson’s tone 35
changed when he asked Stevens, “Is that what you want me to do, Master Anthony? Is that
what you’re telling me to do?” He also recalled Robinson referencing that, or asking if,

13 On April 23, Stevens sent an email to members of the management-labor 183 meeting team, with an
attached April and May contractor and UAW schedule. In an email response to Stevens, Robinson expressed his
dismay with Respondent subcontracting out work generally, threatened to file additional grievances over the
matter and requested that Respondent remove all contractors and allow bargaining unit members to do all
remaining work. He also indicated that he “would like to know how are you paying the contractors?” (GC Exh.
3.)
14 Sykes did not testify.
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Stevens wanted him to be a “good Black man.”15 (Tr. 202-203). Degner testified that
Robinson’s demeanor and manner of speaking made him uncomfortable. (Tr. 205.)
Politte described Robinson as getting “very loud, pointing at Ca-Sandra,” and
becoming very upset when Sykes said that management would go forward with the 5
subcontracting plan. He also recounted how Robinson began talking in “a slower, less
intelligent voice than he normally uses,” when he addressed Stevens as, “Yes, Master, I’ll do
whatever you say Master.” (Tr. 224.)
Pudvan also recalled Robinson calling Stevens, “Master,” because as his voice 10
escalated and several people asked him to quiet down, he responded, “How might I talk,
Master?” “You want me to talk like this, Master?” Pudvan believed his speech to be
“indicative of slavery talk.” (Tr. 235–236.)
Tutt testified that she told Robinson that he did not have to point at her, and asked him 15
to lower his voice. When Sykes tried to move forward, Robinson “got even louder . . .[a]t
which point Anthony Stevens said, ‘Hey, Chuckee, you need to lower your voice.’” She
testified that, “Chuckee bent over,” saying, “Yes, Master. Yes, Master Stevens . . . This is
how you want me to talk, yes, Master?” Tutt explained that she was offended because she
was “not a slave,” and Robinson was acting “like a slave.” (Tr. 259–260.) Tutt believed that 20
by his comments, tone and behavior, Robinson had violated Respondent’s anti-harassment
policy. She also believed that this was a “personal attack against Anthony Stevens.” (Tr.
260; Jt. Exh. 1, pp. 555–565.)
Following the meeting, Robinson visited plant manager Bill Kulhanek’s office to 25
complain about what happened at the meeting.16 Robinson testified that he felt “railroaded.”
While he waited to speak to Kulhanek, Tutt contacted him by radio to inform that he was
being put on disciplinary notice. (Tr. 50–53.) During his conversation with Kulhanek,
Kulhanek advised him to apologize to Tutt and Stevens. (Id.)17 Robinson admitted that “[he]
didn’t apologize for [his] behavior,” but at the same time, testified that he apologized for 30
offending her by saying “Yes, Mr. Sir,” and her taking it as his acting like a “slave boy.” He
also claimed to have apologized to her “before when [he] said, ‘I’m just an old country boy
from the Midwest.’” (Tr. 107.) Tutt testified that later that day, when Robinson wanted to
apologize, she did not want to discuss the incident with him at that time. (Tr. 261.)
35
On April 26, Robinson attended an investigatory interview with Tutt and Gay. Tutt
asked Robinson why he spoke in a “slave voice” or “southern slave voice” like on television.
Robinson claimed not to know what a southern voice was and not to know what she meant.
Tutt then asked why he had said, “Yes, Master” to Stevens, and Robinson maintained that he

15 Robinson never testified that he asked Stevens if he wanted him to be “a good Black man,” or
referenced “good black man.” When asked on cross-examination if he had told management that Black men
naturally talk loudly, Robinson responded that he has told management that “Black men talk with authority. I’m
a Black man, and I speak with authority if that’s what you’re saying.” (Tr. 90–91.)
16 Robinson did so because Kulhanek had previously told him that he could visit him to vent about
problems on the floor rather than getting upset and escalating the situations. (Tr. 50–53.)
17 There is no evidence that he apologized to Stevens.
JD–59–18
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did not say “Master,” but had instead said “Yes Mister.” Tutt asked what the difference was,
and Robinson insisted that he was only trying to show Stevens respect. When Tutt asked if he
thought Stevens was a racist, Robinson responded that he did not know him well enough to
make that “judgment.” The meeting recessed until April 27, during which time Tutt issued
Robinson a notice of disciplinary action for the balance of his shift plus 2 weeks on paper, 5
with balance of shift plus 1 week served. He refused to sign it because it involved a 2-week
suspension rather than the 1-week suspension he believed he should have received under the
progressive discipline policy in the collective-bargaining agreement. In part, it read that
during the April 26 meeting, he became “verbally belligerent, directed racially inappropriate
comments to members of management, responding to their requests that you stop yelling by 10
saying ‘yes master’ ‘yes master,’ and asked ‘Do you want me to speak like this?’ in a
southern, country accent.” It further stated that his actions and comments were “offensive,
threatening and intimidating, and . . . the type of conduct that creates a hostile work
environment for those in attendance.” Robinson subsequently filed grievances on this
discipline. (Tr. 58; Jt. Exhs. 2, 5, 7–10.)18 15
Credibility Findings
I credit testimony of Respondent’s witnesses regarding Robinson’s comments and
behavior during this meeting. It was more consistent and straight forward. In summary, 20
Nikolaenko, Stevens, Erwin, Degner, and Tutt testified that Robinson became loud, and then
lowered his voice. He then repeatedly referred to Stevens as, “Yes, Master, Your Master
Anthony,” “Yes, sir, Master Anthony,” in a manner reminiscent of a slave talking to his
master. Erwin testified that Robinson asked “Is that what you want me to do, Master
Anthony? Is that what you’re telling me to do,” ” and referenced “be a good Black man.” (Tr. 25
203.) (Tr. 153, 191, 204, 233, 259.) Moreover, the General Counsel’s witness, Walton, for
the most part corroborated testimony that Robinson lowered his voice and spoke in a “mock
servile” manner. As the General Counsel argues, some of the Respondent’s witnesses
testified as to their impression of Robinson’s comments; however, they also consistently
testified at to what he said and the manner in which he spoke. There was no evidence that 30
these witnesses conspired to discredit Robinson or otherwise align their testimony against
him.19
In contrast, Miller’s testimony was vague, equivocal and inconsistent. Miller, who sat
next to Robinson, conveniently did not recall what the disagreement between Robinson and 35
Stevens was about. On the one hand, he denied that Robinson got loud during the meeting,
and testified that he spoke in a “soft” voice and a “normal talking tone.” However, on the
other hand, he was able to recall that, “Chuckee went to like where he was sarcastic. I mean
he wanted to be making a point, I’m not upset. I’m not going to show you that I’m upset, so
he was sarcastic.” In fact, this testimony supports a finding that Robinson’s testimony that he 40

18 Robinson did not dispute the substance of Tutt’s version of his disciplinary interview.
19 The General Counsel further argues that Tutt’s testimony should be discredited because she did not tell
the truth about Robinson’s prior discipline being removed. While I believe that Tutt knew or should have known
that Robinson’s prior discipline had been removed based on Respondent’s in-house counsel’s emails, this does
not diminish my credibility determinations about Robinson’s behavior and comments during the April 25th
meeting.
JD–59–18
11
called Stevens “Mister” in an effort to show respect is completely unbelievable. (Tr. 127–
128.)
Therefore, I find that Robinson spoke in a subservient or slave-like vernacular while
repeatedly addressing Stevens as “master.” 5
D. October 6, 2017 Incident
On October 6, Robinson attended a weekly manpower meeting convened to discuss
manpower changes and four new UL jobs that management wanted to implement at the 10
facility. (Tr. 62–63.) Robinson and Ben Miller attended on behalf of the Union. Technical
shift lead over the body shop, Tom Mcphee; Degner, Pudvan; and Stevens represented
management. Stevens did not normally attend these manpower meetings, but other managers
had asked him to be present due to the importance and urgency of the matter—an imminent
shift change and their inability to finish the necessary manpower moves in the weeks leading 15
to the meeting.20 There was little dispute that this was the last day for the team to get the
skilled trades manpower realigned to a two-shift, rather than three-shift production, and to get
the bids out for the skilled trades members to get the jobs their seniority rights allowed.21
Robinson and Miller sat on one side of the table next to each other, while Pudvan and Degner
sat on the side opposite them. Mcphee sat at one end of the table. Stevens sat away from the 20
table next to a wall behind Pudvan and Degner (and across the table and beyond from
Robinson and Miller). (Tr. 60–62; GC Exh. 4.)
The Threat
25
After Mcphee began the meeting with a discussion of new “UL” electrician jobs in
connection with a new automobile, Robinson asked about the duties of these new positions,
and expressed the Union’s need to have the job descriptions. He also wanted to discuss an
open “pool” position that would cover workers out sick or on vacation. Robinson admitted
that despite Mcphee telling him that he would get him the job duties for the new jobs, he 30
continued to ask him about them. Initially, Robinson testified that he told Mcphee that, they
“messed up on the Manpower moves,” and that “[Stevens] was saying that we need to move
forward. And I told him that we not gonna move forward because we need to send this up to
the Shop Chairman . . . Dwayne Hawkins on these moves because we didn’t have no
clarification on what they supposed to be doing.” Then, he testified that it was after he 35
mentioned escalating the matter to Hawkins, that “[Stevens] said we’re moving forward. And
then I said we’re gonna end up messing up the Manpower moves. The Manpower moves are
going to be messed up, and all it’s going to do is create chaos on the floor.” Robinson denied
that he raised his voice, and claimed that he spoke to everyone, and not just to Stevens. 22 (Tr.
62–65.) 40

20 There is no evidence that Stevens attended the meeting to intentionally rile Robinson.
21 In fact, Robinson was the only one who initially downplayed the importance of the meeting. Miller
admitted that the moves “had to get done that day . . . In order for everybody to be where they needed to be, it
needed to be done that day.” (Tr. 133–134.)
22 Robinson’s testimony about the types of questions he repeatedly asked McPhee were not disputed.
JD–59–18
12
Next, Robinson testified that Stevens asked if he had threatened him, and he
responded that he had not, but that “[t]hese moves are going to be messed up whether you
want to—you can take it however, you want, but I’m not threatening you. I said the
Manpower moves are going to be messed up. It’s going to create chaos on the floor.” (Tr.
65). Robinson testified that Stevens said that he (Robinson) was intimidating him, and that he 5
(Robinson) replied that, “This is the game that y’all keep playing. Every time that I get some
move like y’all want to bring up that I’m threatening and intimidating you . . . That’s the
reason why the NLRB is going to be having you guys in a few weeks on trial about me
threatening - - always saying that I’m threatening and intimidating you.”23 (Id.) Robinson
admitted that throughout the meeting, he repeatedly asked Stevens why he was there and told 10
Stevens that he should not be there.” He also testified that he told Stevens that he was
intimidating him (Robinson) with his presence, and admitted that he did not like Stevens.
Miller insisted that he did not hear most of what Robinson said up to this point
because of multiple conversations going on, including his with Degner. Nevertheless, he 15
recalled that Stevens said, “something like is that a threat,” and that “Chuckee kinda laughed
and said I wouldn’t take that as a threat.” (Tr. 130.) Stevens further testified that he began to
listen at that point, and heard “Chuckee say: No, that’s not a threat. Your process is messed
up. It’s going to be chaos on the floor . . . Then we went back to the meeting.” (Tr. 130–131.)
20
On the other hand, Stevens testified that after he insisted that they move on after
Mcphee had answered Robinson’s questions multiple times, Robinson looked at him and said,
“I will mess you up.” He responded by asking Robinson “[i]s that a threat?” Stevens stated
that Robinson replied, “[y]ou can take that as a threat if you want to. It was feedback,” as he
(Robinson) pointed towards him. Stevens testified that he “immediately” sent an email off to 25
labor “to let them know what had transpired.” (Tr. 158–160.) The managers and Union
representatives continued to discuss the manpower moves necessary for transitioning from
one to two shifts. Stevens confirmed that Robinson asked why he (Stevens) was in the
meeting, and the managers explained to him several times that he was there “to support us if
there’s any issues at that point and help keep us going here.” (Tr. 160.) 30
Degner testified that at some point in the meeting, Stevens told Robinson that they
were going to move forward in a “more professional manner,” and Robinson said something
to the effect of, “[t]he way you’re going I’m gonna mess you up.” He said that Stevens took
offense and asked if he was threatening him. Degner added that Robinson responded that he 35
could take it that way if he wanted to, or “something along those lines.” (Tr. 229.) 24
The Music Playing on Robinson’s Phone
At some point, the alarm on Robinson’s cell phone began to play music. There is 40
dispute about the type of music or songs played, but no dispute that it was loud enough to be
heard by everyone, and that it played for a while. Robinson and Miller testified that no one

23 Robinson testified that he was referring to these proceedings. (Id.)
24 Pudvan did not testify about the alleged threat, but confirmed that Robinson did not want Stevens in the
meeting, and “was very aggressively trying to get [him] to leave” by asking him why he was there and telling
him to leave, and otherwise disrupting the meeting. (Tr. 237.)
JD–59–18
13
asked Robinson to turn the music off or down. However, Degner testified that he asked
Robinson why he was playing the music, and to turn it off. Stevens also testified that
Robinson was asked to turn it down. During this time, Robinson continued to tell Stevens he
should not be in the meeting, and that he (Robinson) felt threatened and intimidated by his
(Stevens’) presence. Stevens insisted that he did not have to leave. (Tr. 66–68.) Once or 5
twice when Stevens stepped out of the room to take a phone call or take care of other
business, Robinson turned the music off. However, he turned the music back on as soon as
Stevens returned to the meeting.
Robinson testified that his phone only played one song- country tune, “Friends in Low 10
Places” by Garth Brooks. When asked how long it played, he testified that “[i]t kept playing.
I don’t know the approximate time, but it kept playing.” He then said, with a sort of smirk,
that he did not know how long, “but it was playing for a while,” and that he “just let it sit
there for a little bit, then I shut it off…meanwhile…Bob Pudvan was putting the Manpower
moves in, and I was still trying to ask Anthony to leave, leave out of the conference area.” 15
(Tr. 66–67.) Robinson also testified that “[i]t wasn’t loud. It’s as loud as our phones would
be. It wasn’t loud.” Robinson claimed that at some point, Stevens left the room, and the
meeting continued with a discussion and disagreement about another issue. He said the music
continued to play for about three more minutes. He and Miller left the meeting when they
could not reach an agreement with management. (Tr. 68–69.) 20
However, Stevens, Pudvan, and Degner testified that the songs played by Robinson on
his cell phone included those by the rap group Public Enemy, “Straight out of Compton,”
“Fuck the Police” and “Dope Man,” and contained offensive lyrics and words such as the “N”
word, “F—K the police” and other profanity. (Tr. 162–164; 227–229; 239–241.) 25
Stevens claimed the music was very loud, and consisted of “gangster rap type of
music…[s]o it was very disruptive to the group.” He testified that he stepped out of the
conference room for a while, and when he returned “[t]he music is continuing to play with
this gangster rap and shooting and Niggers and all sorts of inappropriate words . . .” He went 30
in and out of the conference room a few times, for about “15, maybe 20 minutes,” and the
phone continued to play different songs. He ultimately had to leave this meeting for another.
Regarding the lyrics, he testified that he heard them and the words, but did not recognize the
names of the songs until Pudvan told him. (Tr. 161–163.)
35
Degner testified that the music emanating from Robinson’s phone “was loud, and . . .
Tom Mcphee and Ben Miller were actually trying to have a conversation to try and move the
meeting forward. And it was just too loud. It just got very disruptive.” He explained that he
did not recognize the lyrics at first, but when he started listening to them, “it got very
offensive at that point . . . I mean I heard things like “Fuck the police” and some references to 40
killing and shooting and things of that nature. It kind of caught me a little bit off guard. And
it’s music that I wasn’t familiar with at the time.” When asked if any lyrics contained the “N”
word, he responded, “I believe there were. I believe there were.” (Tr. 227.) He also recalled
Robinson turning the music off when Stevens left the room, but turning it back on when
Stevens returned. He testified that this went on for about 20–30 minutes “off and on.” (Tr. 45
227–-228.) He maintained that he told Robinson that he needed to turn his music down
JD–59–18
14
because it was “disruptive and it’s offensive.” (Tr. 229.) Degner recalled that when Stevens
left, the music stopped, and it was “calm for a little bit.” He said at “some point Mr.
Robinson just stood up and said: ‘I’m not gonna do this anymore,’” and “I think he said
something like: ‘You can all kiss my mother fucking ass and left the room.’” Miller left, and
the managers finished the manpower moves. (Tr. 230.) 5
Pudvan testified that Robinson told Stevens that he would not participate or allow the
meeting to continue as long as he (Stevens) was there. He described how Robinson
“[fidgeted] with his phone and started to play some music at a high volume level in the
room,” and how others in the room had to listen and “kind of yell over the music.” Pudvan 10
further testified that, “there were more than a handful of songs, but there were several that I
personally recognized from N.W.A.,” such as “Straight out of Compton,” “F the police” and
“Dope Man.” (Tr. 239.) Pudvan confirmed that Robinson turned his phone off on the few
occasions that Stevens left the room, only to resume playing it as soon as he returned. He
testified that Robinson played about 10–20 minutes worth of music in total, and that Robinson 15
and Miller left the meeting about midway through, with Robinson telling them that he was
“gonna write a whole bunch of grievances and y’all can kiss my MF’g ass.” (Tr. 241.)
Miller testified that Robinson’s phone went off, and “was loud, but [they] continued
the meeting.” He did not recall if a ring tone or music played, but recalled that it did not last 20
as long as 15 to 20 minutes. (Tr. 131, 134.) Subsequently, when asked if “[t]he music used
the ‘N’ word regularly,” he responded that “I can’t tell you whether it did or not.” And, when
asked if it used “MF” regularly,” he responded that, “I cannot tell you what it said at all.”
Finally, when asked if it “[used] the ‘F’ word regularly,” he said, “[n]ot that I’m aware of. I
could not—I honestly [did] not pay attention to what music it was. I went on with the 25
meeting. I was focused on the meeting and the work that had to get done.” He denied that
anyone asked Robinson to turn the music down or off. (Tr. 134–135.) Despite his own
efforts to continue with the meeting, he recalled that after Robinson saw that management
“was still moving forward he said: I’m not going to be involved in this. I’ll present you with
grievances,’ and he got up and left. When he got up and left I packed my stuff up because I’m 30
not going to be there by myself. I got up, and as I walked out I believe I told Tom Mcphee
. . . ‘[d]on’t fuck this up.’” (Tr. 132.)
Disciplinary Interview with Gallinger
35
Labor relations manager, Randy Gallinger, met with Robinson and Gay on October 13
for an investigative interview. Gallinger recounted how he doubted Robinson’s version of
events based on his investigation and Robinson’s inconsistent explanations during the
interview. Gallinger testified that Robinson wavered back and forth in his statements,
including those referencing the songs played—“his answers changed back and forth to there 40
were probably some other songs that played. No, no other songs played. I don’t really know
what other songs played. And then he became more and more upset as I tried to point out the
inconsistencies in his answer.” Although Robinson denied having played music with
“objectionable lyrics,” he asked Gallinger, “‘[w]ell, what’s wrong with those songs? Is it
because it’s Black music?’ And then he got a little bit angrier.” Robinson ultimately told 45
JD–59–18
15
Gallinger that he was going to “plead the Fifth” on whether or not he played the N.W.A.
songs.25 (Tr. 285–287.)
Robinson admitted that he told Gallinger that curse words in the lyrics of N.W.A
songs, like “Fuck the Police” were “acceptable because that’s what we do at the auto plant. 5
That’s what’s on the floor. People play that, and that’s how we speak down there.” However,
he claimed that the “N” word was not acceptable and that he did not use it. (Tr. 73–74.)
Robinson also testified that he asked Gallinger questions, such as whether or not Stevens
called security because he felt threatened, and whether “there was a policy that you can’t play
music in a meeting?” (Tr. 74.) 10
On October 17, Tutt issued Robinson’s suspension for the BOS plus 30 days for his
conduct during the skilled trades manpower meeting when he threatened Stevens by telling
him he was “going to mess [him] up.” The notice further stated that he disrupted the meeting
and prevented it from moving forward by refusing to participate with Stevens and by “loudly 15
playing music on [his] phone that contained objectionable language and racially charged
lyrics, despite being repeatedly asked to turn it down, violating [his] PARA. 19 obligations.”
26 (Jt. Exhs. 6, 1(p. 19)). Robinson refused to sign the notice, and a copy was received by his
representative, Gay. (Id.)
20
Credibility Findings
It is clear that management officials were frustrated by Robinson’s tactics to disrupt
the manpower meeting and stall the moves. It is also apparent that Robinson disrupted the
meeting in part due to his disagreement with management’s proposed changes, but mostly 25
because of his disdain for Stevens and frustration with his presence at the meeting. First,
while the management team wanted Stevens at this particular meeting to assist in moving the
process forward to completion, there is no evidence to support Robinson’s belief that the
collective-bargaining agreement precluded him from being present. Next, I find Robinson’s
denial about telling Stevens he would “mess” him up, and his testimony about the songs he 30
played unconvincing, inconsistent, and self-serving. Moreover, Robinson’s demeanor during
his testimony- smirking at times- belied his explanation of what he told Stevens and the music
he played. Therefore, in the instances where Robinson’s testimony differs from that of
Respondent’s witnesses, I credit the latter.
35
Robinson insisted that he never threatened Stevens, but merely told everyone in the
meeting that the proposed manpower moves would be “messed up” and create “chaos” on the
floor. I do not believe his version. Management witnesses consistently confirmed that he
addressed Stevens directly, when he said that he would “mess” him up. Even Miller heard
“Chuckee kinda [laugh]” and tell Stevens that he “wouldn’t take that as a threat,” before 40
talking about how the changes would mess up and cause chaos on the floor. (Tr. 130–131.)
However, Miller did not hear what Robinson said to prompt Stevens asking “is that a threat?”

25 I credit Gallinger’s testimony regarding the interview; it is not inconsistent with Robinson’s for the
most part, and Gay did not testify.
26 The interview reconvened on October 17 because Gay had to leave before it ended on October 13, and
that is when Tutt presented him with the discipline. (Tr. 71, 76.)
JD–59–18
16
Overall, Robinson presented disjointed, meandering testimony about what, when, how and
why he commented about “messing up.” Therefore, I credit the testimony of the management
officials that Robinson told Stevens that he would “mess” him up, could take his comment
however he wanted to take it. It is unbelievable that everyone misinterpreted what he said,
except the person sitting next to him who did not hear what all was said. I also believe, 5
however, Robinson’s attempt to explain that he was talking about the manpower changes only
occurred after he told Stevens that he would “mess” him up.
Robinson admitted that he intentionally disrupted the meeting by trying to get Stevens
to leave and by playing loud music on his cell phone, but denied playing N.W.A. songs with 10
offensive, profane lyrics or even having them on his phone. (Tr. 73.) He testified, however,
that on the work floor, they used curse words, and that some people played music on the floor
containing explicit lyrics.27 (Tr. 74.) Robinson’s response as to how long he played the music
(“awhile”) was vague, and he maintained that it was at a normal cell phone volume, while all
other witnesses, including Miller, testified that it was loud. Robinson insisted that he played a 15
country song, while the other witnesses, except Miller, heard rap songs with offensive lyrics.
Miller, on the other hand, conveniently claimed not to have heard what type of music it was. I
find it unbelievable that Miller, who admitted the music was loud, could not decipher whether
it was a country or gangster rap song emanating from a cell phone in such close proximity to
him. I find that his own vague, equivocal testimony was contrived to support that of 20
Robinson. This is further evidence that the songs played were not of the country genre but
more likely than not N.W.A. offerings containing objectionable lyrics. Thus, I credit the more
consistent testimony of management officials about the types of lyrics that played on
Robinson’s phone during their manpower meeting. I also credit the mostly undisputed
testimony that the music continued on and off whenever Stevens left and reentered the 25
meeting room. Finally, I believe that Degner asked Robinson to turn the music off or down;
it is unbelievable that they all sat through such loud music without doing so.
III. DISCUSSION AND ANALYSIS
30
I have for the most part credited management witnesses over Robinson regarding his
comments during the three encounters at issue in this case. The General Counsel argues that
since Robinson engaged in protected activity during those incidents, his conduct was
protected by the Act. Respondent on the other hand argues that Robinson was never engaged
in protected activity on the occasions for which he was suspended, or in the alternative, his 35
comments and behavior cost him the protection of the Act.
A. Legal Standards
Under the Board’s longstanding Interboro doctrine, “an individual employee’s 40
reasonable and honest invocation of a collective-bargaining right” is considered concerted
activity. Interboro Contractors, 157 NLRB 1295, 1298 (1966); Meyers Industries, 281 NLRB
882, 884 (1986). This remains the case even if the employee turns out to be wrong. See
Omni Commercial Lighting, Inc., 364 NLRB No. 54, slip op. at 3 (2016) (citing Interboro,
above, and NLRB v. City Disposal Systems, 465 U.S. 822 (1984)). The key distinction 45

27 No one contradicted testimony that production employees regularly use profanity on the work floor.
JD–59–18
17
between concerted action and individual action is that it “must be engaged in with or on the
authority of other employees, and not solely by and on behalf of the employee himself.”
Meyers Industries, 268 NLRB 493, 497 (1984). There is no disagreement that when a union
representative is negotiating with management or otherwise conducting union business on
behalf of his constituents, he or she is engaged in protected, concerted activity. 5
Since it is undisputed that Respondent disciplined Robinson on three occasions solely
for his conduct during his three meetings with management officials, the appropriate analysis
is whether his conduct in those meetings was initially protected under the Act and, if so,
whether he ultimately forfeited that protection. See Hahner, Foreman & Harness, Inc., 343 10
NLRB 1413, 1425 fn. 8 (2004). “When an employee is discharged for conduct that is part of
the res gestae of protected concerted activities, the pertinent question is whether the conduct
is sufficiently egregious to remove it from the protection of the Act.” Stanford New York,
LLC, 344 NLRB 558, 558 (2005). To determine whether or not an employee loses such
protection, the Board established a test balancing the following four factors: (1) the location 15
of the discussion; (2) the subject matter of the discussion; (3) the nature of the employees’
outburst; and (4) whether the outburst was provoked by the employer’s unfair labor practices.
Atlantic Steel Co., 245 NLRB 814 (1979). This framework allows the Board to balance
employees’ rights with the employer’s interest in maintaining workplace order and discipline.
See Triple Play Sports Bar & Grille, 361 NLRB 308, 311 (2014); Plaza Auto Center, Inc., 20
355 NLRB 493, 494 (2010), enfd. in part 664 F.3d 286 (9th Cir. 2011), decision on remand
360 NLRB 972 (2014).
B. Respondent’s Suspension of Robinson for His Protected Union Activity on April 11,
2017 Violated Section 8(a)(3) and (1) of the Act.25
Respondent argues that “Robinson did not honestly and reasonably assert any issue
with cross-training because he is not deemed to be engaged in concerted activity when
arguing a position that is directly contrary to what his International Union has agreed to in
their National Agreement.” (R.Br.) I disagree, and find that Robinson’s production floor 30
meeting in the managers’ office area on April 11 was protected concerted activity. He was
clearly acting in his capacity as a union committeeperson when he requested to meet and met
with Nikolaenko. It is undisputed that his meeting with Nikolaenko was prompted by one of
the bargaining unit employees, Bob Burton, and Burton’s complaint that Nikolaenko had
refused to abide by what the Union believed to be an earlier verbal agreement for 35
management to utilize overtime to cover bargaining unit team leaders during cross-training.
(Tr. 24–25.) Respondent presented evidence that there was no mention of cross-training in
the bargaining agreements with the Union. Further, Nikolaenko testified that overtime
coverage on that day was unnecessary. However, Nikolaenko never denied that he and the
Union had discussed and/or come to some kind of verbal agreement about overtime coverage 40
for team leaders who cross-trained. In fact, it appears that they did one and/or the other, but
disagreed on how and exactly when such coverage might apply. Nikolaenko believed it was
his call to determine if overtime was necessary, and Robinson seemed to understand that it
was a go whenever management assigned cross-training. Therefore, there is no evidence that
Robinson did not honestly believe or understand that management had agreed in some way to 45
provide overtime coverage for team leaders during cross-training. I find this to be the case,
JD–59–18
18
based on the evidence of record, even if Robinson misunderstood or turned out to be wrong.
See Omni Commercial Lighting, Inc., above.
1. The place of confrontation weighs in favor of protection
5
The first Atlantic Steel factor, the place of the discussion, favors protection. Although
the confrontation on April 11 occurred on the shop floor, there is no evidence that it caused
disruption to the Respondent’s operations . In Datwyler Rubber & Plastics, Inc., 350 NLRB
669, 670 (2007). Although there were production areas operating in the vicinity and a break
area, the machinery running was very loud, and there is no evidence that any of the 10
production employees working on the machinery were in close enough proximity to the
manager’s office area to hear or observe the discussion between Robinson and Nikolaenko.
(Tr. 27). The only witnesses to what occurred were management officials Erwin and Politte.
Erwin and Politte testified that the loud voices and the intensity of the outburst drew their
attention to Robinson and Nikolaenko, but what they heard only caused them to stop for a few 15
moments. (Tr. 199, 217.) Further, as the General Counsel pointed out, Nikolaenko invited
Robinson to meet in person to continue the radio discussion about the cross-training overtime
in the area outside the manager’s office. He did so knowing that Robinson was upset about
what Burton had reported to him. Moreover, there is no evidence that Robinson’s one-time,
spontaneous outburst affected in any way Nikolaenko’s ability to maintain discipline among 20
the production employees in the workplace. See Stanford Hotel, 344 NLRB 558, 558 (2005)
(location factor minimized the potential that outburst would affect supervisor’s ability to
maintain discipline and weighed in favor of protection “even though the outburst
inadvertently was overheard by one employee”).
25
2. The subject matter of the confrontation weighs in favor of protection
The subject matter of the disagreement between Nikolaenko and Robinson was about
Nikolaenko’s failure to assign overtime coverage for team leaders required to cross-train, and
what I have determined to have been Robinson’s sincere and honest belief that Nikolaenko 30
had breached a verbal agreement with the Union. This issue was directly related to
Robinson’s protected concerted activity, and therefore weighs in favor of Robinson’s
receiving the Act’s protection. See In Re Felix Industries, 339 NLRB 195, 196 (2003) (the
Board held that the subject matter of the charging party’s discussion is a collective-bargaining
right, which weighs in favor of the charging party’s protection). Thus, Respondent’s argument 35
that the subject matter raised by Robinson was not protected activity because it was not
encompassed in any agreement is without merit.
3. The nature of Robinson’s outburst weighs in favor of protection
40
I have credited testimony that Robinson told Nikolaenko that, “we’re not going to do any
fuckin’ cross-training if you’re going to be acting that way,” and to shove it (referring to the
cross-training initiative) up his “fuckin’ ass.” Respondent argues that the nature of
Robinson’s outburst is loud, profane and personal ad hominem, which makes him lose the
protection of the Act. The General Counsel argues that in the course and context of the 45
conversation, Robinson did not lose the Act’s protection.
JD–59–18
19
The Board has applied an objective standard to determine whether the conduct in
question is threatening or so opprobrious as to lose the protection of the Act. See Plaza Auto
Center, Inc., above at 975. The Board has also acknowledged that employees are allowed
some leeway for impulsive behavior when engaged in protected activity, since “protections 5
Section 7 afford would be meaningless were we not to take into account the realities of
industrial life and the fact that disputes over wages, bonuses, and working conditions are
among the disputes most likely to engender ill feelings and strong responses.” Consumer
Power Co., 282 NLRB 130, 131–132 (1986). In this same vein, an employee’s behavior
must be more than “disrespectful, rude, or defiant.” Severance Tool Industries, 301 NLRB 10
1166, 1170 (1991), enfd. 953 F.2d 1384 (6th Cir. 1992). However, this allowance is “subject
to the employer’s right to maintain order and respect.” Tampa Tribune, 351 NLRB 1324,
1324–1325 (2007), enf. denied Media General Operations, Inc. v. NLRB, 560 F.3d 181 (4th
Cir. 2009).
The Board has also permitted Union representatives some latitude when in the midst of 15
“zealously representing the interests of unit employees, and has found what might be
considered offensive remarks in other settings to be permissible in the context of a grievance
meeting or other similar setting.” Covanta Bristol, Inc., 356 NLRB 246, 254 (2010) (citing
Dreis & Krumpf Mfg., 221 NLRB 309, 315 (1975), enfd. 544 F.2d 320 (7th Cir. 1976)). See
also Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1034 (1976) (employee’s 20
profane statements made during the course of processing a grievance do not remove the
employee from the Act’s protection unless the overall conduct is so violent or obnoxious as to
“render him wholly unfit for further service”). Thus, “[i]n assessing whether the employee’s
conduct removed the protections of the Act, the asserted impropriety ‘cannot be considered in
a vacuum’ nor ‘separated from what led up to it.’” Meyer Tool, Inc., 366 NLRB No. 12, slip 25
op. at 11 (2018), quoting NLRB v. Thor Power Tool, Co., 351 F.2d 584, 586 (7th Cir. 1965).
In other words, an employee’s questionable behavior should be assessed in the context of the
circumstance in which it occurred. In some cases, for example, the Board has found that
curse words, including “the use of the word ‘fuck’ and its variants,” “insufficient to remove
otherwise protected activity from the purview of Section 7.” Pier Sixty, LLC, 362 NLRB No. 30
59, slip op. at 3 fn. 9 (2015).
In Plaza Auto Center, Inc., above, on remand from the Court of Appeals for the Ninth
Circuit, the Board followed the Court’s instruction to “reapply the four-factor Atlantic Steel
test for determining when an employee’s outburst during protected activity costs the 35
employee the protection of the Act.” After doing so, the Board concluded that the employee’s
profane rant (in a raised voice calling manager a “fucking mother fucker,” a “fucking crook,”
an “asshole,” and “stupid,”) did not ultimately cause him to lose the protection of the Act.
The Board reached this conclusion even after determining that the employee’s “obscene and
denigrating remarks must be given considerable weight because the employee targeted the 40
supervisor personally, uttered his obscene and insulting remarks during a face-to-face meeting
with him and used profanity repeatedly.” However, the Board majority concluded that their
finding that the nature of the outburst weighed against protection did not preclude a finding
that the employee lost the protection of the Act. Plaza Auto Center, Inc., above at 977. See
also, Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22, 27 fn. 1 (D.C. Cir. 2011) (“…[i]t 45
JD–59–18
20
is possible for an employee to have an outburst weight against him yet still retain [the Act’s]
protection because the other three [Atlantic Steel] factors weight heavily in his favor.”)
In Kiewit Power Constructors Co. v. NLRB, above at 29, the Court of Appeals for the
District of Columbia observed Board precedent of “using an objective standard” to determine 5
whether conduct is threatening. The Court of Appeals found that testimony by the supervisor
that he felt threatened or feared for his safety as a result of an employee’s conduct “is not
determinative.” Id. at 28–29 & fn. 2. In Kiewit, 355 NLRB 708 (2010), enf. 652 F.3d 22,
(D.C. Cir. 2011), employees, in protesting against enforcement of what they believed to be a
bad policy that negatively impacted their safety, angrily told their supervisor that if they were 10
laid off, “‘it’s going to get ugly and you better bring your boxing gloves.’” Id. The Board
decided that these words were not “unambiguous or ‘outright’. . . threats of physical
violence.” In doing so, the Board reasoned that “the employees’ prediction that things could
‘get ugly’ reasonably could mean that the Respondent’s continuation of the disciplinary
enforcement of its [policy] would engender grievances or a labor dispute,” and that the 15
“additional remark that Watts had ‘better bring [his] boxing gloves’ is more likely to have
been a figure of speech emphasizing employees’ opposition to the [policy], rather than a
literal invitation to engage in physical combat.” Id. at 710.
Here, I find that the nature of Robinson’s outburst, spontaneously made in the midst of 20
his protected activity, weighs in favor of protection. It included face-to-face use of profanity.
However, he did not put his finger in Nikolaenko’s face or threaten him in any way. Nor is
there evidence of Robinson posing a physical or violent threat to anyone. Nikolaenko
testified that he felt threatened; Politte believed it looked like Robinson might punch
Nikolaenko; and Erwin felt like someone, but apparently not him, should intervene. 25
However, there is no evidence that either of them related their great fear of physical harm or
threat from Robinson to Tutt. Nor did either Erwin or Politte attempt to intervene or call
security. In fact, the only accusation set forth in the initial and amended notices of discipline
was that Robinson used abusive language. Finally, it is clear that Robinson’s remark that
Nikolaenko could stick the cross-training “up his ass,” was not a threat to actually do so, or a 30
threat of violence, but a metaphor. See Kiewit, above; see also, Leasco, Inc., 289 NLRB 549
fn. 1 (1988) (“I’m kicking your ass right now” determined to be a colloquialism, and not an
actual threat); Kay Fries, Inc., 265 NLRB 1077, 1089 (1982) (phrase “F__ the $80; shove the
$80 up your f—ing ass” understood to mean “keep it” rather than an actual threat, and
therefore did not lose the Act’s protection); Southwestern Bell Telephone Co., 649 F.2d 974, 35
975–977 (5th Cir. 1982) (union steward’s repeated statements that he would see the
supervisor “fry” found to be ambiguous). Further, Robinson did not target Nikolaenko
personally, i.e., he did not call him a profane name such as in the cases above (e.g., f--king
mother—ker, f—king crook, asshole). Moreover, Robinson reacted in protest to what he
honestly believed was a breach of an agreement, as well as Nikolaenko’s threat to report him 40
to labor relations if he (Robinson) directed his unit members to stop cross-training. Thus, I
find that the nature of Robinson’s outburst on April 11 did not cost him the protection of the
Act.
Respondent relies on cases in which employees lost the protection of the Act for similar 45
conduct as Robinson’s. However, I find that they are distinguishable, and that the cases cited
JD–59–18
21
above where the employees did not lose the protection of the Act are more applicable.
Respondent cites DaimlerChrysler Corp., 344 NLRB 1324, where the Board found the
employee’s profanity (called supervisor “asshole,” and said “bullshit” before walking away
and returning in an “intimidating” fashion and saying “fuck this shit” and he did not “have to
put up with this bullshit”), involving more than a single spontaneous outburst, cost him 5
protection because it occurred in front of other employees, thereby heavily impacting the
employer’s interest in maintaining discipline and order. That was not the case here, and
moreover, in DaimlerChrysler, three of the four Atlantic Steel factors weighed against favor
of protection. Respondent also relies upon Trus Joist MacMillan, 341 NLRB 369 (2004)
(employee called supervisor a “lying bastard” and accused him of being a “prostitute” for the 10
plant manager), in which the Board majority found the employee lost protection where only
one Atlantic Steel factor favored protection. There is no evidence here, as in Trus Joist
MacMillan, that the employer’s adverse actions occurred several days prior to the employee’s
premeditated outburst intended to embarrass a manager in front of others, thereby
undermining his future effectiveness. Here, Robinson’s outburst was a spontaneous, one 15
occasion outburst, which did not occur in front of production employees. Respondent also
relies on Tampa Tribune v. NLRB, 560 F.3d 181 (4th Cir. 2009), where the Court of Appeals
denied enforcement of 351 NLRB 1324, above, and determined that the respondent lawfully
disciplined an employee for a single occurrence of calling his supervisor a “fucking idiot.”
However, the underlying Board majority in that case found that “use of a single profane and 20
derogatory reference” was not sufficiently opprobrious for the employee to lose the Act’s
protection. See Tampa Tribune, 351 NLRB 1324, 1325.
4. Robinson’s conduct was provoked by an unfair labor practice
25
The fourth Atlantic Steel factor slightly favors protection. Although there is no evidence
that Nikolaenko’s refusal to provide overtime coverage was in fact an unfair labor practice, it
provoked Robinson’s behavior in that Robinson held an honest belief that such refusal
constituted an unfair labor practice and breach of an agreement.
30
Since I have determined that all of the Atlantic Steel factors weight in favor of protection,
I find that Robinson did not lose that protection of the Act on April 11, 2017. Therefore,
Respondent violated the Act when it suspended Robinson for his outburst in the midst of his
protected activity on April 11.
35
C. Robinson’s Conduct on April 25, 2017 Lost the Protection of the Act
All parties agree that the purpose of the 183 Meeting which Robinson attended on April
25, 2017 was for representatives of the Union and Management to meet and discuss
subcontracting out work at the Fairfax Facility. (Tr. 39, 146, 190.) At the beginning of the 40
meeting, Robinson asked management questions about having outside contractors come into
the Fairfax Facility to perform work and how it would impact bargaining unit employees. He
was also concerned and asked about his prior requests for information regarding the cost to
the company of subcontracting out all work. (Tr. 46.) Robinson was clearly engaged in
protected activity since the meeting was convened to talk about collective bargaining issues45
between management and the Union. I reject Respondent’s argument that Robinson was
JD–59–18
22
never engaged in protected concerted activity because “he was engaged in a personal attack
that is devoid of any purpose to enforce the parties’ agreement, induce group action, or act on
behalf of his constituent workers.” (citing Winston-Salem Journal v. NLRB, 394 F.3d 207, 211
(4th Cir. 2005)). I have credited testimony that he addressed Stevens repeatedly as “Yes
Master,” and acted in a subservient manner. Consequently, the next question is whether or 5
not Robinson’s behavior during the meeting lost the protection of the Act (that he initially
enjoyed) pursuant to the Atlantic Steel test.
1. The place of confrontation weighs in favor of protection
10
The place of discussion weighs in favor of protection. The asserted outburst took place in
a closed door meeting attended only by representatives of the Union and Management whose
sole purpose was to discuss terms and conditions of employment within the context of
collective bargaining, i.e., subcontracting out work and how it would affect unit members.
Therefore, there was no disruption to the workplace, or interference with Respondent’s ability 15
to manage its production workers. Datwyler Rubber & Plastic, 350 NLRB at 670 (outburst
occurred during an employee meeting, where employees were free to raise workplace issues
and in a location that might not disrupt employee’s work process); Datwyler Rubber &
Plastic, above at 675 (loud voices would not cause a loss of protection when the meeting is
only for specific people to attend). 20
2. The subject matter of discussion weighs in favor of protection.
The subject matter of discussion weighs in favor of protection. Robinson’s conversation
with others relates to “terms and conditions of employment,” as previously discussed, which 25
means the subject matter of his conversation did not cost him “the protection of the Act
because it serves the Act’s goal of protecting the exercise of Section 7 rights.” Plaza Auto
Ctr., Inc., above at 978.
3. The nature of the outburst weighs against protection.30
In context, I find in this particular instance, that the nature of the outburst weighs against
protection. Robinson, in the midst of this meeting, repeatedly addressed Stevens as “Master,”
using slave vernacular, and insinuating that Stevens wanted him (Robinson) to be subservient
or treat him like a slave master. I find that he diverted from his union representational 35
purpose and disagreement with management’s subcontracting out of work, to intentionally
engage in a more serious personal attack against Stevens for trying to get him to refrain from
yelling at Tutt. There is no evidence that Stevens or other management officials’ interaction
incited such a response. It is true that the Board has permitted Union representatives leeway
with certain outbursts when in the midst of “zealously representing the interests of unit 40
employees,” but I do not find that Robinson was in the midst of doing so when he drifted into
his prolonged side tirade against Stevens. Covanta Bristol, Inc., above at 254
In Winston-Salem Journal, 341 NLRB 124, 125-127 (2004), enfd. denied 394 F.3d
207 (4th Cir. 2005), a supervisor, at a crew meeting, told the employees that their teamwork 45
needed improvement. The charging party, a union chairperson, interrupted him by saying that
JD–59–18
23
he did not treat all the employees equally (based on what he believed to be past unfavorable
treatment), called him a racist, and accused the employer of maintaining a racist place to
work. In its analysis, the Board found that the third factor weighed in the charging party’s
favor because, although he interrupted the supervisor and called him a racist, as “this conduct
was not so inflammatory as to lose the protection of the Act.” Id. Although the Court of 5
Appeals disagreed with the Board, I find the Board’s case is distinguishable. Robinson’s
comments arose from his personal animosity of Stevens, and unfounded belief that Stevens
treated him or wanted him to submit to him like a slave. He was not representing that Stevens
or Respondent had engaged in unfair treatment of his constituents.
10
Respondent argues that Robinson’s behavior created a racially hostile environment,
relying on cases where racially hostile outbursts lost the protection of the Act. His examples
included Avondale Industries, 333 NLRB 622, 637 (2001) (an employee was lawfully
discharged after calling a foreman a “Klansman”). In Avondale Industries, the administrative
law judge, affirmed by the Board, noted that the employee’s "unfounded assertion that [her 15
supervisor] was a Klansman raised an issue of racial prejudice that could potentially embroil
other African-American employees in her ongoing personal dispute." Id. Here, there were no
non-union representative employees present whom he could have potentially embroiled in his
issues with Stevens; however, his dispute and views were personal, without evidence that they
were shared by his fellow union representatives in attendance. Moreover, Robinson did not 20
like Stevens, and his demeanor towards him was a personal attack which had the effect, even
from an objective view, of negatively impacting other meeting attendees such that he was
unfit at that time to carry out his union duties. Thus, I find that this factor moderately weighs
against protection.
25
4. Robinson’s conduct was not provoked by an unfair labor practice
Robinson’s outburst occurred because Stevens interrupted him to try to get him to
calm down and refrain from yelling at Tutt. The General Counsel contends that “Robinson
was upset about what he believed was a breach of the collective bargaining agreement and a 30
potential unfair labor practice.” Although Robinson was demanding general information on
the spot, his initial information request was made only a couple of days prior to the meeting.
Further, there is no allegation or evidence to support that Respondent engaged in an unfair
labor practice by insisting that Robinson narrow his requests for information. Thus,
Robinson’s outburst was not provoked by an unfair labor practice. 35
Since two of the four factors, including the nature of the outburst, weigh against favor
of protection, I find that in this instance, Robinson lost the protection of the Act.
Consequently, I find that Respondent did not violate the Act when it issued Robinson
discipline stemming from this conduct on April 25. This allegation is therefore dismissed. 40
D. Respondent Lawfully Suspended Robinson for Engaging in Conduct on October 6, 2017
that Lost the Protection of the Act
Respondent attended an October 17, 2017 “Manpower Meeting,” which was a 45
regularly scheduled meeting between Union and management representatives to discuss
JD–59–18
24
manpower moves. (Tr. 60, 129.) His attendance at the meeting and certain of the subsequent
conversations during the meeting were protected concerted activity in furtherance of his
duties as a committeeperson. As the meeting began, Robinson asked about the UL jobs – a
new classification of jobs created by the Respondent which would directly impact bargaining
unit work and manpower. Robinson disagreed with members of management about the UL 5
jobs and he indicated that he was going to escalate the issues to the union chairman. Thus,
Robinson engaged in protected activity during the meeting. However, I find below that he
lost this protection during the course of the meeting.
1. The place of confrontation weighs in favor of protection 10
The October 6 manpower meeting occurred in the same conference room as the April
25 paragraph 183 meeting between management and the Union. (Tr. 156–157.) As previously
stated, this type of closed door meeting, held outside the confines of the production floor and
without unit employees, should find favor of protection of the Act. Datwyler Rubber & 15
Plastics, Inc., above (favored protection where discussion took place away from customary
work area); Noble Metal Processing, Inc., 346 NLRB 795, 800 (2006) (favored protection
where outburst occurred during meeting held away from work area causing no disruption to
the work process).
20
2. The subject matter of discussion weighs in favor of protection
The skilled trades manpower meeting is a weekly meeting convened to discuss job
openings and moving workers from shift to shift to cover needed spots in the plant. (Tr. 156.)
The meeting on October 6 was particularly important because the team had not been able to 25
finish the needed manpower moves in previous weeks and October 6 was the last opportunity
to complete the moves before the plant moved from three shifts to two. (Tr. 157, 225, 237).
The subject matter of the manpower meeting is related to the CBA and Robinson’s duties as
union committeeperson. This is in favor of the protection. 360 NLRB at 978. However, what
is questionable is whether or not Robinson’s decision to threaten Stevens, or disrupt the 30
meeting by playing disruptive, offensive music did.
3. The nature of the outburst weighs against favor of protection
I have credited testimony that Robinson told Stevens that he would “mess” him up. 35
However, I do not find that this comment alone constituted a physical or violent threat
towards Stevens. Steven’s accusation of a physical threat is belied by everyone’s demeanor at
the table. Robinson’s conduct while making this statement was not in any way physically
menacing or aggressive. 360 NLRB at 976. In fact, Stevens was not sitting at the conference
table with the others, but on the other side of it from Robinson against a wall. Although 40
Stevens emailed labor relations immediately after, he did not leave the room or call security
for this reason, nor did anyone at the table intervene. Moreover, I find that Robinson’s
statement is similar to that found not to have constituted a threat in Kiewit, 355 NLRB 708
(“it’s going to get ugly and you better bring your boxing gloves” not “unambiguous or
outright…threats of physical violence.”) The absence of an actual physical threat weighs in 45
favor of protection of the Act. Severance Tool Industries, 301 NLRB 1166, 1170 (1991), enfd.
JD–59–18
25
953 F.2d 1384 (6th Cir. 1992). Therefore, I do not find that Robinson’s statement alone was
sufficient to favor loss of protection. However, in considering the entire meeting I must find
that the nature of Robinson’s overall behavior weighs heavily against protection of the Act.
I have also believed that Robinson intentionally played loud music on his cell phone, 5
with offensive lyrics, in an attempt to disrupt the meeting for the sole purpose to get Stevens
to leave. In evaluating this factor, the Board has considered whether the employer provoked
the employee’s outburst. See Plaza Auto Center, Inc., above at 979. Although Stevens
attempted to get Robinson to stop asking the same questions and move along with the process,
I do not find that Stevens’ actions rose to a level where they reasonably provoked Robinson to 10
begin playing loud, profane, and offensive music for over 15 minutes during a meeting in
which he was acting on behalf of his constituents as Miller attempted to do. While the type of
language in the songs may have been commonly used on the work floor, and Miller testified
that he told managers not to “fuck” up the manpower moves before he left the meeting, there
is no evidence that profane language was routinely used (or played) during the manpower or 15
other meetings between management and the Union. In fact, there was uncontroverted
testimony that other union officials never acted in this manner. Evidence of this is reflected in
how Miller attempted to work with management through the music playing and Robinson’s
rants until Robinson decided to get up and leave. It is simply a stretch in this case to believe
that Robinson’s behavior related to his duties as committeeperson or his role in the manpower 20
meeting. See Carrier Corp., 331 NLRB 126 fn. 1 (2000) (ALJ determined that employee
interrupting meeting and insisting on discussing unrelated topic was not engaged in concerted
activity).
Therefore, I find that Robinson’s comment to “mess” Stevens up, playing the 25
offensive music, and using profanity on his way out of the meeting, when taken together,
were sufficiently opprobrious to weigh against protection of the Act.
4. Robinson’s conduct was not provoked by an unfair labor practice
30
The fourth factor of Atlantic Steel does not favor protection. The General Counsel has
provided no evidence that Robinson’s conduct on October 6, 2017, was provoked by an unfair
labor practice on behalf of the Company. The General Counsel argues that “Robinson was
concerned that the Respondent was potentially violating the current Collective Bargaining
Agreement in how it was planning to move manpower in response to a new classification of 35
job and became upset at what he believed was a breach of an agreement and a potential unfair
labor practice.” However, there is no evidence except Robinson’s self-serving testimony that
Respondent had committed an unfair labor practice.
In summary, two of the four Atlantic Steel factors weigh in favor of protection, but the 40
nature of the outburst weighs heavily against protection, as well as the fourth factor.
Therefore, I find that Respondent did not violate the Act when it suspended Robinson for his
conduct during the October 6 manpower meeting. Consequently, this allegation is also
dismissed.
45
JD–59–18
26
E. The Wright Line Analysis is not Applicable
Respondent argues that the Board’s Wright Line28 mixed motive standard is applicable
in this case since it suspended Robinson on three occasions for reasons unrelated to his
protected activity. However, as I have found, Robinson’s suspensions were issued for 5
conduct related to his protected activity. Thus, I find that Wright Line is not applicable here.
However, alternatively, I find that under Wright Line, I would reach the same conclusions
regarding the allegations. Under Wright Line, 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 adverse action. If this prima facie case is established, the burden shifts to 10
the employer to demonstrate that the same action would have taken place even in the absence
of the protected conduct. Mesker Door, 357 NLRB 591, 592 fn. 5 (2011); Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 961 (2004).
F. Respondent’s Affirmative Defense That Deferral Is Warranted is Without Merit15
I have considered all of Respondent’s affirmative defenses set forth in its answer to
the consolidated complaint. Included in those defenses, was Respondent’s argument that the
disputes contained in the complaint are preempted by the parties’ collective-bargaining
agreement, and should be deferred to the grievance and arbitration procedure. However, 20
Respondent did not raise any arguments or support for this contention in its brief in an attempt
to show that deferment is warranted under Board law. Therefore, I find this defense is
without merit.
CONCLUSIONS OF LAW25
1. By suspending Charging Party Charles Robinson for conduct while engaged in
protected, concerted activity on April 11, 2017, the Respondent General Motors, LLC has
engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.30
2. By suspending Charging Party Charles Robinson for conduct while engaged in
protected, concerted activity on April 11, 2017, the Respondent General Motors, LLC
violated Section 8(a) (3) and (1) of the Act.
35
3. By suspending Charging Party Robinson for conduct on April 25 and October
6, 2017, Respondent did not violate the Act.
4. The complaint allegations are dismissed insofar as they allege violations of the
Act not specifically found.40

28 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
JD–59–18
27
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. 5
Specifically, Respondent shall make Charging Party Charles Robinson whole for any
losses, earnings, and other benefits that he suffered as a result of the unlawful discipline
imposed on him on August 24, 2017, or otherwise imposed on him for conduct on April 11,
2017. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 10
(1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Further, Respondent shall file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters. Respondent shall also compensate the 15
Charging Party Charles Robinson for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year, Latino Express, Inc.,
359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the 20
following recommended29
ORDER
The Respondent, General Motors, LLC, Kansas City, Kansas, its officers, agents, 25
successors, and assigns, shall
1. Cease and desist from
(a) Disciplining or otherwise discriminating against any employee for 30
engaging in conduct protected by the Act.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
35
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Make Charging Party Charles Robinson whole for any loss of earnings
and other benefits suffered as a result of the discrimination against him in the manner set forth
in the remedy section of the decision.40
(b) Within 14 days from the date of the Board’s Order, remove from its
files any reference to the unlawful discipline issued to Charging Party Charles Robinson on

29 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.
JD–59–18
28
April 24, 2017, or otherwise in connection with conduct on April 11, 2017, and within 3 days
thereafter notify him in writing that this has been done and that the discipline will not be used
against him in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the 5
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.10
(d) Within 14 days after service by the Region, post at its Fairfax Facility
in Kansas City, Kansas copies of the attached notice marked “Appendix.”30 Copies of the
notice, on forms provided by the Regional Director for Region 14, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for 15
60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are 20
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 April 11, 2017. 25
(e) 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.
30
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations
of the Act not specifically found.
Dated, Washington, D.C. September 18, 2018
35
Donna N. Dawson
Administrative Law Judge
40

30 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.”
4,,,w ,o-wcy
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 discipline, or otherwise discriminate against you, for engaging in protected
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 make Charging Party Charles Robinson whole for any loss of earnings and other
benefits resulting from his discipline issued on April 24, 2017, or otherwise imposed on him
for protected conduct on April 11, 2017, less any net interim earnings, plus interest
compounded daily.
WE WILL compensate Charging Party Charles Robinson for the adverse tax consequences, if
any, of receiving one or more lump-sum backpay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discipline issued to Charging Party Charles Robinson on April 24, 2017.
WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the
discipline will not be used against him in any way.
WE WILL 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.
GENERAL MOTORS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under 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.
1222 Spruce Street, Room 8.302, St. Louis, MO 63103-2829
(314) 539-7770, Hours: 8:00a.m. to 4:30p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-197985
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.
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, (314) 449-7493.