Goldens Foundry & Machine Co.

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1176 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1176
Goldens Foundry & Machine Company and Anthony
D. Jones and Darwin L. Lipscomb. Cases 10–
CA–32913 and 10–CA–33376
November 28, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER,
AND WALSH
On March 22, 2002, Administrative Law Judge Wil-
liam N. Cates issued the attached bench decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the bench decision1 and the
record in light of the exceptions2 and brief and has de-
cided to affirm the judge’s rulings, findings,3 and conclu-
sions and to adopt the recommended Order.
The judge found that the Respondent violated Section
8(a)(1) of the Act by threatening employee Anthony
Jones and violated Section 8(a)(3) and (1) by discharging
Jones. For the reasons stated by the judge, we find the
unlawful threat. For the reasons stated below, we find
that the Respondent unlawfully discharged Jones.
Facts
During the week of February 5–9, 2001,4 Jones, a pro-
bationary employee at the Respondent’s iron forging
plant in Columbus, Georgia, had been working the first

1 Although the determination whether to issue a bench decision is
within the trial judge’s informed discretion, the Board has provided
guidance concerning the kinds of cases in which a bench decision may
be appropriate. The Division of Judges Bench Book, Sec. 12-620,
states that “[T]he cases in which bench decisions are rendered should
be only those that ‘turn on a very straightforward credibility issue;
cases involving one day [trials]; cases involving a well settled legal
issue when there is no dispute [over] the facts; short single issue cases;
or cases in which a party defaults by not appearing at the [trials] . . .
[I]n more complex cases, including cases with lengthy records, [bench
decisions] would likely not be appropriate.’” Proposed Board Guide-
lines on Bench Decisions, 59 Fed. Reg. 65, 942–965, 943 (Dec. 22,
1994), adopted as a final rule, 61 Fed. Reg. 6941 (1996), codified as 29
CFR § 102.35. Because this case was relatively complex, involved a
number of issues, many witnesses, and significant dispute over the
facts, it is not of the type that was envisioned to be handled through a
bench decision.
2 The judge found that the General Counsel failed to prove that the
Respondent unilaterally changed its employees’ clock-in time and
thereby failed to bargain with the Union in violation of Sec. 8(a)(5).
No party excepted to the judge’s dismissal of this 8(a)(5) allegation.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 All dates hereinafter are 2001 unless otherwise indicated.
shift to fill in for a coworker, Walter Cobb, who was off
work because of illness. On Friday, February 9, Jones
spoke with his supervisor, John Toland, about when
Cobb would be returning to work. The judge credited
Jones’ testimony that Toland informed Jones that Cobb
would be returning to work the following Monday, Feb-
ruary 12, and instructed Jones to return to his regular
second-shift schedule that day.
Jones came to work on Monday at approximately 2
p.m. to start the second shift, but found that Toland was
angry with him for coming to work “late.” They spoke
alone in the spin casting area of the plant, and no one
overheard their conversation. The judge credited Jones
who testified that Toland “cussed” at him and told him to
go home and return the next day at 5 a.m. for the start of
the first shift. Jones did as he was told and left work
early without finishing his shift that day.
Jones reported for work on Tuesday and first spoke
with Union President Darwin Lipscomb and Union Vice
President Kerry Hammond about the prior day’s events.
Lipscomb, Hammond, and Jones then met with Toland
and another supervisor, Travis Wilson, to discuss the
matter. An angry exchange ensued, during which Toland
denied telling Jones to return to the second shift on Mon-
day, and denied sending Jones home early on Monday.
Crediting Jones, the judge found that Toland stated that
he was going to push the matter to the fullest extent be-
cause Jones had involved the Union. The judge found,
and we agree, that this threat by Toland violated Section
8(a)(1) of the Act.
After their meeting with Jones, Toland and Lipscomb
separately contacted Judith Giddings, the Respondent’s
human resources manager. In a telephone call, Toland
told Giddings that he had heard in a meeting that Jones
had not worked his entire shift on Monday. Toland
asked Giddings how long Jones had worked Monday.
Lipscomb asked Giddings to set up a meeting to discuss
Toland’s treatment of Jones. Giddings set up a meeting
for the following day, February 14.
The details of the February 14 meeting with Giddings
are sketchy. Jones described what had occurred on Feb-
ruary 12, explaining that he thought he was supposed to
work the second shift that Monday. There is no evidence
in the record to indicate what Toland said at the meeting.
However, during the meeting, Giddings directed Will
Frost, a supervisor, to come to the meeting so Giddings
could “ask him if Toland had sent Jones home,” and
Frost responded that he did not know anything about it.
At another point in the meeting, Giddings interrupted the
discussion to hold a brief, private caucus with Toland
and Wilson. According to Giddings’ testimony, she and
the supervisors talked about “whether or not Anthony
340 NLRB No. 140
GOLDEN FOUNDRY & MACHINE CO. 1177
[Jones] left work authorized or not on Monday.” Follow-
ing this caucus, Giddings informed Jones that he was
suspended pending further investigation.5 It is undis-
puted that no one at the meeting told Giddings about To-
land’s prior unlawful threat directed at Jones.
Giddings testified that Jones was terminated on Friday,
February 16, for not being available for scheduled work
hours and walking off the job. Giddings explained her
reasons as follows:
I made that decision because, two-fold, he [Jones] did
not—well, we really hadn’t decided to do anything un-
til he walked off the job. We weren’t going to take any
action. He had walked off the job. It was determined
that he had definitely walked off the job that afternoon.
It also was determined that there could have been per-
haps that he thought he was suppose[d] to change
shifts. So, we were going to give him the benefit of the
doubt that he thought he changed shifts that day. Then,
when he walked off the job and we did determine that
he didn’t notify anybody that he was leaving that day,
he just left and that that job was not complete that day,
that that was the deciding factor to go ahead and termi-
nate.
Judge’s Decision
The judge found that the General Counsel had estab-
lished his initial burden of proof under Wright Line.6 We
agree with the judge that the General Counsel established
protected activity by Jones, employer knowledge of
Jones’ protected activity, and the timing of Jones’ dis-
charge in relation to his protected activity. Jones en-
gaged in protected activity by having the Union pursue a
grievance against Toland; both Toland and Giddings
knew about the Union’s involvement in Jones’ grievance,
and the discharge of Jones occurred shortly thereafter.
Regarding the element of animus, the judge found that
there was evidence of antiunion animus on the part of
Toland based on the unlawful threat he made on Febru-
ary 13 regarding pushing the issue to the fullest extent
because Jones had involved the Union. Significantly,
however, the judge found that there was no evidence of
antiunion animus on the part of Giddings, the decision-
maker, and that she made her decision to discharge Jones
without knowledge of the illegal threat made by Toland.
After finding that Giddings had acted without animus,
the judge reviewed whether the antiunion animus dem-
onstrated by Toland should be imputed to the actions of

5 The judge incorrectly states that Jones was suspended on February
13.
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
the “innocent” decisionmaker Giddings. The judge
found that after Jones involved the Union, Toland de-
cided to push the issue further, and that he continued to
pursue it to such an extent that it must be concluded that
the matter would have never been brought to Giddings’
attention were it not for Toland pushing it. Based on this
conclusion, the judge imputed Toland’s animus to Gid-
dings and found the violation of the Act.
Analysis
The Respondent contends that the judge erred in find-
ing that the General Counsel met his initial burden of
establishing that Jones’ union activity was a motivating
factor in his discharge. The Respondent argues: (1) there
is no evidence of Toland “push[ing]” the matter for fur-
ther disciplinary review and (2) any antiunion animus
expressed by Toland should not be imputed to Giddings.
We find no merit in either argument.
Although it was Lipscomb rather than Toland who
contacted Giddings and arranged the February 14 meet-
ing, Toland had already brought the matter to Giddings’
attention during his February 13 telephone call. Implicit
in Toland’s statements to Giddings was not only that
Jones had failed to obtain permission from Toland to
leave his shift early on Monday, but also that Toland had
been completely unaware that Jones had not worked his
entire shift on Monday. This version of what transpired
on Monday was false, as Toland had ordered Jones to go
home when he arrived at the start of the second shift on
Monday. As revealed by Giddings’ testimony described
above, the February 14 meeting focused on Toland’s
version.
It is well established that if a supervisor provides a
false report that leads to a discharge, that supervisor’s
unlawful motivation is imputable to the employer, even
if the official who actually makes the discharge determi-
nation is unaware of the supervisor’s animus. See, e.g.,
JMC Transport, Inc. v. NLRB, 776 F.2d 612, 619 (6th
Cir. 1985); Springfield Air Center, 311 NLRB 1151
(1993). See Grand Rapids Die Casting Corp. v. NLRB,
831 F.2d 112, 117–118 (6th Cir. 1987); and Boston Mu-
tual Life Insurance Co. v. NLRB, 692 F.2d 169, 171 (1st
Cir. 1982). In this case, Toland’s unlawful motivation
must be imputed to Giddings because were it not for the
fact that Toland brought Jones’ purported misconduct on
February 12 to Giddings’s attention, Jones would not
have been discharged. Giddings’ good-faith belief7 in
what Toland falsely told her does not insulate the Re-
spondent from the consequences of its action in discharg-
ing Jones in reliance thereon. Thus, we agree that the
7 Without knowledge of Toland’s unlawful threat to Jones, Giddings
had no reason to question Toland’s motive or credibility in this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1178
General Counsel met his initial burden of proof of
unlawful discharge under Wright Line.
We further agree that the Respondent failed to meet its
Wright Line burden of establishing that it would have
discharged Jones even absent his protected activity.
Based on the credited evidence, Toland acted improperly
and sent Jones home on February 12, and Toland had no
intention of pursuing the matter after February 12. But,
as found by the judge, Toland changed his mind the next
day, when he was confronted by Jones’ protected activ-
ity. In the meeting with Jones and the two union officials
on February 13, Toland lied when he denied sending
Jones home. Toland’s lie—the “deciding factor” for
Giddings’ decision to fire Jones—arose and was main-
tained due to Jones’ protected union activity. Thus, the
Respondent failed to show that it would have discharged
Jones absent his action in getting the Union involved.
Accordingly, we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by discharging
Jones.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Goldens Foundry & Machine
Company, Columbus, Georgia, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order.

Elaine Robinson-Fraction, Esq., for the Government.
George G. Boyd Jr., Esq., for the Company.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This is
an interference with employee rights, wrongful discharge, and
unilateral change in employees’ clock-in times case. At the
close of a 2-day trial in Columbus, Georgia, on February 26,
2002, and after oral argument by Government and company
counsel, I issued a Bench Decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations setting
forth findings of fact and conclusions of law. This certification
of that Bench Decision, along with the Order which appears
below, triggers the time for filing an appeal (Exceptions) to the
National Labor Relations Board (the Board).
For the reasons (including credibility determinations) stated
by me on the record at the close of the trial, I found Goldens
Foundry & Machine Company (the Company) violated Section
8(a)(1) of the National Labor Relations Act (the Act) on Febru-
ary 13, 2001, by threatening an employee with unspecified
reprisals because of his union and other concerted protected
activities. I also found the Company violated Section 8(a)(3)
and (1) of the Act, when on February 13, 2001, it suspended
and thereafter on February16, 2001, discharged and refused to
reinstate its employee, Charging Party Anthony Jones (Charg-
ing Party Jones or Jones). I specifically found Jones’s immedi-
ate supervisor told Jones he was advancing Jones’s work situa-
tion through the administrative process that resulted in Jones’s
discharge because Jones sought assistance from the Glass,
Molders, Pottery, Plastics & Allied Workers International Un-
ion, ALF–CIO, CLC (the Union). I concluded Jones’ work
situation would never have been brought to the Company’s
human resources department absent his supervisors unlawfully
motivated reasons for advancing work situation to that depart-
ment. I rejected the Company’s defense that it lawfully dis-
charged Jones, without recourse, as a probationary employee,
pursuant to the parties collective-bargaining agreement. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
The credible evidence established, as the Company asserted,
that it bargained to an agreement with the Union regarding time
sensitive, clock-in procedures at the Company. The Company,
for safety among other reasons, established a new card swipe
turn-stile type clock-in system with one location at the facility
entrance for all employees; whereas the previous system in-
volved multiple clock-in stations in the various departments.
The credited evidence established the parties, around early June
2001, negotiated an agreement that required employees to
clock-in at the entrance turn-stile 3 minutes before their work
shift started in order not to be considered tardy arriving at their
specific department work stations. Even if I had not concluded
the parties arrived at an agreement I would have concluded they
were at impasse and the Company could have implemented its
last offer which was the 3-minute clock-in rule. Accordingly, I
dismissed the complaint allegation the Company on or about
June 1, 2001, unlawfully unilaterally changed employees’
clock-in time.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 212 to 233, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
CONCLUSION OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; that it vio-
lated the Act in the particulars and for the reasons stated at trial
and summarized above and that its violations have affected and,
unless permanent enjoined, will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found the Company has engaged in certain unfair la-
bor practices, I find it must be ordered to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act. The Company having discriminatorily
discharged its employee Anthony Jones I shall recommend he,
within 14 days from the date of this Order, be offered full rein-
statement to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his sen-
iority, or any other rights or privileges previously enjoyed, and

1 I have corrected the transcript pages containing my Bench Deci-
sion and the corrections are as reflected in attached Appendix [C]
[omitted from publication].
GOLDEN FOUNDRY & MACHINE CO. 1179
make him whole for any loss of earnings or other benefits suf-
fered as a result of the discrimination against him with interest.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), and interest shall be com-
puted in accordance with 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 following2
ORDER
The Company, Goldens Foundry & Machine Company, Co-
lumbus, Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging employees because they engage in union or
concerted protected activities for the purpose of collective bar-
gaining or other mutual aid or protection, and in order to dis-
courage employees from engaging in such union or concerted
protected activities.
(b) Threatening employees with unspecified reprisals for en-
gaging in union activities.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this Order offer Anthony
Jones reinstatement to his former position or if his former posi-
tion no longer exists to a substantially equivalent position with-
out prejudice to his seniority or other rights or privileges previ-
ously enjoyed.
(b) Within 14 days of this Order remove from its files any
reference to his unlawful discharge and within 3 days thereafter
notify Anthony Jones in writing this has been done and that his
discharge will not be used against him in any manner.
(c) Preserve and, within 14 days of a request or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Within 14 days after service by the Region, post at Co-
lumbus, Georgia facility copies of the attached notice marked
“Appendix.”3 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by the

2 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 pur-
poses.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since February 13,
2001.
(e) Within 21 days after service by the Region, file with the
Regional Director for Region 10 of the National Labor Rela-
tions Board sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the
Company has taken to comply.
IT IS FURTHER ORDERED that the complaint be, and is,
dismissed insofar as it alleges violations of the Act not specifi-
cally found.
APPENDIX A
This is my Decision in the matter of Goldens Foundry &
Machine Company (herein Company), Case 10–CA–32913 and
10–CA–33376. First, I wish to take this opportunity to thank
counsel for their presentation of the evidence. Both of you are a
credit to the party you represent.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board’s is (herein Board), General coun-
sel (herein Government Counsel) acting through the Regional
Director for Region Ten of the Board, following an investiga-
tion by Region Ten’s is staff.
The Regional Director for Region Ten of the board issued an
Order Consolidating Cases, Amended Consolidated complaint,
and Notice of Hearing (herein Complaint) on January 16, 2002
based upon an unfair labor practice charge filed on February
20, 2001 by Anthony D. Jones, an individual (herein Jones or
Charging Party Jones) in Case 10–CA–32913, and an unfair
labor practice charge filed on October 25, 201, and amended on
December 18, 2001, by Darwin L. Lipscomb, an individual
(herein Lipscomb or Charging Party Lipscomb) in Case 10–
CA–33376.
Certain facts herein are admitted, stipulated, or undisputed. It
is essential that I set forth certain of those facts at this point in
the Decision, which I now do.
It is admitted the Company is a Georgia corporation with an
office and place of business in Columbus, Georgia, where it is
engaged in the manufacture and fabrication of steel. During the
twelve month period preceding the issuance of the Complaint
herein, a representative period, the Company sold and shipped
goods valued in excess of 50 thousand dollars directly to custom-
ers located outside the State of Georgia. The parties admit the
evidence establishes, and I find the Company is an employer en-
gaged in commerce within the meaning of Section 2(2)(6) and (7)
of the National Labor Relations Act, as amended (herein Act).
The parties admit and I find Glass, Molders, Pottery, Plastics
& Allied Workers International Union, AFL–CIO (herein Un-
ion) has been and is a labor organization within the meaning of
Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
The parties admit and I find that Supervisor John Toland
(Supervisor Toland), Supervisor Gilbert Bushman (Supervisor
Bushman), and Human Resources Manager, Judith Giddings
(Human Resources Manager Giddings) are supervisors and
agents of the Company within the meaning of Section 2(11) and
(13) of the Act.
It is admitted that all employees employed by the Company
at its Columbus, Georgia facility, excluding clerical employees,
guards, and supervisors as defined in the Act constitute a unit
appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
It is admitted that at all times material herein, the Union rep-
resented a majority of the employees in the unit I just described
for the purposes of collective bargaining, and by virtue of Sec-
tion 9(a) of the Act, has been and continues to be the exclusive
bargaining representative of all employees in the unit for the pur-
poses of collective bargaining.
It is admitted that at all times material herein the Company
and the Union have been parties to successive Collective Bar-
gaining Agreements, the most recent being effective from Feb-
ruary 1, 2001 to January 31, 2006, encompassing, inter alia, rates
of pay, wages, hours of employment, and other terms and condi-
tions of employment of the employees in the unit I earlier de-
scribed.
The specific Complaint allegations are that on or about Feb-
ruary 13, 2001, the Company, by its Supervisor Toland, threat-
ened its employees with the issuance of a written warning and
unspecified reprisals for engaging in Union activities. It is al-
leged these actions of the Company violated Section 8(a)(1) of the
Act.
It is also alleged that on or about February 13, 2001, the
Company suspended and thereafter terminated its employee,
Anthony D. Jones because he engaged in Union and concerted
protected activities. It is also alleged these actions by the Com-
pany violated Section 8(a)(3) of the Act.
It is further alleged that on or about June 1, 2001, the Com-
pany unilaterally changed employees’ clock in times. It is al-
leged these actions by the Company violate Section 8(a)(5) of
the Act.
The Company denies having violated the Act in any manner
alleged in the Complaint.
The time frame involved in this case essentially runs from
February 5, 2001 until approximately February 16, 2001. That
time frame encompasses the alleged wrongful discharge actions
herein. Certain of the witnesses placed the dates differently
within a day or so. I find that insignificant to the outcome of the
case. Primarily, I’m concerned with a number of meetings that
took place and the action of the individuals, the Union, and the
Company with respect to those meetings.
Jones testified he commenced working for the Company as a
probationary employee on or about October 3, 2000. Jones was
laid off from the Company on or about November 17, 2000 and
re-called on or about January 3, 2001. Jones initially started on
the first shift, which works from approximately 6:00 a.m. until
approximately 2:30 p.m. He later worked the second shift, from
approximately 2:30 p.m. until approximately 10:30 p.m.
It is undisputed Jones’ employment was terminated on or
about February 16, 2001. Jones testified he was told his termi-
nation resulted from his (Jones) making his own schedule and
walking off the job. Jones testified that in early February, he
was assigned to fill in for an employee, Walter Cobb, on first shift,
working from approximately 5:00 a.m. until 2:00 p.m. He stated
he was asked to fill in on first shift from his regular second shift
job for employee Cobb because employee Cobb had health con-
cerns and was off from work. Jones worked a few days for Cobb,
and according to Jones was told by Supervisor John Toland on
Friday, February 9, 2001, that Cobb would be returning to work
the following Monday, February 12, 2001. According to Jones,
he was told to return to work on his regular second shift job start-
ing at approximately 2:00 p.m. on that Monday.
Jones testified he told fellow employees, Terry Phillips and
William Gosha, that he was to return to his regular job on
Monday, February 12, 2001, inasmuch as Cobb was returning
to work. Jones testified this conversation took place on Friday,
February the 9th. Phillips’ testimony supported Jones on this
particular point.
Jones testified he reported for work on second shift on Mon-
day, February 12, 2001, and Supervisor Frost had him perform-
ing gate knocking type work. According to Jones, Supervisor
Toland spoke with him later that morning and cursed him out.
They spoke alone in the spin casting area. Jones testified Toland
was upset about his being at work at that time instead of on first
shift that morning. Jones tried to explain why he was there, but
Toland told Jones he didn’t want to hear h is damn shit, to take his
ass home, and be back the next morning at 5:00 a.m. Jones testi-
fied Supervisor Toland cursed him and send him home.
Jones testified he came to work the next day, Tuesday, Feb-
ruary 13, 2001. Jones spoke at some point with Kerry
Hammond, who advised him to speak with Union President,
Darwin Lipscomb, about his being cursed by Supervisor Toland.
Union President Lipscomb talked with Jones and called for a
meeting with Supervisor Toland. Jones, Hammond, and Toland
met, and at the meeting Lipscomb asked Toland if he had cursed
Jones and sent him home. According to Jones, Toland denied
cursing him or sending him home.
That same day, Tuesday, February 13, 2001, there was a
meeting with Jones, Union President Lipscomb, Union Vice-
President Hammond, Supervisor Toland, and Foundry Superin-
tendent Wilson. According to Jones, there was a lot of scream-
ing and yelling at this meeting, with Superintendent Wilson at-
tempting to calm or quieten the group. According to Jones, To-
land was upset, angry, and loud, and stated he was going to push
the issue because Jones had gone to the Union for help.
Union Vice-President Hammond described the situation as
Toland telling Jones and the others that he was only going to
give a verbal warning to Jones, but because he had gone further
he was going to pursue it because it had gotten to the Union, and
as a result he was going to push it to the fullest extent possible.
Union President Lipscomb described it as Supervisor Toland
telling them since Jones had gone to the Union, he was going to
take him to Human Resources and get him terminated.
Jones testified Union President Lipscomb told Toland he
couldn’t threaten the man’s job, that the decision was up to
Human Resources Manager Judy Giddings. Lipscomb asked
for, but was not provided, the work schedules for the day in
question.
GOLDEN FOUNDRY & MACHINE CO. 1181
Jones returned to work that day and reported for work the
next day at 5:00 a.m., which it appears was Wednesday, Febru-
ary 14, 2001. At about 10:00 a.m., Jones was asked to attend a
meeting in Human Resources Manager Giddings’ office. Those
present at this meeting included Jones, Union President Lipscomb,
Union Vice-President Hammond, Supervisor Toland, Foundry
Superintendent Wilson, Human Resources Manager Giddings,
and for at least part of the meeting, Supervisor Frost. Jones testi-
fied he explained what had happened the two previous days.
According to Union President Lipscomb, Human Resources
Manager Giddings asked Jones why he had come in on the
wrong shift. Lipscomb explained Jones told the group that
Supervisor Toland told him the employee he had been working
for would be back to work and he (Jones) was to go back to his
regular second shift. Lipscomb also testified that Human Re-
sources Manager Giddings said the Company had been having a
lot of problems with Jones’ work performance.
Jones testified there was again a lot of screaming and yelling,
mostly by Toland and Union President Lipscomb, with Gid-
dings, Wilson, and Frost remaining calm. Nothing was arrived
at, and according to Jones the management persons excused
themselves for a caucus and returned with Human Resources
Manager Giddings announcing to Jones that he was suspended
pending further investigation.
Jones testified no one mentioned at this meeting that Toland
had allegedly stated earlier that he was going to push the matter
all the way because of the Union.
Jones testified he was a good employee and had been so told
by his supervisors.
Jones was spoken to by Human Resources Manager Gid-
dings on February 16, 2001, and terminated for establishing his
own schedule and for walking off the job.
Supervisor Toland testified he worked Jones on several dif-
ferent jobs in the department, including those of an iron pourer,
a spin cast worker, and pushing the bull. According to Supervi-
sor Toland employee Walter Cobb experienced chest pains on
February 5, 2001 and went to the doctor. The doctor pulled
Cobb from work for a series of tests. Toland transferred Jones to
the first shift spin cast weight jacket cleaner type work. Toland
testified he told Jones the transfer assignment would be in effect
until further notice.
Toland testified that on Friday, February 9, 2001, Jones
wanted to leave work early to cash an IRS refund check, but
Toland had him work late until 3:30 or 4:00 p.m. that day.
Toland denied telling Jones that Cobb would be returning to
work the following Monday, February 12, 2001. Toland ex-
plained he simply did not know when Cobb might be returning to
work.
On Monday, February 12, 2001, when Jones did not show up
for work on the first shift, Toland testified he obtained a contact
number from Human Resources for Jones and called that num-
ber. Toland testified he spoke with Jones’s sister, who said
Jones was out of town. Toland testified that toward the end of the
day, at approximately 1:45 p.m., Jones approached him in a con-
frontational manner. A conversation ensued about changing work
hours. Toland instructed that Jones come to work the next day at
5:00 a.m., but denied sending Jones home or of contemplating
disciplining Jones because Jones was going to work eight hours,
albeit later than previously scheduled.
Toland did not recall any specific curse words he might have
used, but acknowledged he was—given to cursing, particularly
when confronted, and acknowledged he may have cursed on the
occasion in question. Toland explained that he didn’t curse any
more than he was cursed at.
Toland testified Cobb returned to work the next day, Tues-
day, February 13, 2001. Toland testified that at about 7:30 to
8:00 a.m. on that day, Jones was not at the pouring deck, but
rather was talking with Union President Lipscomb and Union
Vice-President Hammond. According to Toland, Union President
Lipscomb wanted a meeting about Toland’s cursing of Jones.
Toland agreed to the meeting, but brought Foundry Superinten-
dent Wilson as a Company witness.
Toland testified it was at this meeting between he, Wilson,
Jones, Lipscomb, and Hammond that he learned that Jones had
left work the day before without finishing his shift. Toland
testified this really upset him because Jones had not only estab-
lished his own work schedule, but had left the Company without
permission. Toland testified there was a meeting the next day,
Wednesday, February 14, with Human Resources Manager Gid-
dings, Union President Lipscomb, Vice-President Hammond,
Jones, and Foundry Superintendent Wilson. Jones was suspended
from work after the meeting.
Toland specifically denied sending Jones home on Monday,
February 12, 2001, and more specifically denied telling Jones
to take his damn ass home. On cross-examination, Toland
expressed more than once that he could not remember many of
the specifics about the meetings involving Jones. Foundry Super-
intendent Wilson testified that to the best of his recollection, To-
land did not mention the Union in his meeting with Jones, and the
two Union officials that he was in attendance at.
Human Resources Manager Giddings testified she received a
request from Union President Lipscomb to have a formal meet-
ing regarding Jones on Wednesday, February 14, 2001. Gid-
dings testified she, along with Toland and Wilson, attended for
the Company, and that Jones, Lipscomb, Hammond attended for
the Union. Giddings testified Jones explained he thought his shift
had changed. Giddings testified there was no mention of the Un-
ion at this meeting. Giddings testified it was standard practice for
the Union to be present at such meetings, even if the employees
involved were probationary employees, specifically if they re-
quested Union representation. Human Resources Manager Gid-
dings said she made the decision to discharge Jones and did so
because Jones had walked off the job and arranged his own
schedule.
This case, as in most cases, requires credibility resolutions.
In arriving at my credibility resolutions, I state that I carefully
observed the witnesses as they testified, and I have utilized
such in arriving at the facts herein. I have also considered each
witness’s testimony in relation to other witness’s testimony and in
light of the exhibits presented herein. If there’s any evidence that
might seem to contradict the credited facts I have set forth, I have
not ignored such evidence, but rather have discredited or rejected
it as not being reliable or trustworthy. I have considered the entire
record in arriving at the facts herein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1182
In cases of this sort which turn on Employer motivation, or
lack thereof, I am required to apply the principals set forth by
the Board in its causation test which is outlined in Wright Line,
251 NLRB 1083 (1980) enfd. 662 F2n 899 (1st Circuit 1981),
Cert. denied 455 US 989 (1982), approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983). The Board set
forth its causation tests for cases alleging violations of the Act that
turn, as does the case herein, on employer motivation.
First, the Government must persuade the Board that anti-
union sentiment was a substantial or motivating factor in the
challenged employer conduct or decision.
Once this is established, the burden then shifts to the em-
ployer to prove its affirmative defense that it would have taken
the same action even if the employees had not engaged in pro-
tected activity. See Manno Electric, Inc., 321 NLRB 278, fn. 12
(1996).
How does the Government establish its burden? Govern-
ment counsel must demonstrate by preponderant evidence that
the employee was engaged in protected activity, that the em-
ployer was aware of the activity, that the activity or the
worker’s union affiliation was a substantial or motivating reason
for the employer’s action, and there was a causal connection be-
tween the employer’s animus and its discharge decision.
The Government may meet its Wright Line burden with evi-
dence short of direct evidence of motivation. That is, inferen-
tial evidence arising from a variety of circumstances such as
union animus, timing, or pretext, may sustain the Government’s
burden. Furthermore, it may be found that where an employer’s
proffered non-discriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of
fact may infer unlawful motivation. Sedek Dean Mining Corp. v.
NLRB, 362 Fed 2nd 466, at 470 (9th Cir. 1996), Flour Daniel,
Inc., 304 NLRB 970 (1991).
Motivation of union animus may be inferred from the record
as a whole where an employer’s proffered explanation is im-
plausible or a combination of factors circumstantially support
such inference. Direct evidence of union animus is not required
to support such an inference.
Before applying the teachings of Wright Line to the facts of
this case, it is necessary that I conclude what are the facts in this
case.
I find there is no question or dispute that Jones worked at
critical times herein, primarily on the second shift, and that due
to a health situation involving employee Cobb, resulting in
Cobb’s absence from work, Jones was transferred to the first shift
where he performed work for a few days. As I indicated earlier,
the entire time frame moves from approximately February 4 or 5,
2001 when Cobb became ill until February 16, 2001, at which
time Jones was terminated.
Jones testified that he was told on Friday, February the 9th,
2001, to return to his regular job on Monday, February the
12th, 2001. I credit Jones’s testimony on that point for a num-
ber of reasons. First, Jones impressed me that he was telling the
truth on this point. Secondly, Jones spoke with others about being
told that he was to return to the second shift on that following
Monday.
It also is interesting to note in resolving this credibility reso-
lution that Mr. Cobb actually returned to work on Tuesday,
February 13. I think that fact lends credence to Jones’s testi-
mony that he was told he was returning to work.
I, in crediting Jones, specifically do not credit Supervisor To-
land’s testimony that he did not tell Jones to return to work on
that day because he had no idea when Cobb would be returning
to work. I am persuaded that contrary to Toland’s testimony,
that he was kept fully informed on the status of Cobb’s health and
when he would be returning to work.
I am persuaded that Jones and Supervisor Toland, as well as
Union Vice-President Hammond, are perhaps excitable people;
that there was a vivid exchange, loud boisterous, yelling ex-
change in the meetings that took place between Supervisor To-
land, Charging Party Jones, Union Vice-President Hammond, and
also included Union President Lipscomb.
I am persuaded that in their vigorous exchange and in the
heat of the moment that Supervisor Toland told Jones, as Jones
testified, that he was going to push the matter to the fullest
extent possible because Jones had brought in the Union.
I am persuaded that Toland thought the matter was behind
them. I am fully persuaded that Toland cursed at Jones in the
work place, telling him to, in essence, get his ass out of there
and be back at work the next morning.
But, notwithstanding that, I am persuaded that Toland, when
cooler heads prevailed, thought the matter was behind them.
So, when he learned that it was not, when Jones came in with
the two Union officials, I’m persuaded that this turned the heat
back up again and that Toland made the comments attributed to
him by Jones. Jones’s testimony on that point is supported by the
testimony of Union President Lipscomb and Union Vice-President
Hammond.
I am persuaded that the matter was further pursued and that it
was brought to the attention of the Human Resources Manager
Giddings. I am fully persuaded there was no mention of Union
representation in the meeting with Giddings, that is the first meet-
ing at which the Union President, Vice-President, and Jones were
present for the Union, and that Giddings, Toland, and Wilson, and
perhaps for a period of time, Frost, were present. I am persuaded
that Human Resources Giddings made her determination to dis-
charge Jones based on the facts before her without the knowledge
of the Union accusations that Jones attributed to Toland, which I
find were made. I find that Giddings looking into the matter,
considered that Jones was not at his shift, and that he had left the
job.
I also conclude that as a probationary employee, Giddings
could discharge Jones without any reason—good, bad, or indif-
ferent.
But where the Government moves the case forward is that I
am fully persuaded that the case would never have gotten to
Human Resources Manager Giddings’ attention had it not been
for Toland’s pushing the issue. And I find Toland pushed the
issue because Jones continued to pursue it and pursue it with the
Union officials. It is for that reason that I am persuaded that the
matter ever got to Giddings attention. I find that Giddings per-
formed her job without the knowledge of that Union activity and
that she took the action that she did based on the leaving and the
ensuing mix-up of his not being on the job.
The fault, or the unlawful motivation for the discharge of
Jones, rises from Toland. And it is Toland’s sharp and focused
GOLDEN FOUNDRY & MACHINE CO. 1183
reason for advancing the case that persuades me that the Gov-
ernment fully established a prima facia case of unlawful motiva-
tion in the discharge of Jones, and that the Company has not met
its burden of demonstrating that it would have taken the same
action even in the absence of the unlawful activity by Toland.
And I make that conclusion because, as I have repeatedly
emphasized, the matter would never have gotten to Human
Resources Manager Giddings were it not for the unlawful ac-
tion of Toland.
I find that the Company must offer reinstatement to Jones,
and make him whole for any loss of compensation he may have
suffered as a result of the unlawful action involving him.
It is also alleged in the Complaint that the comment of To-
land to Jones violates Section 8(a)(1) of the Act as a threat, and
I’m persuaded that it does, and I am relying specifically on the
account of Jones that Toland told him he was going to push the
issue because Jones had gone to the Union for help.
I will order an appropriate Notice for the 8(a)(1) violation.
It is also alleged in the Complaint that on or about June 1,
2001 the Company unilaterally changed employees’ clock-in
time and that such activity on the part of the Company violated
Section 8(a)(5) of the Act. It appears the Company, for a num-
ber of years, had a clock-in system that worked for each depart-
ment in which you had a card clock-in situation arrangement. The
Company changed to a turn-style type, one location clock-in type
arrangement. Prior to that time, the parties had an understanding
as to what time one would be required to clock-in in order to be at
one’s duty station timely. What the time limit was with the previ-
ous arrangement is perhaps not critical at all to this proceeding.
But there was the establishment of the new turn-style type clock-
in system, which it appears from the record may well be a card
swipe type entry to the facility that records the time with a great
degree of specificity.
So Human Resources Manager Giddings determined that
there needed to be some sort of adjustment with respect to what
the clock-in time would be. Union President Lipscomb also
came to that same conclusion and asked that there be an evalua-
tion to see what would be the proper time that an employee would
have to be clocked in in order not to be docked time for failure to
clock-in in a proper and timely manner.
A failure to clock-in on a proper and timely manner resulted
in perhaps a 15 minute penalty. Also a number of occasions of
clocking in incorrectly could result in multiplying itself into an
absence and matters of that sort. So, it was important, both to the
Company and the Union, that they arrive at some resolution of this
clock-in time problem.
The record supports and I find that there was an informal
meeting between Union President Lipscomb and Human Re-
sources Manager Giddings in which they discussed what would
be the proper time, and then there was a more formal meeting at
which the Union’s negotiating committee, as well as the Com-
pany’s official representatives, were present at. The Union con-
tends through Union President Lipscomb that the parties agreed to
a two minute clock in time, and that the Company came back and
wanted to renegotiate it to a five minute clock in time. Union
President Lipscomb testified there was never at any time an
agreement to a three minute clock in time.
The parties had their formal meeting, and according to the
Human Resources Manager Giddings and two of the Com-
pany’s management personnel that were there all indicate that
there was an agreement at this meeting that there would be a
three minute time established and the Company implemented that
three minute program and operated under it for an extended period
of time.
I am fully persuaded that the parties arrived, as testified to by
Giddings and supported by Supervisor Jefferson and Depart-
ment Manager Thomas, that at a three minute clock in time. I
do that for a number of reasons. One, I believe Giddings testi-
fied truthfully on that matter. Secondly, it was implemented with-
out protest for at least a two month period of time. That informa-
tion, based on the credited testimony of Giddings, was dissemi-
nated to the employees at safety meetings at which at least one of
the meetings Union President Lipscomb and Vice-President
Hammond were present at.
So, I find there was no unilateral action on the part of the
Company in changing the time as alleged in the Complaint, and
I shall dismiss the Complaint in that respect.
Even if I did not conclude that there was an agreement, I
would certainly find that the parties had reached impasse on the
matter, because impasse occurs when there is no likelihood of
further movement on the part of either party, and it appears there
is no further grounds on which the parties are going to move. I
would find they were truly at an impasse, and I base that on the
testimony of Union President Lipscomb who candidly admitted
that there was nothing further to be said by the parties on this is-
sue.
So, I conclude that the parties did reach an accord on that,
and that in making that conclusion I find that the Government
has failed to sustain its burden of proof that there was a unilat-
eral change in employees’ clock in time on or about June 1,
2001. And I shall dismiss that allegation in the Complaint.
In approximately ten days, the Court Reporter will serve on
me a copy of the transcript in this proceeding. I will review
and make corrections on that part of the transcript that consti-
tutes my Decision, if corrections are needed. I will then certify
those pages of the transcript that constitute my Decision as my
Decision, and I will attach to it a Notice that will need be posted.
It is from that time of the certification of my Decision that the
appeals period runs, or at least that’s my understanding of the
Board’s Rules and Regulations. I invite you, however, to check
the Board’s Rules and Regulations for yourself and not rely on my
understanding of them.
Again, let me state that it has been a pleasure being in Co-
lumbus, Georgia. It has been a pleasure meeting each of you.
And with that, this trial is closed.
(Whereupon, the hearing was closed at 10:00 a.m.)
APPENDIX B
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.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184
FEDERAL LAW GIVES YOU THE RIGHT TO

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

WE WILL NOT discharge employees because they engage
in union and/or concerted protected activities.
WE WILL NOT threaten our employees with unspecified
reprisals because of their union and/or other concerted pro-
tected activities.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL offer Anthony D. Jones full reinstatement to his
former job or if his former job no longer exists to a substan-
tially equivalent position without prejudice to his seniority or
other rights or privileges previously enjoyed; and, WE WILL
make him whole for any loss of earnings and other benefits
resulting from his discharge less any net interim earnings, plus
interest.
WE WILL within 14 days from the date of this Order, re-
move from our files any reference to his unlawful discharge,
and within 3 days thereafter, notify Anthony D. Jones in writ-
ing that this has been done and that his discharge will not be
used against him in any way.

GOLDENS FOUNDRY & MACHINE COMPANY