Gestamp South Carolina, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 2, 2011

11-CA-022595 (N.L.R.B. Mar. 2, 2011)

JD–09-11
Union, SC
UNTED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GESTAMP SOUTH CAROLINA, LLC
and
DAVID ANTHONY KINGSMORE, Cases: 11–CA–22595
an Individual 11–CA–22628
and
REGGIE ALEXANDER,
an Individual
Jasper C. Brown Jr., Esq.,
for the General Counsel.
John J. Coleman III and Marcel L. Debruge, Esqs.
(Burr & Forman, LLP), of Birmingham, Alabama,
for the Respondent.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter arises out of a consolidated
complaint and notice of hearing issued on September 30, 2010,1 against Gestamp
South Carolina, LLC (the Respondent or Gestamp), stemming from unfair labor practice
(ULP) charges filed by David Anthony Kingsmore and Reggie Alexander, individuals.
The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by suspending and then discharging Kingsmore
and by discharging Alexander because they engaged in organizing activities on behalf
of the United Steelworkers (the Union). The complaint further alleges that a supervisor
committed two independent violations of Section 8(a)(1).
Pursuant to notice, I conducted a trial in Columbia, South Carolina, from
December 6–10, at which I afforded the parties full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence.

1 All dates hereinafter occurred in 2010, unless otherwise indicated.
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Issues
1) Did the Respondent suspend Kingsmore on February 17, and then discharge
him on February 24, because he did not disprove the Respondent’s suspicion
that he misrepresented the nature of his separation from prior employer BMW
during his September 29, 2009 interview for a supervisory position, or
because of his union activities?
2) Did the Respondent discharge Alexander on February 19 because he
deliberately falsified his timesheet by claiming 38 extra minutes of pay for
February 9, or because of his union activities?
3) Is Michael Fink a statutory supervisor and agent of the Respondent?
4) Did Fink, in approximately early February, unlawfully threaten Kingsmore
with discharge for his union activities?
5) Did Fink, on February 11, unlawfully interrogate Alexander about his union
activities?
Witnesses and Credibility
The General Counsel called Alexander and Kingsmore, Union Organizer Randy
Rigsby, and the following employees: Human Resources (HR) Assistant Mary Harper,
CMM Technician Jimmy Stewart, Jr., and Forklift Driver Dean Tollison.
The Respondent called the following managers/supervisors: HR Manager Susan
Becksted, Maintenance Manager Dennis Blanton, General Manager Carmen Evola,2
Director of Purchasing and Logistics Roger Fuller, Quality Supervisor James Holt (who
was an hourly employee at all times relevant), Maintenance Supervisor Daniel Morris,
Assembly Shift Supervisor Jason O’Dell, Shipping and Receiving Manager Michael
Sullivan, and Quality Manager Jurgen Weckerman.
The Respondent also called Quality Engineers Michael Fink and Charles
Beasley. The General Counsel alleges Fink to be a statutory supervisor, a contention
that the Respondent denies. Although Beasley holds the same position as Fink, he is not
named in the complaint, and it is immaterial for purposes of this decision whether or not he is a
statutory supervisor.
Further, the Respondent called two employees: Line Technician Dominic Gist,
Sr., and IMS Leader Jennifer Meese.
Deciding the issues in this case hinges on credibility resolution, including the
plausibility of certain accounts of conversations and actions. Before going into

2 Evola has been the highest management official at the facility at all times relevant. See R.
Exh. 10, an organizational chart.
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specifics, I cite the well-established precept that “‘[N]othing is more common in all kinds
of judicial decisions than to believe some and not all’ of a witness’ testimony.” Jerry
Ryce Builders, 352 NLRB 1262, 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).
The trier of fact must consider the plausibility of a witness’ testimony and appropriately
weigh it with the evidence as a whole. Golden Hours Convalescent Hospitals, 182
NLRB 796, 787–799 (1970).
Alexander was generally credible. He answered questions readily and with no
apparent efforts to embellish or slant them, was appropriately consistent in his answers
on direct and cross-examination, and his testimony comported with that of Rigsby, who
was also credible.
Kingsmore, on the other hand, was not fully reliable. I do take into account his
apparent lack of sophistication and perhaps naïveté. This is reflected in his answer to
my question of why he confided in Fink that he was trying to get the Union in. He
readily answered that Fink “kind of made Alex Keller [Kingsmore’s supervisor] leave me
alone . . . Keller was not a very nice person. . . . I’d had him throw stuff at me, cuss at
me and grab me once.”3 That Kingsmore took such abuse from a supervisor certainly
indicates that he was unaware of his avenues of recourse.
Nonetheless, the following factors diminish his credibility, particularly vis-à-vis
other witnesses who struck me as more reliable. As Kingsmore’s testimony progressed,
he expanded on antiunion sentiments expressed by management/supervisors; his
testimony that the Union did not instruct him to try to keep organizational activities from
management’s knowledge was contradicted by Rigsby and Alexander (and possibly by
common sense); and his testimony on cross-examination did not fully comport with what
he said on direct examination.
The Respondent raised an issue about Harper’s status as a confidential
employee, but in any event, she credibly testified only about general timekeeping
practices in early 2010, and not on anything specific pertaining to Alexander or
Kingsmore.
Stewart, in contrast, was not a reliable witness. His demeanor was markedly
defensive. That aside, his testimony was unbelievable. Thus, he testified that at
around the time Alexander was discharged, he was working at a computer when he
overheard Supervisor O’Dell make the statement on the floor, about 7 or 8 feet away,
“We got one of them. Now the rest of them will probably be scared now, but there’s a
couple more of them we got to get.”4 Yet, according to Stewart’s own testimony, he
reacted casually and did not even bother to look up from the computer. This is
particularly odd in light of Rigsby’s credited testimony that Kingsmore and Stewart were

3 Tr. 437. Kingsmore’s testimony about his relationship with Fink was supported by Fink’s
credible testimony that Kingsmore and other employees came to him to “vent” or seek advice
when they experienced language problems with Keller and other members of the salaried group
who had come from Germany. Tr. 607.
4 Tr. 68.
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the first employees to have contact with the Union and were the most active members
of the Union’s organized committee.
O’Dell denied making any such statement, and I do not believe that he would
have been so crass. In this regard, I credit the Respondent’s witnesses’ testimony that
training was given to supervisors concerning what they should and should not say to
employees. I also accept their testimony that everyone in the production area must
wear ear plugs, which interferes with hearing normal speaking other than in face-to-face
conversation. Accordingly, I do not credit Stewart’s testimony.
One other witness was noticeably defensive: Manager Sullivan, who appeared ill
at ease throughout his testimony. As with Stewart, reasons aside from demeanor also
lead me to doubt his believability. Thus, he testified that he had no conversations with
Alexander about the discrepancy in the latter’s timecard records but then was directly
impeached on this point by statements in his NLRB affidavit. He further testified that the
reports two employees made to him that Alexander had come in late on February 9 did
not lead him to investigate and compare the records, testimony that again was
contradicted by his affidavit. Moreover, his testimony that he came across the
discrepancies the following Monday in his routine checking of employees’ weekly hours
for payroll was also inconsistent with his affidavit. I further note that his testimony about
his role in checking the pertinent payroll records conflicted with Becksted’s account.
This brings up a significant flaw in the Respondent’s presentation of its case.
Alexander’s direct supervisor, Jean DeShields, was not called as a witness even though
both Sullivan and Becksted testified (albeit differently) that she played a role in the
investigation of Alexander’s timecard and how it compared with the time clock records.
I would have expected DeShields to testify on her role in Alexander’s investigation,
particularly when the Respondent’s witnesses were inconsistent.
Similarly, Becksted testified that in early February, General Manager Evola told
her that he had “just” learned that Kingsmore had been barred from BMW (an event that
occurred in August 2009, 6 months earlier) and that they discussed what to do, yet the
Respondent did not have Evola testify either about the circumstances of how he learned
or about his conversation with Becksted. Leaving aside Kingsmore’s testimony,
Supervisor Morris testified that he told Keller and Maintenance Supervisor Axel
Zimmerman that day. Moreover, Becksted testified that when she called Keller in
Germany in February, Keller confirmed Kingsmore’s testimony that on the day
Kingsmore was barred, he called Keller and reported it. I would have expected Evola to
testify about when and from whom he “just” learned of the BMW incident in February,
especially in light of the timing of the investigation and disciplinary action vis-à-vis
Kingsmore’s union activities.
The Respondent’s failure to call DeShields or to elicit testimony from Evola on
the above must be deemed to raise the suspicion that their testimony would not have
corroborated Becksted and would have been unfavorable to the Respondent’s case. I
therefore draw an adverse inference against the Respondent on these matters. See
Palagonia Bakery Co., 339 NLRB 515, 538 (2003); Dalikichi Sushi, 335 NLRB 622, 622
(2001); International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem
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861 F.3d 730 (6th Cir. 1988).
I further note with regard to Becksted’s testimony that although she provided a
very detailed account of her suspension interview with Kingsmore on February 17 (and
her subsequent conversations with him), she professed little recall of specifics about her
discharge interview with Alexander, just 2 days later. I also find suspicious her
testimony that she did not know the name or identity of the person at BMW with whom
she allegedly spoke concerning Kingsmore, and purportedly could not recall if she even
documented such conversation at all. I would expect that, as an experienced and
trained HR manager at a facility employing over 100 hourly employees, she would have
realized the importance of documenting any such conversation, especially when
Kingsmore was on suspension and facing discharge.
In contrast to my reservations about Becksted’s credibility, Managers/
Supervisors Blanton, Holt, Morris, O’Dell, and Weckerman appeared candid, they
answered questions without any obvious attempt to slant the answers, and nothing in
their testimony rang implausible. I will address Fink separately since his supervisory
status is disputed.
Blanton indirectly supported Alexander’s testimony that at a management
meeting about the Union, certain employees threatened or implied violence against
union supporters. Kingsmore testified that Blanton stated at such a group meeting,
“[W]hat pisses me off is and I take personally is Gestamp came in here and bought us
out, and the way we thank them is by calling the damn union.”5 No other witnesses
corroborated Kingsmore on this, and I seriously doubt that Blanton would have used
such intemperate language. Accordingly, I do not credit Kingsmore on this point.
Fuller denied Alexander’s testimony that they had a conversation about how
other employees were treating Alexander or about the Union. The General Counsel
does not allege that Fuller said anything violating Section 8(a)(1) and, in light of other
credited testimony, I need not resolve this conflict.
Holt denied telling Kingsmore that Evola was firing employees because of their
union activities, and I credit him. Kingsmore did not testify at all about such an alleged
statement until cross-examination—an unfathomable omission on direct examination
and an example of how he expanded his testimony as he went along. Moreover,
nothing in the record reflects that anyone was fired at the time.
As noted earlier, Morris testified that he informed Keller and Zimmerman on the
day that BMW barred Kingsmore. He also corroborated in part Alexander’s testimony
that antiunion employees had harassed him.
Weckerman denied Kingsmore’s testimony that immediately after they left
Kingsmore’s suspension meeting, they engaged in a brief conversation during which
Weckerman said, “[P]eople are telling Carmen [Evola] that you are the one that called

5 Tr. 443.
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the Union and he believe[d] them.”6 Weckerman testified that in their conversation,
Evola was not mentioned. According to Weckerman, Kingsmore sua sponte stated that
his suspension was due to people saying he was related to the Union, and Weckerman
did not respond. Because Kingsmore equivocated on whether he or Weckerman
brought up the Union in the conversation, and in light of my overall credibility
determinations, I credit Weckerman’s account.
Fink struck me as truthful and reliable, a conclusion based both on his demeanor
and on the substance of his testimony. In particularly, he candidly described a
conversation that he had with Kingsmore about the Union in January–February, and he
readily answered my questions concerning his supervisory authority over two offsite
Gestamp employees who work fulltime at BMW. I further take note that although
Alexander testified that Fink made a comment to him in early February that
demonstrated knowledge of Alexander’s union activities, the Respondent’s counsel did
not elicit from Fink a denial or, indeed, any testimony, about such a remark. Thus,
Alexander’s version went unrebutted, and I credit it.
To the extent that Beasley’s testimony was inconsistent with Fink’s in terms of
their responsibilities and duties, I credit the latter. Finally, Gist, and Meese offered
limited but generally credible testimony.
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents,7 and stipulations, as well as the thoughtful posttrial briefs that
the General Counsel and the Respondent filed, I find the following.
The Respondent, a subsidiary of a company headquartered in Troy, Michigan,
which in turn is a division of Gestamp Automocion in Spain, owns and operates a plant
in Union, South Carolina (the facility). There, it assembles and presses large “Class A”
motor vehicle parts, the large outer pieces of a vehicle that the consumer first sees
(including doors, hood, and roof). The Respondent has admitted jurisdiction as alleged
in the complaint, and I so find.
The Respondent purchased the facility from LSP effective October 1, 2009. It
retained LSP’s employees and continued LSP’s personnel policies, including those set
forth in the LSP employees’ handbook.8 The handbook provided, inter alia, that
misleading or false statements made in an application form or during an interview would
result in withdrawal of an offer of employment or in immediate dismissal (p. 11). The
handbook also contained a provision (p. 25) setting out three steps of discipline: verbal
warning, written warning, and termination, depending on the severity of behavior; stating
that the Company could also utilize a fourth step of suspension without pay; and
reserving the Company’s right, in its sole discretion, to determine the appropriate

6 Tr. 454; see also Tr. 597.
7 The Respondent’s unopposed motion to supplement the record, filed on January 14, 2011,
is granted.
8 R. Exh. 9, in effect at all times material.
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corrective action, including termination.
At the time of the Union’s organizing efforts, in January–February, the
Respondent employed approximately 100–110 hourly production employees and 35
salaried employees, including supervisors and engineers. The Respondent’s sole
customer was BMW, for which it made Class A parts for the BMW X6, a “crossover” or
luxury vehicle. Most employees worked either the first (8 a.m.–4 p.m.) or second (4
p.m.–midnight) shifts. Only a small “skeleton” crew worked the third shift, midnight–8
a.m.
Alexander, hired by LSP in June 2007, was a supply coordinator on the first shift
and responsible for taking care of parts and supplies that employees needed throughout
the plant. He was the sole employee based in the tool crib or general storage area and
spent about 80 percent of his working time there, the remainder in various areas of the
facility. Alexander’s supervisor was Logistics Manager Jean DeShields; however,
Sullivan had the responsibility of timekeeping for her employees, as well as those he
directly supervised. Alexander testified without controversion that prior to his
termination, he received no written warnings or suspensions.
Kingsmore, whom LSP hired in May 2007, was a first-shift quality inspector. His
job was to inspect body parts and inner body parts for defects or for any other problems
that would keep them from passing BMW’s standards. On a daily basis, he left his work
station and went to other areas of the building to perform his duties. At times, another
individual performed more detailed checks, and Kingsmore had a counterpart on the
second shift. Keller was his supervisor until Michael Greene took over in that position
shortly before Kingsmore’s discharge. The Respondent’s counsel represented that prior
disciplines Kingsmore received played no part in his discharge.9
Fink’s Status Under Section 2(11)
For purposes of this decision, Section 2(11) of the Act defines “supervisor” as an
individual having authority, in the interest of the employer, to, inter alia, assign, reward,
or responsibly direct other employees, or effectively to recommend such action, if the
exercise of such authority is not merely routine or clerical in nature but requires the use
of independent judgment. An individual need possess only one of these indicia. NLRB
v. Yeshiva University, 444 U.S. 672, 682 fn. 13 (1980); Mountaineer Park, Inc., 343
NLRB 1473, 1474 (2004); Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003).
Kingsmore testified that Fink regularly assigned him work and overtime and
authorized his requests for time off. On the other hand, both Fink and Manager
Weckerman, Keller’s supervisor, testified to the contrary, stating that Fink had no
supervisory authority over Kingsmore. Fink did testify that, once a month or so, at most,
he instructed Kingsmore to perform certain work, after first consulting with Keller, and
that, on occasion, he has signed off on an employee’s request for vacation when Keller
was on vacation or otherwise unavailable.

9 Tr. 488.
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Fink was a more credible witness than Kingsmore, and I credit his corroborated
testimony over Kingsmore’s. I again note that according to both Kingsmore and Fink,
Fink sometimes operated as something of an intermediary between Kingsmore and
Keller, with whom Kingsmore had a difficult relationship, in part because of language
issues.
As to Fink’s occasionally substituting for Keller in granting requests for vacation
leave, sporadic assumption of supervisory duties is insufficient to establish supervisory
status at other times. See, e.g., Kanawha Stone Co., 334 NLRB 235, 237 (2001);
Carlisle Engineered Products, 330 NLRB 1359, 1361 (2000). This same rationale
would appear applicable to Fink’s less-than-monthly instructions to Kingsmore to
perform certain work. Moreover, nothing in the record reflects whether Fink sua sponte
determined that Kingsmore should perform certain work or received requests for such
from other employees or supervisors and then related them to Keller. In any event, the
burden to show supervisory status is on the party asserting such. Loyalhanna Care
Center, 352 NLRB 863, 865 (2008); Masterform Tool Co., 327 NLRB 1071, 1071
(1999). The General Counsel has not done so.
Accordingly, I find that Fink had no supervisory authority over any hourly
employees in the plant. On the other hand, his testimony reflected his supervisory
authority over the two Gestamp employees who work full-time off-site at BMW’s plant in
Greer, South Carolina: Christopher Coggins and Reginald Fleming. Thus, he gives
them instructions, and if they have any problems, they report them to him or Beasley.
When they need to take off early, they inform him or Beasley. If they need time off for
an emergency, they contact him or Beasley. In such situations, Fink gives initial
approval; final approval is left to Weckerman, who has never disagreed with him. Fink
and Beasley prepare their biannual evaluations and review their training reports, the
results of which can impact on their getting raises; Weckerman has never disagreed
with Fink’s recommendations. Fink’s authority to effectively recommend the
performance evaluations of the two off-site employees, which affects their remuneration,
is sufficient, standing alone, to establish supervisory status. As the Supreme Court
articulated in Yeshiva University, above, at 683 fn. 17:
The statutory definition of “supervisor’ expressly contemplates that those
employees who “effectively . . . recommend” the enumerated actions are to be
excluded as supervisory. 29 U.S.C. § 152(11). Consistent with the concern for
divided loyalty, the relevant consideration is effective recommendation or control
rather than final authority.
In Pepsi-Cola Co., 327 NLRB 1062, 1063 (1999), the Board stated, “The fact that
the account representatives exercise their authority over employees who are not
included in the bargaining unit does not preclude the Board from finding the account
representatives to be statutory supervisors. Where the performance of supervisory
functions is ‘part and parcel of the individual’s primary work product rather than an
ancillary part of their duties,’ the Board has found individuals to be statutory supervisors
although they exercise such authority over nonunit personnel.” See also Union Square
Theatre Management, 326 NLRB 70, 72 (1998); Rite Aid Corp., 325 NLRB 717 (1998);
Detroit College of Business, 296 NLRB 318, 320–321 (1989).
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I recognize that the above cases pertain to whether an individual was eligible to
join the bargaining unit or was precluded as a 2(11) supervisor. However, the same
reasoning appears applicable to whether statements made by such an individual to
rank-and-file employees are imputable to the employer. I am unaware of any Board
decisions expressing the doctrine that an individual can be found a statutory supervisor
for some purposes but not for others. In other words, whether an individual is or is not a
statutory supervisor is an all-or-nothing proposition, and holding otherwise would be
anomalous.
I find, based on Fink’s testimony, that Fink’s supervision of Coggins and Fleming
is an important component of his primary work responsibilities, particularly in light of the
dependence of Gestamp on BMW. Accordingly, I conclude that Fink has been a
statutory supervisor over the Respondent’s employees at the BMW plant. Ergo, I
further conclude that his statements to employees at the facility, including Alexander
and Kingsmore, were imputable to the Respondent.
Union Organizing Activity
In late December 2009, Kingsmore initiated contact with the Union in Pittsburgh,
Pennsylvania, concerning organizing the facility’s hourly employees.10 The Union
assigned Rigsby to follow up with him. Rigsby’s first contacts were with Kingsmore and
Stewart. The Union’s strategy, conveyed to Alexander, Kingsmore, and other
employees, was to keep organizing efforts from the Company’s knowledge.
Alexander and Kingsmore were among the seven or eight employees on the
organizing committee that Rigsby formed. Rigsby held approximately four meetings of
employees in late January and early February, three at a hotel in Union, South Carolina,
and one in an apartment. Alexander and Rigsby attended all but one of them.
Alexander was vocal at these meetings. After the last of the meetings, in mid-February,
the Union decided to discontinue its organizing efforts.
Both Alexander and Kingsmore spoke to other employees about supporting the
Union after work, on breaks, and during and after lunch times.
In January–February, management became aware of the Union’s organizing
efforts because of the many questions that employees were asking on the subject,11
and Evola heard of such activity on or before February 1.12
In approximately early February, Kingsmore had conversations concerning the
Union with Fink and Sullivan, as follows.13
At his work area, Kingsmore told Fink that he was going to try to unionize the

10 R. Exh. 6 at 1–2.
11 Tr. 771, testimony of Blanton.
12 Tr. 909, testimony of Becksted.
13 The dates he gave for them were somewhat contradictory and confusing as far as
whether they occurred in late January–early February or in mid-February.
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plant. Fink warned him to be careful because if Evola found out, “[Y]ou’re gone.”14 As
noted earlier, Fink recalled that Kingsmore initiated a conversation about the Union but
could not recall the specifics, and both of them offered testimony demonstrating why
Kingsmore would have considered Fink something of a confidant.
Kingsmore spoke to Sullivan in the smoking dock area. He asked Sullivan what
he thought about the Union. Sullivan replied that it was good for employees and bad for
management and talked about his experiences working in union plants and the pro’s
and con’s of union representation. Kingsmore said that he was going to try to get the
Union in. Kingsmore credibly testified that he had this conversation with Sullivan
because he considered him sympathetic. I again note Sullivan’s unreliability as a
witness.
Shortly thereafter, Kingsmore spoke to Sullivan before the latter was scheduled
to attend a meeting with the Company’s legal counsel concerning the Union. Sullivan
stated that if Kingsmore had anything to say to him about the Union, to say it then
because after the meeting, Sullivan would no longer be able to talk to him on the
subject.
It is undisputed that Kingsmore later called Evola and told him that rumors that
Kingsmore was for the Union were false. At the time, Evola testified, he had not heard
any such rumors “other than discussions with my attorneys.”15
In early to mid-February, management, through Evola or Blanton, conducted
group meetings with approximately 20 employees each, explaining the Respondent’s
perspective regarding unionization. The General Counsel has not alleged that anything
Evola or Blanton said violated the Act.
Alexander and Meese attended one of Evola’s meetings, on about February 11,16
and Kingsmore one that Blanton led on about that same date. Statements that other
employees made at and after those meetings reflect how divisive the issue of
unionization was among them and the maelstrom of emotion generated.
Kingsmore testified that at the meeting he attended, an employee asked who had
called the Union. Blanton replied that it did not matter, and the employee said that
when they found out, “[W]e’re going to catch him in the parking lot and whip his ass.”17
Although Blanton did not recall any employees making threats at that meeting, he did
recollect stating, “[T]here’s no place for that. We need to make sure that that doesn’t
happen.”18 These remarks would naturally follow the making of a threat or suggestion
of violence or other illegal retaliation against union supporters, thereby indirectly
corroborating Kingsmore’s testimony, which I therefore credit.

14 Tr. 436.
15 Tr. 742.
16 The date is based on Alexander’s testimony; the Respondent provided no documents or
other evidence of another specific date of the meeting.
17 Tr. 444.
18 Tr. 777.
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At the meeting Alexander attended, Meese and other employees made remarks
about the effects on employees if the Union came in, including a possible shutdown.
After the meeting, Alexander returned to his work station. Soon afterward, three
employees came over, two together and one separately, and accused him of being one
of those trying to bring in the Union. Alexander named Gist as one of them. Although
Gist put the time of their conversation as shortly after he and Alexander arrived to work,
he did recall approaching Alexander and stating that he had overheard that Alexander
might have something to do with the Union.
In part because Morris corroborated Alexander’s version of what occurred, I
credit Alexander. However, in any event, Gist’s account is not necessarily inconsistent
with Alexander’s as far as substance and similarly reflects suspicions among employees
that Alexander was one of the chief union supporters.
Later that day, Alexander testified, he had a conversation with Morris in the tool
crib in which he related the accusations that the three employees had made against
him. Morris asked if they were causing a hostile work environment, and Alexander
replied that he did not know. Morris’ account was quite similar. He recalled a
conversation in the tool crib that they had after he observed Alexander appearing quite
upset. He asked Alexander why he was so bothered, and Alexander answered that “his
coworkers were harassing him about this ‘union stuff.’”19 Morris asked if he was being
harassed, and he said no. Morris reminded him of the Company’s antiharassment
policy and that Morris had an open door at all times.
I credit Alexander’s unrebutted testimony that following the conversation with
Morris, Fink came by the tool crib and made the comment, “I didn’t know you were one
of the ones that was trying to bring the Union in.”20 Alexander did not respond. Another
employee, whose identity Alexander could not recall, was in the vicinity.
Alexander further testified that on the day he was discharged, February 19, he
brought the subject up again with Fuller. According to Alexander, as Fuller walked by
the tool crib, they exchanged greetings, after which Alexander injected, “I’ve had three
different people come up to me, talking to me about my union activity.”21 Fuller simply
replied that he would get back to him.
Fuller denied ever having such a conversation. My problem with Alexander’s
version concerns the date he gave—a week after the incident occurred—and the
absence of an explanation of why he would have abruptly interjected the subject at that
time. Possibly, Alexander did make the statement to Fuller but was mistaken as to the
date and circumstances. Regardless, the version that Alexander set out was
implausible, and I do not credit it.
Review of Alexander’s February 9 Time Records

19 Tr. 648.
20 Tr. 316.
21 Tr. 318.
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Alexander, Becksted, Harper, and Sullivan all testified that it was normal
procedure at Gestamp for hourly employees to create weekly self-prepared timesheets
detailing their start times, end times, and total hours, and to submit them to their
supervisors. All further testified that employees also “swiped” in and out of an electronic
time system upon arrival and departure, thereby creating an electronic timecard report
that supervisors used to verify the reporting on the timesheets. This system of dual
timekeeping began in December 2009, and Harper testified that through February
employees were paid according to their timesheets, which supervisors normally turned
in to Harper by 5 p.m. on Mondays. As previously stated, Sullivan handled timekeeping
for DeShield’s employees, including Alexander.
During the week of February 8, Alexander arrived late on two occasions,
February 9 and 10.22 He maintained a preprepared template on his computer with 7
a.m. start times for his timesheet. Most likely on Friday, February 12, he changed his
start time for February 10 to reflect his late arrival at 7:15 a.m. but neglected to do so to
reflect his late arrival at 7:38 a.m. on February 9. Alexander had no record of
timesheet-cheating or any other dishonest conduct, and I find it quite unlikely that he
would have deliberately falsified his timesheet, knowing that Sullivan weekly checked
his timesheet against the electronic records. I therefore credit Alexander’s testimony
that he did not deliberately seek to steal 38 minutes of time but instead simply forgot to
make the change.
On the morning of February 9, two hourly employees whom Sullivan directly
supervised, Melvernia Jeter and Dean Tollison, asked whether Alexander had a new
start time after they observed him arrive late.23
Sullivan’s account of his subsequent actions conflicted with his affidavit. He
testified that their comment did not lead him to inquire into Alexander’s timesheet and
that he came upon Alexander’s timecard 6 days later, in the usual course of business of
checking timecards for all logistics department employees. Similarly, he testified that
their comment did not cause him to handle Alexander’s timecard any differently.
However, in his affidavit, he stated that their remark triggered his investigation into
Alexander’s timesheet.
In any event, when Sullivan compared Alexander’s electronic timecard24 to the
timesheet Alexander submitted, he noticed the discrepancy between the 7 a.m. start
time in the timesheet and the 7:38 a.m. start time reported by the electronic timecard
system for February 9. He advised Alexander of this discrepancy when Alexander
came to his office to request a vacation day. Alexander insisted that if he wrote 7 a.m.,
then 7 a.m. was correct. Alexander testified that Sullivan responded, “Well, I’ll fix it this
time. Be more careful about your time.”25 Sullivan denied ever having any conversation

22 See GC Exh. 2, his timesheet for the week.
23 I credit Sullivan on this. His testimony comported with statements in his affidavit, GC Exh.
11, and Tollison testified that he did not remember and therefore did not controvert Sullivan’s
version.
24 GC Exh. 3.
25 Tr. 320.
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with Alexander about the discrepancy—testimony directly contradicted by Sullivan’s
affidavit and by Tollison’s, account that he witnessed Sullivan and Alexander discuss
the electronic time clock in Sullivan’s office. In light of Sullivan’s impeachment on this
point and his general unreliability, I credit all of Alexander’s testimony regarding this
conversation and find that Sullivan promised to fix the discrepancy. Prior to Alexander’s
termination meeting, no one from management ever again mentioned the matter to
Alexander.
Because Sullivan and Becksted offered different accounts of DeShields’
involvement in the investigation of Alexander’s time records, and the Respondent did
not call DeShields as a witness, I am not satisfied that the Respondent provided a full
and accurate account of what subsequently transpired. Suffice to say, Sullivan, on
February 15, corrected the timesheet by striking out the 7 a.m. start time and manually
writing in 7:38 a.m. above it, and correspondingly adjusted the total hours for the day
from 8 hours to 7.12 hours. These corrections were made before Alexander’s timesheet
for the week went to payroll, and he was in fact paid for only the actual hours that he
worked.
Becksted testified that after she confirmed the discrepancy with DeShields, she
brought the matter to Evola’s attention. However, she did not describe the conversation
on the record, and Evola offered no testimony thereon.
I credit the following testimony of Alexander over Sullivan’s denial. On two
earlier occasions, both about 3 months before Alexander’s termination, Sullivan
corrected his timesheets. In both instances, they concerned Alexander’s inadvertent
failure to put in dates. I note that Sullivan admitted to correcting other employees’
timesheets on occasions when the electronic time system was not working properly.
Alexander’s Discharge on February 19, 2010
Becksted conducted a termination meeting with Alexander on the afternoon of
February 19, in Fuller’s office. Fuller and DeShields were also present. Fuller testified
that he played no part in the decision to discharge Alexander and attended solely as a
witness. Becksted began by describing the time discrepancy on February 9 between
the 7 a.m. self-reported start time and the 7:38 a.m. start time shown by the electronic
timecard. Alexander replied that he had discussed the problem with Sullivan, who had
promised to fix it. Fuller interjected that he had no knowledge of that. Becksted stated
that Alexander had violated company policy and was immediately terminated for
falsifying his timesheet.
Kingsmore’s Suspension on February 17
Before coming to LSP, Kingsmore was employed at BMW from August 9, 1999 to
May 21, 2007.26 His employment application for LSP was blank as far as previous
employment,27 and he did not fill out a new application when Gestamp assumed control

26 See GC Exh. 5.
27 R. Exh. 12.
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of the facility.
In August 2009 (the exact date is unknown), while the plant was still under LSP
ownership, both Kingsmore and Supervisor Morris were scheduled to take a tour of
BMW’s Geer, South Carolina plant. Morris was allowed entry, but Kingsmore was
denied entrance. BMW representatives gave neither him nor Morris any reason for this
bar. Morris proceeded to go on with the tour, which lasted 2 to 3 hours. Afterward, he
returned to the LSP plant and informed both his own supervisor, Axel Zimmerman, and
Kingsmore’s supervisor, Keller, that Kingsmore was denied access. Immediately after
being barred, Kingsmore called Keller from the BMW parking lot and informed him of
what had occurred. When Becksted spoke with Keller in February, he confirmed that
Kingsmore had called him in August 2009 and stated that he had been denied access
into the BMW plant.
Kingsmore testified, in considerable detail, that as soon as he returned to LSP
that day, he went into Evola’s office and told Evola that guards at BMW had refused to
allow him to enter the plant. Per Kingsmore, “I went to Carmen’s office, and I said they
wouldn’t let me in. And he said I don’t know what I was thinking. He said I knew they
wasn’t [sic] going to let you in; you used to work there. I said yes, sir. He said, well, I’m
sorry I wasted your time. I said, no, you didn’t waste my time. I said I’ve been on the
clock.”28 Kingsmore’s account of informing Evola remained substantively consistent
throughout his testimony.
Evola directly contradicted this account, testifying both that he and Kingsmore
never had any conversations about Kingsmore’s inability to enter BMW and that in
August 2009, he had no knowledge that Kingsmore was barred from BMW. In this
regard, Becksted testified that Evola approached her in early February and told her that
he had “just” learned that Kingsmore had been barred from BMW.29 She could not
recall what he said about who informed him. The Respondent’s failure to have Evola
testify about how and when he learned that Kingsmore was barred from BMW (or
concerning his conversation with Becksted) raises the suspicion that Evola’s testimony
on when he learned of the bar would have been unfavorable to the Respondent’s case.
I therefore draw an adverse inference against the Respondent on the matter and credit
Kingsmore’s testimony that he told Evola in August 2009.
On September 2, 2009, Kingsmore applied internally for promotion to a quality
supervisor position, for which Becksted and Weckerman interviewed him on September
29, 2009. In the course thereof, Becksted asked why he had left BMW. He replied that
he was tired of the long commute and being away from his family. She did not
specifically ask if his separation from BMW was voluntary or involuntary, and nothing in
either her interview summary or Kingsmore’s internal job application addresses this
point.30 Kingsmore’s ability to access the BMW plant was never mentioned. Kingsmore
did not receive the promotion.

28 Tr. 472.
29 Tr. 924.
30 See R. Exh. 14.
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Becksted testified as follows. In early February, Evola called her into his office
and stated that he had just learned that Kingsmore was banned from BMW. Becksted
was startled because she believed that Kingsmore had told her in the interview that he
left BMW voluntarily, and she found it inconsistent that someone could both leave BMW
voluntarily and be banned from the plant. She was also concerned because Gestamp
employees need to be able to go to BMW, as Gestamp’s only client. She expressed
those concerns to Evola, who instructed her to investigate fully the reasons why
Kingsmore left BMW and why he was banned from their premises. Next, she called
Keller, who was in Germany. He told her that Kingsmore advised him of the ban in
August 2009. Becksted then returned to Evola, described her conversation with Keller,
and said that she planned to call Kingsmore into a meeting to ask him face-to-face
whether or not he had left BMW voluntarily and whether or not he was in fact banned.
On February 17, Becksted met with Kingsmore and Weckerman in the latter’s
office. Weckerman played no role in the decision to suspend Kingsmore. In that
meeting, Kingsmore stated that he left BMW on a voluntary basis because of the long
drive and his desire to spend more time with his family. When Becksted said that she
learned Kingsmore was barred from BMW, he did not deny it. She stated that she
would need additional information about why he was banned from BMW’s premises and
asked him to sign a release form authorizing her to get information directly from BMW.31
Kingsmore hesitated, stating that he did not understand what the document was. He
asked what would happen if he did not sign, and she replied that he could be
terminated. Kingsmore signed the release and asked for a copy.
Becksted left to confer with Evola. They agreed that Kingsmore should not
receive a copy of the release because it was an internal company document. She
returned to Weckerman’s office and so informed Kingsmore. She told him that he was
suspended with pay, effective immediately, and that during his suspension he was not
allowed to enter the Respondent’s premises or communicate with other employees
because it would interfere with the investigation.
Weckerman went with Kingsmore to retrieve his personal items and then to the
front door to exit the facility. At the breezeway near the exit, they engaged in a brief
conversation. Kingsmore stated that he believed his suspension was due to the Union.
Weckerman replied that he did not know about that.
Kingsmore’s Discharge on February 24
On the day of the suspension, February 17, Becksted sent the release to BMW,
to which she received no response. As a result, within 2 business days following
Kingsmore’s suspension, she called BMW. A man there stated that he would not give
her any information regarding Kingsmore’s employment at BMW. By her own
admission, the conversation lasted mere “seconds.”32 Becksted testified, incredibly, that
she could not recall if she made any kind of notation of the phone call, and she could

31 GC Exh. 4.
32 Tr. 945.
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not provide a specific time and date or the name and title of this BMW employee.33 If a
memorandum was in fact made, it was not offered in evidence.
Various witnesses of the Respondent testified to the need of Gestamp
employees to visit the BMW plant, the Respondent’s sole customer at times relevant.
They take tours of the BMW plant and may be required to go there when BMW requests
assistance or when the two on-site Gestamp employees are off. Becksted testified that
quality department supervisors visit the BMW plant on a regular basis, consistent with
Holt’s testimony that he has gone there three or four times. Regarding what his reaction
would be on learning that an employee was refused access to the BMW plant, Evola
stated, “I’m 100 percent certain there’s no way as a leader in the company that an
associate could come to me with such dramatic news and me not take any action
whatsoever.”34 However, the Respondent’s counsel represented that Kingsmore’s
inability to enter the BMW plant per se played no part in his suspension or discharge,
and that “misrepresentation and failure to provide information” were the sole bases for
his discipline.35
On the morning of Monday, February 22, Becksted called Kingsmore and stated
that she had been unable to get any detailed information from BMW on why he had left.
She advised Kingsmore that he was now responsible for getting information from BMW
that would clearly state why, by 5 p.m. on Wednesday, February 24. Kingsmore replied
that he would do his best. I credit his unrebutted testimony that he denied her
suggestions that he had been fired from BMW.
Kingsmore called BMW HR. Several representatives told him that BMW would
provide only a verification of the dates of his employment. Upon receiving a letter
stating such on February 24, Kingsmore faxed it to Becksted at 3:53 p.m., along with an
explanation that this was the only information he could obtain.36 After receiving the fax
that afternoon, Becksted called Kingsmore. She said that this was not the information
she had requested and that he was terminated.
At trial, I admitted, over the Respondent’s objections, two documents going to the
issue of Kingsmore’s separation from BMW. The first is General Counsel’s Exhibit 9, on
its face a BMW document dated May 21, 2007 stating that Kingsmore voluntarily
resigned his employment. The second is General Counsel’s Exhibit 15, a December 10
e-mail to the Region from Steve Warren, BMW’s attorney, confirming that a document of
resignation signed by Kingsmore is contained in BMW’s files. Because neither of these
documents were available to any of the parties at the time of Kingsmore’s suspension or
termination, they cannot have a bearing on deciding the Respondent’s motivation for
those actions. Whether Kingsmore’s separation from BMW was a resignation,
resignation in lieu of discharge, or a discharge is not an issue before me.

33 More precisely, she professed not to recall if she made any kind of record thereof (Tr.
936), testimony that is even more incredible and damaging to her credibility.
34 Tr. 732.
35 Tr. 766.
36 GC Exhs. 5 & 6.
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Other Instances of Discipline by the Respondent
The Respondent presented testimony regarding the discharge of two other
employees for first offenses. One was Ron Gist, who was terminated within a month
before trial, for failing to report a forklift accident in accordance with Gestamp’s accident
policy. Becksted terminated him immediately after she conducted a full investigation,
which found him responsible, and he admitted culpability. The second was William
Gregory, for sanding words into vehicle sides, considered destruction of company
property. A department supervisor brought the matter to Becksted’s attention. After an
investigation and Gregory’s admission, Becksted immediately terminated him. The
Respondent provided no date for his discharge.
The Respondent also submitted former employee Joseph Hicks’ timesheet for
the week of April 12, and a determination by the South Carolina Employment Security
Commission that he had been allowed to resign in lieu of discharge.37 However, the
Respondent failed to elicit any testimony regarding the circumstances of his separation,
and Becksted could not say when it occurred. I am therefore unable to ascertain how
similar or dissimilar his situation was vis-à-vis Alexander’s.
Analysis and Conclusions
The General Counsel alleges that the Respondent discharged Alexander and
suspended and discharged Kingsmore in violation of Section 8(a)(3) and (1) of the Act.
The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, the General Counsel must make a prima facie showing
sufficient to support an inference that the employee’s protected conduct motivated an
employer’s adverse action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protected conduct, the employer
knew or suspected the employee engaged in such conduct, the employer harbored
animus, and the employer took action because of this animus.
Under the Wright Line framework, if the General Counsel makes a prima facie
case of discriminatory conduct, it meets its initial burden to persuade, by a
preponderance of the evidence, that protected activity was a motivating factor in the
employer’s action. Once this is established, the burden of persuasion shifts to the
employer to show that it would have taken the same adverse action even in absence of
the protected activity. NLRB v. Transportation Corp., 462 U.S. 393, 399, 403 (1983);
Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Manno Electric, 321 NLRB
278, 280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curiam). To meet this
burden, “an employer cannot simply present a legitimate reason for its action but must
persuade by a preponderance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano Painting, 332 NLRB
1363, 1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).

37 R. Exhs. 17 & 18.
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If the employer’s proffered defenses are found to be a pretext, i.e., the reasons
given for the employer’s actions are either false or not, in fact, relied on, the employer
fails by definition to show that it would have taken the same action for those reasons,
and there is no need to perform the second part of the Wright Line analysis. On the
other hand, further analysis is required if the defense is one of “dual motivation,” that is,
the employer defends that, even if an invalid reason might have played some part in the
employer’s motivation, the employer would have taken the same action against the
employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
The initial question is whether Alexander’s and Kingsmore’s actions qualify as
protected, concerted activity under Section 7 of the Act. I find that the General Counsel
has established this element inasmuch as Alexander and Kingsmore actively
participated in a union–organizing campaign. More specifically, Kingsmore initiated
contact with the Union, he and Alexander were on the organizing committee that Rigsby
formed, and they attended several union–sponsored meetings for employees at which
Alexander was vocal. In addition, both solicited support for the Union from other
employees after work, on breaks, and during and after lunch times.
Secondly, I conclude that Respondent knew of their union activities—several
members of management/supervision had direct knowledge, as follows. Alexander
communicated to Supervisor Morris that “his coworkers were harassing him about this
“union stuff,’” and Supervisor Fink stated that he had heard of Alexander’s involvement
in seeking to bring in the Union. Kingsmore told Supervisors Fink and Sullivan that he
was trying to get the Union in.
It is well-established that a supervisor’s knowledge of union activities is imputed
to the employer unless credited testimony establishes the contrary. State Plaza, Inc.,
347 NLRB 755, 756–757 (2006); Dobbs International Services, 335 NLRB 972, 973
(2001); Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB 82, 82 (1983).
The Respondent chose not to have Evola testify as to whether he had knowledge
of Alexander or Kingsmore’s union activity at the time of their suspension/terminations,
so there is no credited testimony denying that Morris, Sullivan, or Fink transmitted their
knowledge to Evola. He did testify that he believed Kingsmore when Kingsmore called
and assured him that rumors of Kingsmore’s union activity were untrue.38 However,
even if so, this was not tantamount to testimony that he had no knowledge of
Kingsmore’s union activities at the time Kingsmore was suspended and then
discharged. I further note Evola’s testimony that at the time of this conversation, he had
not heard any rumors about Kingsmore trying to bring in the Union, “other than
discussions with my attorneys.”
The Respondent argues (R. Br. at 22) that none of the “decisionmaking
supervisors” involved in the decision to discharge Alexander or the decisions to
suspend and discharge Kingsmore were aware of either’s union activities, and (R. Br. at
28) that Becksted made the decisions.

38 Tr. 735.
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True, the record remains unclear on who made the decisions, but this is because
Evola did not testify whether he did or did not play a role therein and, contrary to the
Respondent’s contention, Becksted did not specifically testify that she made them or
who else did. Inasmuch as Becksted admittedly consulted with Evola on whether to
investigate Kingsmore and, later, whether she should give Kingsmore a copy of the
release he signed, I must doubt whether she would have not also have consulted with
him about the far more drastic measure of discharging employees. Ultimately, the
Respondent bears the responsibility for the insufficiency of the record evidence on who
made the decisions, and I will not reward the Respondent with any favorable inferences.
Assuming arguendo that I accepted the Respondent’s argument that supervisors’
knowledge should not be imputed to Gestamp’s management, the element of
knowledge can be satisfied by reasonable inference. Windsor Convalescent Center of
North Long Beach, 351 NLRB 975, 983 fn. 36 (2007), enfd. in relevant part, 570 F.3d
354 (D.C. Cir. 2009). See also Active Transportation, 296 NLRB 431, 431–432 (1989),
enfd. 924 F.2d 1057 (6th Cir. 1991) (knowledge inferred where, inter alia, three of four
discharged employees engaged in union activities in the presence of employee who
was an informer for the employer); Clark & Wilkins Industries, 290 NLRB 106, 106
(1988), enfd. 887 F.2d 308 (D.C. Cir. 1989), cert. denied 495 U.S. 934 (1990) (imputing
supervisor’s knowledge to employer where supervisor observed organizing campaign in
small shop).
Here, the union campaign clearly created a highly-charged atmosphere that
engendered widespread sentiments among employees, both for and against the Union.
This is best reflected in the threat of physical violence that an employee made against
union supporters at a management–conducted meeting, and the accusations that three
employees leveled against Alexander. In these circumstances, it is reasonable to
believe that other employees reported Alexander’s and Kingsmore’s union activities to
management.
The General Counsel’s final burden under Wright Line is to show that the
Respondent harbored antiunion animus and took discriminatory action because of this
animus.
The only direct evidence of animus is Supervisor Fink’s warning to Kingsmore
that, “You’re gone” if Evola found out that he was trying to unionize the plant.
Nevertheless, inferences of animus and discriminatory motivation can be warranted
under all the circumstances of a case, even in the absence of direct evidence. Fluor
Daniel, Inc., 304 NLRB 970, 970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992); Electronic
Data Systems Corp., 305 NLRB 219, 219 (1991), enfd. in relevant part 985 F.2d 801,
805 (5th Cir. 1993).
The timing of the Respondent’s actions raises a bright red flag, especially as to
Kingsmore. Evola and Supervisors Keller, Morris, and Zimmerman all knew in August
2009 that he was barred from entering BMW’s plant, but no one from management or
supervision again mentioned the subject to Kingsmore until his suspension meeting with
Becksted on February 17. Thus, the Respondent had knowledge of Kingsmore’s ban
from entering BMW’s plant for over 6 months yet took no action whatsoever until only
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weeks after he first engaged in union activities. Alexander, too, was discharged just
weeks after he began engaging in union activities. Adverse action occurring shortly
after an employee has engaged in protected activity raises an inference of unlawful
motive. State Plaza, Inc., above at 756; La Gloria Oil & Gas Co., 337 NLRB 1120
(2002), enfd. 71 Fed. Appx. 441 (5th Cir. 2003).
So does the severity of the discipline that the Respondent imposed in proportion
to the offenses. See Detroit Paneling Systems, Inc., 330 NLRB 1170, 1170 (2000);
KNTV, 319 NLRB 447, 452 (1995). Alexander and Kingsmore were the first instances
of the Respondent immediately discharging an employee for alleged timesheet
falsification or the falsification of prior work history.
The Respondent represents Gist and Gregory as other employees terminated for
first offenses in similar circumstances (R. Br. at 27–28). However, those situations were
distinguishable in that they involved physical damage to company property: Gist was
terminated for failing to report a forklift accident and Gregory for deliberately vandalizing
a vehicle. In contrast, Alexander’s timesheet discrepancy and anything that Kingsmore
said in the interview for a supervisory position resulted in no harm to the Respondent
whatsoever. Thus, Alexander’s error was caught prior to his pay being submitted to
payroll, and he received only the remuneration to which he was entitled for the day in
question. Even crediting Becksted, Kingsmore’s reason for leaving BMW came up as
an issue only as a result of his interview for a promotion that he did not receive. I again
note the Respondent’s counsel’s representation that the Respondent discharged
Kingsmore solely for misrepresentation and failure to provide information, not because
he was barred from BMW. Additionally, both Gist and Gregory admitted to the
misconduct, a factor not present here. Significantly, the Respondent did not have
affirmative evidence that either Alexander deliberately falsified his timecard or
Kingsmore his employment history but instead chose to paint their conduct in the worst
light possible.
This brings up another factor that leads to the inference of animus and
constitutes evidence of discriminatory intent against Alexander and Kingsmore: the
Respondent’s failure to conduct full and fair investigations. See Hewlett Packard Co.,
341 NLRB 492, 492 fn. 2 (2004); Firestone Textile Co., 203 NLRB 89, 95 (1973).
Becksted never spoke to Alexander at all prior to his discharge. By her own
testimony, she simply looked at the paperwork, decided that Alexander had deliberately
lied on his timesheet, and terminated him. Both employees and management were well
aware that an electronic system was in place to monitor attendance, and that
supervisors compared self–prepared and electronic records, yet Becksted presumably
concluded that Alexander deliberately sought to cheat the Respondent out of 38
minutes of work time without first inquiring as to whether he had an alternate
explanation for the discrepancy. The Respondent’s willingness to discharge Alexander
without even interviewing him or affording him an opportunity to defend against the
serious accusation of deliberate falsification is evidence that the Respondent’s true
motivation was Alexander’s protected activities. See Joseph Chevrolet, Inc., 343 NLRB
7, 8 (2004); Tubular Corp. of America, 3347 NLRB 99, 99 (2001).
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Turning to Kingsmore, Becksted, an experienced and trained HR manager,
allegedly could not recall if she even documented the conversation she had with a BMW
HR representative concerning Kingsmore’s employment, and the Respondent produced
nothing that memorialized it. This, along with her apparent satisfaction with a
conversation that lasted mere seconds, strongly suggests that her investigation lacked
diligence and a genuine desire to ascertain the truth. This conclusion is bolstered by
the very short timeframe that she gave Kingsmore to obtain documentary evidence of
his separation from BMW, and the absence of any showing of why the Respondent
needed it so immediately.
Still another basis for inferring animus is that the Respondent discharged
Alexander and Kingsmore, rather than imposing lesser penalties as per the
Respondent’s progressive discipline system. An employer’s failure to follow such a
system is frequently indicative of a hidden motive for the imposition of more severe
discipline. Fayette Cotton Mill, 245 NLRB 428 (1978); Keller Mfg. Co., 237 NLRB 713,
713–714 (1978). This proposition appears particularly apropos to the instant matter
because both were employees of long tenure, Alexander had never previously been
disciplined for any reason, and the Respondent relied on nothing in Kingsmore’s prior
disciplinary record in making the decision to terminate him.
Finally, animus can be inferred from the Respondent’s shifting rationales for
disciplining Kingsmore. Becksted testified that Evola asked her to investigate both why
Kingsmore left BMW and why he was banned from entering BMW’s premises.
However, the Respondent provided no evidence that it ever specifically asked
Kingsmore why he was not allowed into BMW’s plant, or attempted to obtain such
information from BMW. In Kingsmore’s employee separation checklist, three reasons
are stated for his termination: “Falsification of prior work history, not supplying proper
documentation from prior employer as requested and not supplying information for
reason of BMW’s refusal to allow employee on property.” 39 Although the Respondent
elicited considerable testimony on the importance of an employee’s need for entry into
the BMW plant, the Respondent’s counsel expressly represented that Kingsmore’s bar
from entering BMW was not one of the reasons for his discharge.
Such shifting of rationales is evidence that the Respondent’s proffered reasons
for discharging Kingsmore are pretextual. See Approved Electric Corp., 356 NLRB No.
45 (2010) (citing City Stationery, Inc., 340 NLRB 523, 524 (2003) (nondiscriminatory
reasons for discharge offered at the hearing were found to be pretextual where different
from those set forth in the discharge letters); GATX Logistics, Inc., 323 NLRB 328, 335
(1997) (“Where . . . an employer provides inconsistent or shifting reasons for its actions,
a reasonable inference can be drawn that the reasons proffered are mere pretexts
designed to mask an unlawful motive.”).
Considering all of the above factors, I conclude that the General Counsel has
established the last elements, of animus and of actions based thereon, and thus has
met his initial burden of persuasion under Wright Line.

39 GC Exh. 7.
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I now turn to the Respondent’s burden under Wright Line to show that it would
have taken the same action in the absence of that protected activity. The Respondent
has represented that Alexander’s timesheet falsification was the sole reason for his
discharge and that Kingsmore’s misrepresentation and failure to provide information of
prior work history were the sole bases for his suspension and discharge. Based on the
same factors that have led me to find inferred animus, I conclude that these proffered
reasons were mere pretexts and that antiunion animus motivated the Respondent’s
actions. Accordingly, no further analysis of the Respondent’s defenses is necessary for,
as the Board stated in Rood Trucking Co., 342 NLRB 895, 898 (2004):
A finding of pretext defeats any attempt by the Respondent to show that it would
have discharged the discriminatees absent their union activities. This is because
where ‘the evidence establishes that the reasons given for the Respondent’s
actions are pretextual—that is, either false or not in fact relied upon—the
Respondent fails by definition to show that it would have taken the same action
for those reasons, absent the protected conduct, and thus there is no need to
perform the second part of the Wright Line analysis.” Golden State Foods Corp.,
340 NLRB 382, 385 (2003). . . .
See also SPO Good-Nite Inn, LLC, above.
Accordingly, I conclude that the Respondent violated Section 8(a)(3) and (1) of
the Act by discharging Alexander and by suspending and then discharging Kingsmore.
Alleged 8(a)(1) Violations
A statement from an employer is an unlawful threat under Section 8(a)(1) if it
interferes with, restrains, or coerces employees in the exercise of their Section 7 rights.
29 U.S.C. § 158(a).
The General Counsel contends that the Respondent violated Section 8(a)(1) in
about early February, when Supervisor Fink unlawfully threatened Kingsmore with
discharge for his union activities, and separately on February 11, when Fink unlawfully
interrogated Alexander concerning his union activities.
In approximately early February, Kingsmore told Fink that he was going to try to
unionize the plant and Fink warned him to be careful because if Evola found out,
“You’re gone.”
Clearly, Kingsmore initiated the conversation and viewed Fink as a confidant due
to Fink’s role in protecting him from Keller’s aggressiveness. Nevertheless, the level of
trust between them is not pivotal in assessing Fink’s statement. Rather, “[T]he Board
does not consider subjective reactions, but rather whether, under all the circumstances,
a respondent’s remarks reasonably tended to restrain, coerce, or interfere with
employees’ rights guaranteed under the Act.” Sage Dining Service, 312 NLRB 845, 846
(1993). Fink’s statement reasonably conveyed the message that Kingsmore’s protected
activities might harm his employment and thus reasonably could have caused
Kingsmore to fear reprisals for engaging in protected activities.
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The Respondent references (R. Br. at 41) Rogers Electric, Inc., 346 NLRB 508,
509 (2006), in arguing that Fink’s statement was merely a matter of opinion and
therefore protected by the free speech provisions of Section 8(c) as an “intemperate
expression of personal opinion.” Such an argument mischaracterizes the type of
expressions to which the Rogers Electric holding applies. Under that decision and
related precedent, Section 8(c) protects as free speech an employer’s and its agents’
flip and intemperate statements disparaging a union as futile, violent, or of other
impugned character. See, e.g., Children’s Center for Behavioral Development, 347
NLRB 35, 35 (2006) (if unaccompanied by threats or promises of benefit, employer may
“criticize, disparage, or denigrate a union”); Miller Industries Towing Equipment, Inc.,
342 NLRB 1074, 1076 (2004) (employer may offer his “perspective” against union so
long as it is not accompanied by threats). In contrast, Fink’s statement predicted
retaliation against Kingsmore if management learned of his protected activities. Thus,
the Rogers Electric holding is inapposite.
Accordingly, I conclude that Fink’s statement was an unlawful threat within the
meaning of Section 8(a)(1).
On February 11, Fink approached Alexander in the tool crib and made the
comment, “I didn’t know you were one of the ones who’s trying to bring the Union in.”
Asking an employee about his or her knowledge of union activities may, depending on
the totality of the circumstances, reasonably tend to interfere with, restrain, or coerce
employees in the exercise of Section 7 rights. Blue Flash Express, 109 NLRB 591,
592–595 (1954); see also Michigan Roads Maintenance Co., 344 NLRB 617 (2005),
citing Donaldson Bros. Ready Mix, 341 NLRB 958, 959 (2004). Circumstances
considered in evaluating the tendency to interfere include the (1) background, (2) the
nature of the information sought, (3) the identity of the questioner, and (4) the place and
method of the interrogation. Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985);
Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984).
Both Fink and Kingsmore testified to Fink’s role in the workplace as something of
a mediator between rank-and-file employees and their foreign-speaking managers, in
that employees confided to Fink that they were being mistreated. Although a
supervisor, Fink was not a senior manager within the company hierarchy, and his
supervisory authority was limited to off-site employees. As such, his position and
reputation within the organization did not tend be specially coercive or threatening.
Rather than single Alexander out or call him to a management office, Fink spoke
at Alexander’s workstation and in the presence of another employee. Fink made but a
single statement and did not pursue the issue when Alexander did not respond. His
words contained no implication that employees would be adversely affected for their
support of the Union, and they were presented as a declaration of fact rather than
posed as a question.
In the totality of circumstances, I conclude that Fink’s statement regarding
Alexander’s union activities did not amount to coercive interrogation or otherwise
reasonably tend to interfere with, restrain, or coerce employees in the exercise of their
Section 7 rights. Accordingly, I find no merit to this allegation.
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General Counsel’s Motion to Amend Complaint
The General Counsel (GC Br. at 11) moves to amend the complaint to add the
allegation that on February 17, Weckerman unlawfully threatened Kingsmore in violation
of Section 8(a)(1). The motion is moot in light of my credibility resolution favoring
Weckerman’s version of what he said over Kingsmore’s account, with the resulting
finding that Weckerman said nothing about the Union to Kingsmore that day.
Accordingly, I need not address the question of whether Section 10(b) bars such an
amendment as untimely.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. By discharging Reggie Alexander and by suspending and discharging David
Kingsmore, the Respondent has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act.
3. By threatening an employee with discharge for engaging in activities on behalf
of the United Steelworkers, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated
Section 8(a)(1) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent having discriminatorily discharged employees, it must offer
them reinstatement and make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest compounded daily, Kentucky River Medical Center, 356
NLRB No. 8 (2010), with an applicable rate of interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended40
ORDER

40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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The Respondent, Gestamp South Carolina, LLC, Union, South Carolina, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminating against any employee
for engaging in activities on behalf of the United Steelworkers (the Union) or any other
labor organization.
(b) Threatening any employee with discharge or any other adverse action for
engaging in activities on behalf of the Union or any other labor organization.
(c) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Within 14 days from the date of the Board’s Order, offer Reggie Alexander
and David Kingsmore full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(b) Make Reggie Alexander and David Kingsmore whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them in the manner
set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Reggie Alexander, and within 3 days thereafter
notify him in writing that this has been done and that the discharge will not be used
against him in any way.
(d) Within 14 days from the date of the Board’s Order, remove from its files any
references to the unlawful suspension and discharge of David Kingsmore, and within 3
days thereafter notify him in writing that this has been done and that the suspension and
discharge will not be used against him in any way.
(e) 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.
(f) Within 14 days after service by the Region, post at its facility in Union, South
Carolina, copies of the attached notice marked “Appendix.”41 Copies of the notice, on
forms provided by the Regional Director for Region 11, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent

41 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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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 February 1, 2010.
(g) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. March 2, 2011
____________________
Ira Sandron
Administrative Law Judge
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Union, SC
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 suspend, discharge, or otherwise discriminate against you because you
engage in activities in support of the United Steelworkers (the Union) or any other labor
organization.
WE WILL NOT threaten you with discharge or any other adverse action because you
engage in activities in support of the Union or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order, offer Reggie Alexander
and David Kingsmore full reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make Reggie Alexander and David Kingsmore whole for any loss of earnings
and other benefits suffered as a result of our discrimination against them, in the manner
set forth in the remedy section of the decision.
WE WILL remove from our files any reference to our unlawful discharge of Reggie
Alexander, and within 3 days thereafter notify him in writing that this has been done and
that the discharge will not be used against him in any way.
WE WILL remove from our files any reference to our unlawful suspension and discharge
of David Kingsmore, and within 3 days thereafter notify him in writing that this has been
done and that the suspension and discharge will not be used against him in any way.
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GESTAMP SOUTH CAROLINA, 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.
4035 University Parkway, Republic Square, Suite 200
Winston-Salem, North Carolina 27106-3323
Hours: 8 a.m. to 4:30 p.m.
336-631-5201.
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, 336-631-5244.