Honeywell International, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 26, 2006

05-CA-032884 (N.L.R.B. Dec. 26, 2006)

JD–90–06
Hopewell, VA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HONEYWELL INTERNATIONAL, INC.,

and Case 5–CA–32884

TRACEY NELSON, AN INDIVIDUAL.

INTERNATIONAL CHEMICAL WORKERS
UNION COUNCIL OF THE UNITED FOOD AND
COMMERCIAL WORKERS UNION, LOCAL 591 C,

and Case 5–CB–9942

TRACEY NELSON, AN INDIVIDUAL.

Christopher Coxson, Esq.
of Baltimore, Maryland, for the General Counsel

Brandy L.N. Keblusek, Esq.
of Glen Allen, Virginia, for the Charging Party

Michael E. Ferrans, Esq.
of Morristown, New Jersey, for the Respondent Employer

Robert W. Lowrey, Esq.
of Akron, Ohio, for the Respondent Union

DECISION

Statement of the Case

DAVID I. GOLDMAN, Administrative Law Judge. On January 31, 2006, Tracey Nelson filed
an unfair labor practice charge against her employer, Honeywell International Inc. (Honeywell),
docketed as Case 5–CA–32884. That day Nelson also filed an unfair labor practice charge
against her union, the International Chemical Workers Union Council of the United Food and
Commercial Workers Union, Local 591 C (the Union or Local 591 C), docketed as Case 5–CB–
9942.

On May 31, 2006, the General Counsel of the National Labor Relations Board (Board)
issued an order consolidating the two cases and a consolidated complaint against Honeywell
and the Union alleging violations of Section 8(a)(1), (3), and (b)(2) of the National Labor
Relations Act (Act), 29 U.S.C. § 158(a)(1), (3), and (b)(2). Each Respondent filed an answer
denying it had violated the Act in any manner.

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This case was tried in Richmond, Virginia on October 23–25, 2006. Counsel for the
General Counsel and each Respondent filed a brief in support of their positions by December 6,
2006. On the entire record, including my observation of the demeanor of the witnesses and
other indicia of credibility, and after considering the briefs filed by the parties, I make the
following findings of fact, conclusions, and recommended order.

FINDINGS OF FACT

I. JURISDICTION

Honeywell is a corporation that produces chemicals, plastics, and other materials for the
aerospace and automotive industries at, among other places, its Hopewell, Virginia facility.
From that facility, annually Honeywell sells and ships goods valued in excess of $50,000 directly
to points located outside the State of Virginia. Honeywell admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

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

II. ALLEGED UNFAIR LABOR PRACTICES

A. Relevant Facts

1. Background

The south section of Honeywell’s Hopewell, Virginia facility primarily produces
caprolactam, a key ingredient in nylon fiber. At the hearing in this case, estimates of the
number of bargaining unit employees in the south section ranged from 330 to 425. These south
section bargaining unit employees are represented by one of five different unions, but the vast
majority are represented by Respondent Local 591 C.

Since 1991 Honeywell and the south section unions have collectively bargained an
extensive training program for chemical operators at the Hopewell plant. The training program
involves a wide range of training in production methods, computer skills, regulatory and safety
issues. Union officials have been deeply involved in the training program from its inception.
The current training program provisions are found at Memorandum of Understanding #32, which
is an addendum to the current collective-bargaining agreement between Honeywell and the
south section unions. This collective-bargaining agreement is effective by its terms at least until
April 8, 2008.

Pursuant to the training program, an area trainer is assigned to each production area.
There are approximately seven area trainers. Area trainers work with operators in their
assigned area to ensure that the operators understand production and safety procedures, and
regulatory requirements applicable to their work. Area trainers are responsible to the supervisor
within the area but their training responsibilities are guided by an hourly training leader (or lead
trainer). The lead trainer is responsible for providing direction to the area trainers and ensuring
standardization of the training program. The lead trainer shares responsibility with supervisory
personnel for evaluating the performance of the area trainers. There is also a nonbargaining
unit supervisory lead trainer to whom the hourly training leader reports. The supervisory training
leader and bargaining unit lead trainer work with the area trainers to ensure that the plant’s
chemical operators are properly trained, working in accordance with all technical, safety, and
production standards, and maintain all necessary certifications. Selection of the lead trainer and

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area trainer positions involves an interview of applicants by a panel composed of supervisory
employees chosen by management and hourly employees chosen by the Union. This selection
method evolved from practices developed in the jointly administered apprenticeship program.

This case concerns the selection of a lead trainer in fall 2005. In April 2005,1 the
incumbent lead trainer accepted a supervisory position with Honeywell. The lead trainer
position remained vacant through the summer and in August the position was posted and
interested employees submitted bids. Eight employees applied for the position and they were
interviewed and vetted by a selection committee composed of three individuals chosen by Union
President Stephen McGuire and three chosen by management. After the job was awarded, one
of the unsuccessful applicants for the position, Tracey Nelson, filed unfair labor practice charges
against Honeywell and the Union resulting in this case.

The Government alleges that the selection process for the lead trainer position was
tainted by discriminatory animus violative of Section 8(a)(1) and (3) of the Act. The
Government’s theory is that the selection committee’s process was tainted by unlawful
discriminatory animus against Charging Party Nelson’s candidacy based on her marriage to
Alan Nelson, a bargaining unit employee and a forceful and effective union activist who was a
member of one of the unions other than Local 591 C representing employees at the facility. The
Government also contends that the record demonstrates that the selection committee’s process
was tainted by unlawful discrimination in favor of Patricia Grigg, the applicant selected by the
committee for the lead trainer position, and the secretary-treasurer of Respondent Local 591C.

The Government contends that in conducting this selection process Honeywell violated
Section 8(a)(1) and (3) of the Act. The Government further contends that the Union, which
chose three members of the selection committee, caused or attempted to cause Honeywell to
discriminate in violation of Section 8(a)(3) and thereby violated Section 8(b)(2) of the Act.

2. Events leading up to the lead trainer bidding process

Bruce Stargardt held the hourly training leader position from August 1996 to April 2005
when he accepted the lab supervisor position. When Stargardt left the lead trainer position it
was assumed in the plant that the job would be filled, although, in fact, Honeywell considered
not filling it, which contributed to a four-month delay before the position was bid on August 4.

Charging Party Nelson is the area trainer for the Specialty Chemicals area of the facility
and has served in that position since 1995. Between April and August, Nelson regularly
discussed with co-workers her interest in applying for the lead trainer position—yet to be posted
but anticipated once Stargardt vacated the position.

For seven or eight years, Nelson regularly ate lunch in the plant cafeteria with a group of
coworker friends including Joseph Alexander, a vice president of Local 591 C, Steven Brinkley,
the Union’s recorder, and Bruce Stargardt, the lead trainer whose move to supervision resulted
in the opening. More recently Patricia Grigg, Local 591 C’s secretary treasurer, had begun
eating lunch with the group. Nelson had a number of informal lunch discussions with this group
about the lead trainer position and her interest in the position. Nelson testified that she would
hear from Brinkley and Alexander comments to the effect that “the fact that I was married to
Alan would hurt me to getting that position” and that “Alan Nelson being my husband may be a
problem for me.” Nelson testified, vaguely, that such comments were made “a number of

1All dates are in 2005 unless otherwise indicated.

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times,” but specifically described only one incident where Brinkley told her this. Nelson also
stated that Alexander had made such comments, and in his testimony Alexander recalled one
such discussion.2

Nelson assumed she knew the reason for such comments. Her husband was an
effective advocate for employees at the plant. Although a member of the IBEW Local 66, which
represented just 15–17 employees in the south side facility, Mr. Nelson’s union activity was not
confined to IBEW matters. He regularly assisted Grigg when she was Local 591 C’s president
and he actively involved himself in Local 591 C affairs with management. Indeed, Alan Nelson
had been heavily involved in the training program in the past. He had sat on the committee that
selected Patty Nelson as an area trainer and was involved in negotiations for the “second
phase” of the training program implemented during 1996 negotiations. Some Local 591 C
officials thought Grigg relied too much on Mr. Nelson’s assistance. It would be incorrect to say
that there was animosity between Alan Nelson and Local 591 C officials. To the contrary Local
591 C officials continue to work closely with Nelson on labor issues and have done so for
decades. But there was also a concern that his effectiveness undercut the Local 591 C officials.
Both McGuire and Brinkley had, at unspecified times, said that they had a problem with
Nelson’s involvement in Local 591 C affairs. Alexander, a longtime Local 591 C official and, as
will be discussed below, a central actor in the events that led to this case, explained:

Well, it's kind of twofold. Alan is probably the strongest union leader in our plant.
He seems to have the ability to get things done on a number of occasions, when
the rest of us cannot. . . . and that if he doesn't agree with the way our local
does something, he tries to change that and if he can't do that, then he
sometimes goes to our members and kind of puts the bug in their ears, so to
speak, and let them try to force us to change what it is we're trying to decide.

As discussed below, Alexander was a vocal and volatile supporter of Tracey Nelson’s
bid to be lead trainer. He was also an area trainer and had been deeply involved in the
development of the training program at Honeywell over the 15 years. During the summer of
2005, he and Brinkley, who was also an area trainer of longstanding, had one conversation in
which they “speculated” with each other over whether anyone from Honeywell would “be

2Brinkley denied ever having conversations with Nelson in which he suggested that her
marriage to Alan Nelson might be an obstacle to her appointment to the lead trainer position.
Alexander corroborated that he was involved with one such discussion with Nelson present
although he could not say who initiated the conversation or how it began. I generally found
Nelson to be a credible witness and I find that Brinkley occasionally made these comments,
although Nelson’s vagueness and lack of detail about the conversations beyond the one
described lead me to conclude that the comments were nowhere near as frequent as she
suggests. Brinkley was a problematic witness in the following regard. As to events he
affirmatively recalled his testimony was plausible and his demeanor straightforward. However,
in a number of instances where he simply denied (or denied any recall of) conversations to
which others testified, I was less impressed with his credibility. Notably, Stargardt’s undisputed
testimony was that after it was known that Nelson had filed a Board charge, Brinkley told him
that “we needed to watch what we say.” My impression is that Brinkley did that and was careful
to avoid testimony that he thought could be used to support Nelson’s claims. However, I do not
believe that he invented testimony, or provided affirmative recollections that were not honestly
recalled. It is as to events he did not “recall” or conversations he denied that others recalled
that he was less credible.

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concerned that if Tracey got the job, that Alan would have his nose in it and whether or not we
should be concerned, as trainers and/or union members, whether Alan would stick his nose in
it.”3 Over the years, Alexander had heard some Honeywell officials refer to Alan Nelson as “a
pain in the ass” because he “has stopped the company from doing things that they wanted to do
and made them do things that they didn’t want to do.” As to the Union, Alexander explained,

[Alan’s] in the maintenance department. The last thing we want is them having
any involvement or any say so in our training program for the operators. And
that's just how Alan is. He involves himself in things. And we felt that it could be
a bad thing. And we were speculating whether or not it would hurt us if Tracey
got the job and we were speculating whether or not the company, if that would
run through their head. If Tracey gets it, then will Alan be in this, too?

Tracey Nelson also testified about one further incident that concerned her in the summer
of 2005. At lunch one day, with Alexander, Stargardt, Grigg, and another employee, Brinkley
joined the group and said that he had just come from a meeting with Connie Lester, a
Honeywell Human Resources supervisor, and that she had stated that for the lead trainer
position “she was looking for someone without strong union ties and that could remain neutral.”
Nelson interpreted the comment as being about her, although with Patty Grigg and two other
Union officials sitting there, I think that Nelson’s interpretation is more indicative of the level of
her concern, and was probably not an allusion to her husband’s union activity. Nelson turned to
Stargardt and said “I hope I’m not convicted for what my husband does.”4

Notwithstanding Alexander’s speculation about the pros and cons of having Alan
Nelson’s spouse as lead trainer, Alexander was a vociferous supporter of Tracey Nelson’s
desire to be lead trainer. From the time Stargardt vacated the lead trainer position in April until
the commencement of interviews of new applicants for the position in September, Alexander
and Brinkley had a number of discussions among themselves about who the new lead trainer

3Alexander’s testimony regarding this discussion was not disputed and is credited.

4Brinkley did not recall ever hearing this from Lester. Lester did not recall making such a
statement. However, Brinkley did not testify about whether he made the statement to Nelson
and neither Stargardt nor Alexander was asked about the comment. Thus, Nelson’s testimony
that Brinkley made the comment is unrebutted. I credit Nelson’s assertion that Brinkley made
the remark. Having said that, in light of Grigg’s subsequent selection as lead trainer, the
comment rings hollow. I accept that Brinkley made this comment, probably offered as
scuttlebutt to the group he lunched with about management’s plans. However, the evidence
does not warrant the conclusion that Lester actually made the comment. She denied it and only
Nelson’s hearsay account is offered in support of the truth of the matter asserted. It is
speculative on my part, but I think it possible that Brinkley’s comment was based on his
interpretation of some far less pointed remark Lester could have made expressing the concern,
remarked upon by others at trial, that a lead trainer had “to walk a fine line” as “its one of the few
jobs where you [ ] sit somewhat in judgment of other union members . . . you can have
someone fail out of a program and be disqualified. So . . . there’s a fine line and you know, it
creates conflicts between the company and the union at times.” This might be a reason for at
least a discussion about the ability of lead trainer to remain “neutral” in employment disputes.
However, speculation aside, I do not find that Lester made the remark Brinkley attributed to her.

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should be and what qualifications the individual should have.5 Alexander’s strongly held view,
that Brinkley shared (although, as will be seen, without as much steadfastness), was that if an
employee with experience as an area trainer in the training program bid on the lead trainer
position, that employee should be awarded the position over a nontrainer, unless the nontrainer
had particularly relevant education. As word got around about who was planning to apply for
the position, Alexander became more vocal. The unrebutted testimony of Mike Hammond, who
worked in Area 9 with Alexander, was that whenever the subject of the lead trainer position
came up, “he was always for Tracey [Nelson] and you could tell he was definitely for Tracey.”
Hammond stated that Alexander “always tried to talk about Tracey—her positive side and then
tried to down Patty [Grigg] on her negative side.” Indeed, “more than once,” Alexander stated
that “if Patty [Grigg] had the job or got the job that he would get at the union.”

The impetus for Alexander’s view seemed to be rooted in loyalty to the training program
that he had helped develop, and his views on past controversies involving the training program.
His view was, but was not simply, that as an area trainer Nelson was more qualified for the
position than someone not already in a training position. In his testimony, Alexander repeatedly
emphasized that he did not want Patty Grigg to become the lead trainer. Alexander repeatedly
emphasized that as a union officer Grigg had not been supportive of the training program, and
had criticized the program and some of the trainers. In one instance, Grigg had suggested that
trainers were abusing the system and taking too much overtime to complete their work.
According to Alexander’s, “Patty just, for whatever reason, she seemed to be opposed to the
training program and us trainers.” In Alexander’s view, this was disqualifying.

3. The lead trainer job is bid; a selection committee is formed

The notice for the lead trainer vacancy was posted on August 4. The notice instructed
interested applicants that in addition to placing a bid they were to provide credentials and a
resume to Connie Lester before the close of the bidding period, denoted as August 18.

Eight employees bid on the job: Tracey Nelson, Patty Grigg, Michial Hill, Deanna
Brockwell, Alonzo Brown, Kris Anderson, Jason Ashby, and Melanie Thompson.

During the bidding period, Union President McGuire and Union Recorder Brinkley
approached Connie Lester about putting a committee together for the hiring of a lead trainer.
Lester agreed that this should be done. After the bidding closed a committee was established.
Management chose Lester, Stargardt, and the production leader for area 9, Jason Voigt.
McGuire chose himself, Brinkley, and Alexander.

However, McGuire soon reconsidered his choice of Alexander. Grigg complained to
McGuire that she had heard that Alexander was telling people that “Tracey Nelson better get the
job and that Patty Grigg better not.” McGuire confronted Alexander about this and Alexander
admitted making these types of comments, as described above. McGuire told Alexander that
this was a problem and, and that “if you are making comments like that, you were showing bias
and I'm asking you to remove yourself from this committee or I'm going to have to.” Alexander

5Brinkley insisted that he did not recall such conversations. I think this is another example
of Brinkley’s commitment to “watch[ing] what we say.” I credit Alexander’s account.

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choose to remove himself from the committee, declaring that “I don’t need this crap. I’m going
to retire in a few months . . . I’ll just get off the committee.”6

McGuire chose Tyrone Flowers, a vice president of Local 591 C, to replace Alexander.
With that selection the committee assignments were complete.

4. The selection process begins

Each member of the selection committee testified about the selection committee process
and deliberations.7 In general, the testimony of the selection committee members was
consistent and mutually corroborative. Some panel members recalled certain details of the
process and deliberations differently, but this is to be expected when six people recall a series
of meetings, eight interviews, and an informal process occurring one year earlier. I have noted
some (but not necessarily all) of the discrepancies but for the most part they were minor and
collateral. As discussed, infra, I do not believe the General Counsel can construct his case
based on these inconsistencies. The discrepancies do not detract from an essentially
consistent account of the panel’s deliberations and processes that emerges from the weight of
the testimony. Of course, individual panel members had different views on candidates, but this
too is to be expected—indeed, it may be considered the point of hiring by committee.

The selection committee had its “kick off” meeting the morning of September 26, and
conducted its first interviews later that day. Lester served as the chair of the selection
committee.8 At this first meeting of the committee there was discussion about how to conduct
the interviews of applicants and an effort to obtain consensus on the key characteristics that the
committee was looking for in a lead trainer. Lester distributed the applicants’ resumes
submitted with their bids.9 The panel reviewed the resumes received from applicants and opted
to interview each applicant and not to reject any candidates based on their resumes, which was
a process Lester had used in past hiring situations to screen out unqualified applicants.

6Alexander was reluctant to admit that he was forced off the committee, stating that he
“didn’t think” he had such a conversation with McGuire but then repeatedly declared that “if
McGuire says it happened, it did.” I consider this as Alexander’s oblique way of admitting the
conversation, credibly testified to by McGuire and by Brinkley. I credit their account. Alexander
suggested that he did not want to be involved in the committee because “very often, when
there’s a selection made, there’s—there tends to be some controversy that goes with it and I
really didn’t want to get involved in that controversy.” Ironically, as will be seen, Alexander’s
reaction to the committee’s selection engendered much of the ensuing controversy.

7The exception was Robert Sykes, a health and safety engineer designated by management
to attend the October 7 interviews of Nelson and Thompson when a personal matter required
Voigt’s absence.

8At trial Lester referred to herself as the “lead person” for the committee. Others referred to
her as the “chairperson” or “chairman.” It is not clear that these terms were used during the
committee meetings but, as one witness explained, “that's what she was” It is clear from the
record that Lester led the discussions, scheduled meetings, and generally drove the process.

9One candidate, Dianna Brockwell, had failed to submit a resume but was permitted to
provide one when she was interviewed.

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Lester also discussed the interview evaluation forms that she had prepared and
proposed that they be used to evaluate each candidate after their interview. There was
discussion about the forms, which listed 6 skills groupings or “competencies” that Lester
believed most important for the lead trainer position. Under each competency, subskills
relevant to that competency were listed. The six competencies were Comfort with
Organizational Structure, Vision, People/ Facilitation Skills, Computer, Administrative,
Technical. Each competency contained a listing of subskills that are relevant to and explain the
competency. At the completion of each applicant’s interview, each panelist was to rate each
applicant based on a one to five scale for each subskill listed on the sheet. Lester said that the
information gleaned from the evaluation forms would be discussed later in the process, however
there was no discussion at this time of how the results of the evaluation forms would be utilized.
Brinkley recalled that there was discussion at the outset that there were “eight candidates, that
seven people would be disappointed when this was over.”

Lester discussed her plan for the interviews. She wanted to make sure that the interview
process and the questions asked were the same for each applicant. She stressed that each
applicant needed to be told that the new lead trainer would be working for Lester, and that there
would not be much overtime involved in the job unless approved by Lester. 10 Each panel
member was assigned to formulate questions relating to one of the subjects listed on the
evaluation sheet. Lester asked the panel members to come up with the questions and then the
panel would meet later in the morning to discuss the questions along with anything else they
needed to discuss before the first interviews, set for that afternoon.11

That day (September 26) the panel conducted the first interviews, meeting with
applicants Hill, Brockwell, and Brown. The interviews followed the established procedure that
was undertaken for all eight interviews. The applicant was taken through the questions
prepared by each panel member. Each panel member asked the applicants the questions they
had prepared. At the completion of each interview there were a few minutes of discussion
among the panel members as they filled out the evaluation forms regarding what they heard or
checking with each other to clarify any questions that might have arisen. The completed forms

10Lester anticipated that she would soon be serving as the salaried training department
leader, however, Lester soon took a position with Honeywell at another location.

11The testimony is contradictory and unclear as to whether Lester introduced the evaluation
sheets at the initial meeting or at the later meeting just before the first interviews. There is no
question but that Lester prepared the forms. McGuire and Brinkley testified that Lester created
these evaluation forms without the input of the panel and introduced them at the initial meeting.
There was then discussion of what skills and competencies the group was looking for and each
panel member was assigned—based on a competency listed on the evaluation forms—to write
interview questions on a particular subject. However, Voigt testified that Lester’s forms were
derived based on input from committee members at the initial committee meeting. Stargardt
and Lester were less clear—their testimony is hard to follow on this point—but they too suggest
that the forms were introduced later that day, in the meeting held just before the interviews.
This, however, is inconsistent with testimony that the panelists relied upon the forms to create
interview questions that were turned into Lester and reviewed prior to the interviews. McGuire
specifically testified that he relied upon the evaluation sheets to create his questions. I think the
most likely scenario is that Lester brought the forms to the first panel meeting prepared to
discuss them and amend them if panel members insisted. However, the panel accepted the
forms as prepared. Thus, Lester may have viewed the forms as a product of group discussion
but others just accepted the forms as a finished tool presented to them by Lester.

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were collected by Lester. The panel followed a similar procedure when it interviewed the
remaining candidates for the position. On October 3, the panel interviewed Grigg, Ashby, and
Anderson. On October 7, the panel interviewed Nelson and Thompson.

After the October 3 interviews, and before Nelson’s interview on October 7, Nelson
approached Brinkley in his office and asked whether resumes alone would be “what it takes to
put someone in the lead trainer position.” Brinkley responded that this “was just part of it and
we were using the interview process, the resumes, your leadership skills and things like that.”
Nelson explained that she had been concerned that her resume was not as strong as Jason
Ashby’s and that this motivated her question. In addition to going over the process with her,
Brinkley gave Nelson advice about the interview, specifically telling her that “it would benefit her
. . . to bone up on topics like Department of Transportation and process safety management and
ISO and things like that.”12

There was nothing unique to Nelson’s interview. Nelson testified that at the interview
panel members were sitting in a circular arrangement in front of her and that Lester began by
explaining the process. She told Nelson that a panel member would ask questions and then the
next panel member would ask some questions until the interview was finished. As Brinkley had
warned her, Nelson was asked about ISO and process safety management. Nelson answered
panel member Flowers’ questions about these subjects and in her testimony, Nelson noted that
Flowers complimented her on her answers to these questions, stating that “he can't believe how
different it is when you interview a trainer . . . no comparison.” Flowers added in his testimony
that when Nelson was leaving the interview he told her that she had done a good job. However,
he also made that comment to others, including Grigg, and, in fact, did not believe Nelson had
done the best job of the eight applicants.

After the interview McGuire went for lunch and met Nelson sitting with others in the
cafeteria. According to McGuire’s uncontradicted and credited testimony, Nelson asked him
how he thought the interview went and McGuire told her that “I honestly thought that she did not
do a very good job. I told her that I was expecting her to really blow us away.” McGuire testified
that he was not certain, but believes that Alan Nelson was present for his comments and
someone, it may have been Mr. Nelson, asked whether there would be a chance to reinterview
once the number of candidates had been narrowed. McGuire responded that he was sure the
committee would discuss this at some point if they felt that they needed to do that. Panel
member Stargardt had a somewhat similar conversation with Nelson after her interview. His
uncontradicted testimony was that after the interview he had discussed with Nelson “how I felt
she had done. One of the things we discussed is Tracey felt like she didn't want to, you know,
over-elaborate and talk too much on any particular point and I told her that, you know, that was
her time to sell and she in some instances undersold herself.”

5. The selection panel narrows the field

After the completion of interviews the panel reconvened October 11 to discuss the next
step to take. Flowers was absent on funeral leave and did not attend this meeting.

At the October 11 meeting the panel pared the applicants list down to four names.
Lester placed all eight names on an eraser board. There was discussion about the pros and
cons of each applicant. As part of this discussion, Lester put on the board figures that she said

12I note that the testimony regarding this conversation was unrebutted and I credit it as
testified to by Brinkley.

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were calculations that represented the total “score” achieved by candidates based on tabulation
of the scores panelist had given to each applicant on the evaluation forms. Lester had added
these figures together for each candidate, giving triple weight to the one bolded subskill that
appeared in each competency area on the evaluation sheets.13 There was also discussion at
this meeting of each panel members’ first through third choice as of this point in time.

At this meeting, the panel agreed to eliminate the four that they thought “least likely to be
lead trainers or have the potential to be a lead trainer.” As to this process there is some
divergence in the testimony. According to Lester and Stargardt, the cut of candidates from eight
to four was based solely on the numerical scores that she had totaled. Lester explained that
she “brought forth” the four top candidates, based on evaluation numbers, and that the panel
members were comfortable proceeding with the four top scoring candidates as “a starting point”
for the panel’s further evaluation. However, other panel members recalled that while the
numbers were presented by Lester and discussed, the winnowing was based on a consensus of
the panel members based on the entire discussion. It is, in fact, undisputed that there was
discussion of the candidates at this meeting, including solicitation of each panel member’s top
three choices for the position. It is also true that the candidates eliminated at the October 11
meeting were the candidates with the four lowest total scores in Lester’s calculations and there
is a noticeable gap between their scores and the remaining candidates. My explanation, and
my finding, is that for certain panel members, particularly Lester (who calculated the scores), the
scores were the decisive factor in the decision to eliminate Thompson, Brown, Anderson, and
Brockwell. However, I find that the remaining panel members who recall a consensus being
reached after discussion that took into account an overall assessment of the candidates are
accurately recalling that, for them, the numerical rankings were not the exclusive factor.

According to panel member Voigt, there was discussion at this meeting about how to
use the scores going forward and that

“the feeling amongst the group was that the scoring system we had, though—
though effective in identifying a top and bottom half, so to speak, the top four and
bottom four, we didn't feel it was accurate enough and precise enough, I guess is
the right word, to determine, you know, the difference between one, two, three
and four all by itself. We weren't confident that the scoring system itself could
clearly delineate between those top four.”14

After the meeting McGuire contacted Flowers and explained to him that the panel had
eliminated the four applicants and planned to move forward at a next meeting to consider the
remaining four. Flowers expressed surprise that Thompson had been eliminated but after

13The totals, as calculated by Lester, were Tracey Nelson 1175, Patty Grigg 1111, Jason
Ashby 1106, Michial Hill 1100, Melanie Thompson 1032, Alonzo Brown 943, Kris Anderson 974,
Deana Brockwell 643. Lester testified that the weighting of certain subskills was a group
decision. Other panel members did not remember discussions of weighting of the scores. I
think this is another example where Lester’s control of the process was more apparent to the
panel members than it was to Lester, who generally recalled a more consultative process.

14Voigt (and McGuire) also testified that there was discussion amongst the panel regarding
the concern that Lester’s scoring commingled his scores and those of Sykes—who had taken
Voigt’s place for two of the interviews—treating the two of them as one panel member. Voigt
recognized that Syke’s rankings may have differed from his own, both in terms of assessment of
any particular candidate and in terms of the relative assessment of candidates.

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hearing about the consensus reached at the meeting told McGuire that “he could live with that.”
After the panel meeting, on October 11 or the day after, Alexander drove to McGuire’s
house. McGuire was just arriving in his truck and Alexander pulled up and started screaming “I
don’t know what the fuck you all are doing . . . you all are being common son-of-a-bitches if
you’re doing what I think you’re doing.” McGuire testified that at first he did not know what
Alexander was angry about, and he invited Alexander to the back deck to avoid having the
yelling in front of the house. Once there Alexander told McGuire, “I know that goddamn Patty
and I know Tracey is still [ ] in the final four and I believe Jason Ashby and Mike Hill is but I
can’t swear by that, but I know Tracy and Patty are and goddamn it, Steve, you know how I feel
about Patty and Patty better not get that damn job.” McGuire testified that he told Alexander to
calm down and told him that, “there are four individuals left to be considered . . . . I suggest you
let the committee do their job and go from there. And just because Patty's left on the—in the
interview process does not necessarily mean that Patty's going to get that job. Now, it doesn't
mean Tracey is, either, because there are four people left and in my opinion, all four people
have a good shot at getting that job.” Alexander responded that “you know how I feel. Tracey's
the most qualified. She's a trainer and she better get that goddamn job.” McGuire said, “Joe, I
said I can't do this. . . . [a]ll I can tell you is, is that the committee is doing the best job they can
do. I can't tell you who's going to get it and who isn't.” Alexander calmed down and left.15

Alexander’s outburst reflected his frustration over the committee’s deliberations, which
he monitored through Brinkley. As set forth above, even before the committee met, or was even
constituted, Alexander had made clear his view that Nelson should get the lead trainer position,
and, as vehemently, his view that Grigg should not. Prior to the interviews, he had talked
extensively with Brinkley about this and Brinkley, who like Alexander was an area trainer, had
seemed to agree with Alexander that an area trainer, and specifically Nelson, was the best
candidate for the job. Indeed, Alexander admitted that he had expected Brinkley to “carry [his]
water” on the committee. However, Alexander realized that “after Steve [Brinkley] began
interviews, what we had talked about prior, he changed.” Brinkley indicated that “he was really
interested in Michial Hill” and at one point described Hill as “his leading candidate, in his mind.”
Alexander realized for the first time that Brinkley “was leaning away from Tracey and leaning
towards” Hill. By the time Alexander confronted McGuire, Alexander realized that the panel
member he had been counting on to support Nelson had been swayed by the process and was
now interested in other candidates.16

6. The selection panel makes its choice

The selection panel met again October 17 to choose a final applicant. The panel
discussed the four candidates’ strengths and weaknesses. Lester proposed eliminating
candidates one by one. Lester testified that she considered all four to be good choices and that
eliminating one by one would allow the group to chip away at their goal of reaching a final

15Asked about this particular conversation, Alexander first said that he couldn’t “recall much
of that conversation” and then stated that he could not recall what was said. However, he was
unwilling to deny that the conversation occurred. I credit McGuire’s account. Alexander did not
deny it, and it is certainly consistent with his pattern of conduct in this matter.

16There is evidence that Alexander’s equanimity about resigning from the panel was based
on his belief that he could count on Brinkley to advocate for Nelson. Alexander testified that he
told Grigg that “[h]ad I thought that there was any chance she could win the job over a trainer, I
would not have gotten off the committee and . . . that because of things that she had said about
us and because of her lack of experience, that she didn't deserve the job.”

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candidate and allow for continued discussion as they did so, as opposed to just taking a vote
right away on the four. After discussion, the panel members went around the room expressing
their opinion on who should be eliminated. Lester placed the candidates’ names on the board
and put a checkmark next to the name when a panel member indicated that the applicant was
their choice to be eliminated from contention.17

The first candidate eliminated was Ashby. Lester attributed this to a lack of
interpersonal skills. Voigt testified that he did not think Ashby, was the “right person for the job.”
After that the panel continued discussing the remaining three and next eliminated Nelson from
contention. Lester testified that the group discussed that “during her interview she undersold
herself as far as her skill set.” There was also discussion regarding the fact that her
responsibilities as an area trainer in the Specialty Chemical area were not as broad as the
responsibilities of trainer’s in other areas. In the Specialty Chemicals area the salaried engineer
handled some of the responsibilities performed by area trainers in other areas of the facility.
According to Lester, the view expressed by panel members was that Nelson had limited
exposure to other areas of the plant, as the Specialty Chemical area operated, in the words of
Stargardt, “somewhat on an island in that plant.”

Lester testified that she agreed with the decision to eliminate Nelson. Although she had
rated Nelson highly after her interview, she gleaned from the discussion that as an area trainer
Nelson had exhibited a “lack of strong leadership involvement on the trainers’ team” and had
failed to “step up in the activities of the trainers’ group, as a whole, to take on additional projects
and responsibilities.” This was of some concern to Lester. She attributed comments along this
line to Stargardt, the previous incumbent in the lead trainer position. Lester testified that she
“highly” valued Stargardt’s opinion. Lester did not, however, believe that Stargardt made these
comments for the purpose of eliminating Nelson. Rather, “he was just sharing what he had
experienced with her,” but it made an impact on Lester. Also part of the discussion was the
feeling that Nelson did not “volunteer[ ] as quickly” for assignments and projects as an area
leader, a comment that Lester attributed to Stargardt.18 Lester thought that in the interview
Nelson “undersold her skills” and was obviously nervous in a way that affected “her ability to
effectively respond to the questions.”

Brinkley cited as points in favor of Nelson that “she did have a history with training,
because she was a trainer. She did have a relationship with the trainers, so she knew their
personalities.” But, like Lester, he noted that “most of her experience was in one particular part
of the plant” and that when asked “would she be able to promote the training program in
Morristown, which is our [corporate] headquarters and all, and she indicated that she would be

17Lester did not recall using the checkmarks. In later testimony she testified that it was
possible that she followed this procedure. The weight of the panel members’ testimony
convinces me that this was the process used. This confusion does not reflect adversely on
Lester’s credibility generally. To the contrary, I found Lester a compelling witness, careful not to
overstate, honestly seeking to recollect events, and unwilling to be led into statements that she
did not believe to be accurate even if they were suggested in support of Respondents’ positions.

18Stargardt did not recall making comments to this effect during the panel’s discussion. He
did recall that he agreed with a comment made by Brinkley that Nelson did not participate as
often as the other trainers in opportunities for plant-wide training events.

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uncomfortable with that type of setting.” Brinkley also, vaguely, recalled Stargardt making a
statement along the lines of Nelson not always “stepping up” in her role as an area trainer.19

Voigt did not recall how he voted. He expressed the view that Ashby would not be an
effective training leader. He vaguely recalled the discussion regarding Nelson. He recalled
discussion that her experience as a trainer would allow her to “hit the ground running” and that
she was in the upper half of the candidates in terms of computer skills. But he also recalled
“concerns that, because her experience was isolated to that area [Specialty Chemicals], she
had not had as much interaction with rest of the plant, both on an hourly and a salary level.
There was some concern as to whether she could adequately handle or manage the duties that
required plant-wide responsibility.”

Stargardt had voted to eliminate Hill, believing him to be the weakest of the four
candidates. Stargardt spoke in favor of Ashby and Nelson prior to the voting. He felt they were
the two strongest candidates, for different reasons. Stargardt believed that based on her years
in the training program Nelson could hit “the ground running.” In Stargardt’s view, Nelson’s
shortcoming was that she lacked “the technical expertise to really move the program to the next
level.” He also believed that Nelson’s “knowledge of other areas of the plant was . . . a little
weaker than some of the other candidates.” Stargardt favorite candidate, even more than
Nelson, was Ashby. In Stargardt’s opinion, Ashby would take longer to learn enough about the
training program to maintain it as it existed “but he had the technical expertise to take it to a
level that I personally couldn’t take it to and it felt like that was the next step for the program to
go to.” Neither of Stargardt’s favored candidates survived the cut. After Nelson was eliminated,
Stargardt told the panel that he “didn’t like what was happening here.” Asked at the trial what
he meant, Stargardt indicated that

“I felt that I no longer had a vote, because I didn’t have confidence in the other
two. I just felt like there were two candidates that, that were [a] good fit. I’m not
saying that the other candidates weren’t capable of getting there I just felt like we
had a lot longer learning curve to get them there. You know, I was trying to look
out for the best interest of the program, you know, to either pick up where you
were and maintain and have, you know, maybe a little slower growth but at least
the possibility for growth, or you could, you know, make an initial investment in
someone who eventually could take a product to another level. I didn't feel like
Michial Hill brought any of that to the table and I felt like Patty, she was another
one that would -- with the initial investment, to get her up to speed with the
program, would then offer, you know, possible—the possibility of slow growth.”

After Ashby was eliminated, Stargardt again voted to eliminate Hill, and, in the final vote he
voted for Grigg over Hill.

McGuire’s first choice of the four for elimination was Hill. When Ashby was eliminated,
McGuire chose Hill again for elimination. Although he did not vote to eliminate Nelson, McGuire
testified that his faith in Nelson changed over the course of the interview process. Consistent
with what he told Nelson immediately after her interview, Nelson’s interview made an impact on
him. According to McGuire, “I felt like we were dragging information out of her, which we
already knew she knew, at least the union people knew, because they've known her for a long

19Stargardt attributed this comment to Brinkley, but admitted that he agreed with Brinkley
that Nelson “did not step up as often as some of the other area trainers.”

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time and her being an area trainer, we were—I, personally, was expecting a lot more
salesmanship to get it across, to really blow us away and sell it to the point how bad she should
have the—why she should have the job.” McGuire also corroborated that Stargardt had offered
statements during the committee’s discussions, backed up by Brinkley, indicating that “there
were times that he felt that she could've been a little bit more assertive and stepped up to help
lead things and she did not and . . . that concerned them both.”

During the trial, each member of the selection panel was asked whether Nelson’s
relationship to Alan Nelson was discussed by the panel. With one exception, each panel
member categorically denied that Alan Nelson’s name came up at all during any of the
meetings. According to McGuire and Stargardt, Alan Nelson’s name did not come up. Flowers
did not recall any discussion of him. Lester testified that Mr. Nelson’s name was not mentioned,
“not even once.” The exception to this unanimity was panel member Voigt, who testified that “at
some point,” probably in “the initial preparation meeting” it was brought up that Tracey Nelson
was married to Alan Nelson. Voigt testified that he couldn’t recall the point of the discussion or
who raised it, and he stated that “it didn't last very long, as I recall.” Voigt also ventured that
Alan Nelson’s marriage to Tracey Nelson did not affect his assessment of her for the lead
trainer position and he was not aware that it was a factor for anyone else. Based on all of this
testimony, it can be concluded that Alan Nelson’s union activity was not an express factor in the
committee’s discussions. If his relationship to Tracey Nelson was mentioned at all, as Voigt
claims, it was a bare reference to the fact of the relationship.20

In eliminating the third and fourth applicant, Lester, who was marking the board with
panel members’ choices, weighed in last with the result that her choice was decisive. Brinkley
objected to this after it happened twice and suggested that the panel members vote by secret

20I assume without deciding, for purposes of discussion in this case, that Voigt’s recollection
is correct and that Nelson’s marriage was mentioned once during an initial panel meeting. I do
not think it makes a difference to the outcome of this case. In fact, I doubt Voigt’s recollection.
My assessment of the panel members as witnesses was uniformly positive, with the exception,
as discussed above, that I believe Brinkley was determined to remember nothing that he
perceived to be controversial. But none of the five panel members recalled any reference to
Alan Nelson in the committee meetings and several were certain that that there was none. I
reject any claim that they were colluding to hide this fact. There is no evidence for it and
nothing suggested to me that their credibility was suspect here. It is possible that the bare
reference that Voigt vaguely recalled escaped notice. It is also possible that Voigt is confused
and remembering references to Alan Nelson that were made by employees in the area he
supervised, in which hourly employees told him they “felt they knew who was going to get the
job already and that it would be Tracey Nelson, because she’s Alan Nelson’s wife and he was
influential.” In this regard it is worth noting that although nearly every panel member had some
recollection at odds with the weight of testimony and evidence, Voigt confused a large number
of details. He testified that Grigg was an area trainer, he testified that the panel had input into
the creation of the evaluation forms, he claimed that panel members were showed the
document in evidence as Jt. Exh. 1, he contended that during panel discussions checkmarks
were placed on the eraser board to indicate the candidate panel members wanted to support.
All of this is wrong. While I believe Voigt was testifying honestly, his recollection was the most
unreliable of the panel members, and his tentative assertion that Alan Nelson was mentioned at
one point in the meetings—an assertion at odds with all other panel members—could well have
been wrong too. If I had to resolve this credibility dispute I would conclude that Voigt was
mistaken and resolve it against Voigt. But, because I do not believe it affects the outcome of
this case, I am going to assume that Voigt’s testimony on this point is correct.

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ballot for their final choice between the remaining two and the suggestion was accepted. Lester
found some paper to use as ballots. After more discussion each panel member wrote down
their first choice. Lester collected the votes and reported the results to the committee. The
result was five votes for Grigg and one vote for Hill. Lester indicated that she voted for Hill.

In Lester’s view, the panel chose Grigg because she had very broad plant knowledge
and had been very effective in her work. She had good interpersonal skills and was very
organized. She described Grigg as being able to “clearly articulate how the plant runs” and
“knowledgeable about the history and labor relations” of the facility. In particular, Lester
considered Grigg’s knowledge of the overall plant operations to be an important requirement for
the lead trainer job. She considered Grigg effective in her work based on what panel members
knew of her work as a lab technician and her work carrying out union responsibilities. Grigg’s
work in the lab gave her access to chemicals throughout the plant and broadened her
experience and knowledge of the plant. Lester thought Grigg’s union activities were relevant
“[b]ecause as a union leader, she does have strong leadership skills which this job would entail.
She has broad knowledge of the employees and the issues regarding training progression and
would come with ideas of how to improve that. She's well versed with management and this job
would require a person who could deal effectively with hourly population as well as
management.” In addition, her longtime service as an emergency medical technician for the
facility’s safety brigade gave her experience and access to areas of the plant outside her
specific work area. In this capacity Grigg drove an ambulance and responded to emergencies
in the plant 3 to 4 times a year.

McGuire indicated that Grigg’s extensive service on various committees, both pursuant
to union positions and service unrelated to the union, was a point in Grigg’s favor as it
demonstrated leadership skills. In addition to various union positions, McGuire noted Grigg’s
service as an emergency medical technician for the facility’s safety brigade. In addition, in the
past Grigg had headed the plant’s United Way committee.

Brinkley agreed that Grigg had a rounded knowledge of the plant based on where she
worked in the lab, her service on the safety brigade, and having taught classes in shop steward
school. He thought her computer skills were just average, “nothing spectacular” and that would
be something she would have to learn. But in Brinkley’s view, “the committee all agreed by a
large majority that Patty was—it's not so much qualifications, but its potential and other things --
had the best ability to take the training program to where it needed to go in the future.”

Stargardt, who voted for Grigg after Ashby and Nelson, his first and second favorite
choices were eliminated, agreed that Grigg had lots of experience in the plant, was personable,
was capable in the laboratory, and had good relationships with the Union and management.

Panel members were asked whether and to what extent Grigg’s union activities
contributed to their decision. Many of the panel (certainly the union members but also Lester)
had worked with Grigg on labor-management activities, and relied on these interactions to
inform their view of Grigg and her capabilities. Lester believed that Grigg “as a union leader,
she does have strong leadership skills which this job [lead trainer] would entail.” Panel
members believed that Grigg gained exposure to other areas of the plant because she traveled
there on union business. They believed that her experience in various union roles gave her
skills that would enable her to interact with management and hourly employees. All of these
types of skills and knowledge were considered by the panel to be relevant skills for performing
the lead trainer position. Stargardt denied that Grigg’s union activities were discussed as
evidence of her being a “go-getter.” Rather, he said, Grigg’s union background and activities
were cited as evidence that she “already had an established relationship with the company

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leadership that would be a benefit to her in the role” of lead trainer. Stargardt, who had been
the lead trainer for the past 10 years, noted that “its one of the few [bargaining unit] jobs where
you sit, sit somewhat in judgment of other union members, in that they—you can have someone
fail out of a program and be disqualified. So you have to have—you know, there's a fine line
and you know, it creates conflicts between the company and the union at times when you have
to go to work those out, and Patty had a relationship to where she could do that.” Brinkley,
when asked about whether Grigg’s union involvement was discussed by the committee as an
advantage, testified that “it was mentioned that she had taught some classes and those classes
were shop steward classes. I guess you could tie that to union involvement.”

Most panel members contended that any one of the top four candidates who remained in
contention after the October 11 could have satisfactorily performed the lead trainer position.
Brinkley indicated that “in my view, I felt that four of the eight candidates were qualified for the
position. . . . Unfortunately, it was only one position open.” As Voigt explained, “each one of
them had different strengths that they brought to the table, so it was not a—it was not as if one
of the four rose head and shoulders above the rest. So I think . . . any of the four probably
could've done the job. How well, you know, it's a tough decision.”

7. Events after the selection of Grigg

McGuire testified that at the beginning of the selection process, and on October 17, at its
completion, Lester told the committee that she needed approval from Human Resources
Director Graham Ross before asking the selected individual if she wanted the lead trainer
position. After Lester told McGuire that Ross had approved the selection of Grigg, McGuire
went to the lab and asked Grigg to come to the conference room so the committee could speak
with her.21 At that point Grigg was offered and accepted the position. Lester said that before
the Grigg selection was posted she would contact the remaining applicants and inform them.

As part of this process, Nelson was told to stop by Lester’s office. Lester informed
Nelson that she was not selected for the lead trainer position. Nelson asked Lester who was
more qualified and Lester said she would not reveal that at this time. However, Lester offered
that Nelson’s knowledge was too centrally focused on Specialty Chemicals area of the plant.

Although the notice of Grigg’s selection did not go out until October 20, the afternoon of
October 17 Alexander learned from Brinkley that Grigg had been selected by the committee.
Alexander agreed that he “confronted” Brinkley outside the building where a training class was
being taught and his first words to Brinkley were “how the hell did she get the job.” Brinkley
recalled that Alexander said that

he was very disappointed in me, that he thought, because I was on the selection
committee that I would ensure that Tracey Nelson got the position. He said

21McGuire’s testimony on this point was unrebutted and I credit his testimony that Lester told
the group this. In fact, Lester testified that she “felt like our recommendation would be the
selection” but that “[c]ertainly management was made aware prior to awarding the job.” Ross
denied that Lester (or anyone) asked him to approve the choice of Grigg. I suspect the
“approval” Lester relayed to McGuire was, as a practical matter, Ross’s failure to object when
Lester informed him of the panel’s choice. The issue of whether the panel “selected” the lead
trainer or merely “recommended” a candidate for Honeywell’s selection took on a life of its own
at the hearing, and the Respondents expended substantial effort advancing their competing
positions on this matter. As discussed, infra, I see no significance to this case in the debate.

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that—he made reference that he would quit the union and he said some words in
there about that and he also said that he would file Labor Board charges.

Alexander recalls telling Brinkley “how could that be possible, how could someone with (1) with
no background in training and (2) someone who had not only done things or had said things
adversely about the training program, but had said things adversely about the trainers, how
could [you] possibly allow her to get that job?” Brinkley described Alexander as “agitated and
highly ticked off.” Alexander described himself as “livid.” Brinkley explained the interview and
winnowing process and pointed out that “Tracey wasn’t in the last two to even vote on.”
Alexander’s response was to say “it was bullshit.” Alexander started to leave the plant and go
home but, as Alexander described it,

I was just so livid that she could've got the job. I turned around and went back to
the plant. I went to the HR department and initially, I was going to see Graham
Ross, who is HR manager. When I got there, I ran into Connie Lester first. I
asked where Graham was. I believe he was not there or he was in a meeting.
She asked me what the matter was. I told her that I was very upset that Patty
had got the job and I wanted to know what could possibly be going on. She
asked me please not to go to Graham, to come in and talk to her. I believe that
to be because Graham had her lead it. . . . So I went in—after she asked me to
come talk to her, I went in the office. I asked her the same thing I asked Brinkley.
In my opinion, she gave me a nonsense answer, something to the effect of well,
you know, Tracey was kind of nervous that day and you know, Patty has stood
up before—being her union involvement—she stood up before people before and
given presentations or that sort of thing. And I told her that was the biggest
bunch of crap I'd ever heard in my life, that I knew that Tracey had a great deal of
training background and that Patty had none, that Patty had been adverse to the
training program and that I was adamantly opposed to Patty getting the position
and at that point, I didn't know where I was going with that.

That was the end of the conversation. Alexander left the plant and went straight to
McGuire’s house. According to McGuire, when he answered his door, Alexander said “I want to
talk to you. You’re a common motherfucker. I want to talk to you. . . . [Y]ou and that goddamn
Brinkley, you all are common motherfuckers.” McGuire mentioned that there were children in
his house and suggested that they go outside in the back of the house. Once there Alexander
continued, stating, “I cannot believe this. I cannot understand why you all did this.” Alexander
stated that he was “madder at Steve Brinkley than I’m mad . . . at you—because he sold us out.”
At first McGuire told Alexander that he did not know what he was talking about, to which
Alexander responded “Patty got the job, you know she got the job . . . and there’s no way she
should’ve gotten that job over Tracey.” McGuire argued that the committee had recommended
Grigg and that the vote was five to one. Alexander responded that “I don’t care what the vote
was.” Alexander said, “I have a real problem with this . . . I don’t know if I will forgive you or
Brinkley for what you’ve done.” According to Alexander, he asked McGuire the same question
he asked Brinkley: “How is it possible Patty could’ve got the job . . . . Tracey has background in
it. Patty has none. Steve knew that Patty had said adverse things about the trainers and the
training program through some discussions we’ve had prior to that.” McGuire said that
Alexander “didn’t understand what we did.” Alexander stated, “Tracey should've gotten that job,
she didn't get that job and I may file Labor Board charges and I -- you know, I may even quit the
union over this . . . [and] I probably will.” Alexander said “I’m totally disappointed in this union,
I’m totally disappointed in you. I’m really mad at you and Steve Brinkley and I feel like you sold
us out.”

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Alexander testified that McGuire “told me he made the selection based on what he
thought was best for our local.”22

The discussion with McGuire ended when his wife came outside and said “Joe, you're
being a little loud. You probably ought to calm down.” Alexander said he was mad and “it’s
going to be a while if I calm down.” According to McGuire, Alexander said, “I'm sure at some
point I'll calm down but I'm not calming down right now.” At that point, McGuire’s wife
suggested that “well, maybe you ought to go home.” Alexander left.

After the decision to award the jobs there was a meeting (and perhaps two, the record is
unclear) at which Brinkley explained to the trainers the process that the committee followed.
Brinkley explained about the evaluations, the elimination of the bottom four candidates at once
and then the process by which the remaining three were eliminated. Grigg was present for at
least one of these meetings. Alexander told Grigg that he did not believe she deserved the job
and that “[h]ad I thought that there was any chance she could win the job over a trainer, I would
not have gotten off the committee and . . . that because of things that she said about us and
because of her lack of experience, that she didn’t deserve the job.”

At an unspecified point in time, Alexander suggested to Nelson that she should file a
charge with the Board, and suggested to her that he might do so himself.23 After the charges
were filed McGuire asked Alan Nelson about the charges. According to McGuire’s unrebutted
testimony, Alan Nelson told McGuire that “if anybody else but Patty had gotten the job, the
charges probably would not have been filed.” Nelson explained that “Tracey being a trainer was
more qualified and should've gotten the job, and that Tracey was embarrassed because she felt
she was more qualified than Patty.” Alan Nelson asked if the committee had considered all the
factors and McGuire defended the committee’s decision.

22McGuire did not deny this and I accept that it was said. However, I do not accept that
McGuire stated “that the candidate who was selected was selected because she had the best
interest of the union at heart.” This somewhat different statement was apparently included in
Alexander’s affidavit but notwithstanding counsel for the General Counsel’s attempt to refresh
Alexander’s memory, at trial Alexander did not remember it that way, even when pressed, and
he finally stated only that “[i]f I said that in my affidavit, then that's what I meant.” Alexander
may have meant to say it in his affidavit, but that does not mean McGuire said it, and I believe
that Alexander trial testimony was more accurate than his affidavit, which contained a number of
statements that appear to have been motivated by anger and from which he backed away at
trial.

23Alexander denied this but I credit Nelson’s testimony. Under questioning by her own
counsel Nelson agreed that Alexander “told her” to file a Board charge. On cross-examination
Nelson became less sure and after considering the matter indicated that Alexander said she
“should” file a Board charge. As noted, supra, Nelson was a credible witness, if somewhat
biased in her interpretation of events, but I do not believe she would make this up. On the other
hand, Alexander referenced the possibility of filing Board charges when he talked to McGuire
(though he denied that as well), and openly discussed at work that if Grigg was chosen for the
lead trainer position “he would get at the union.” I do not think Alexander wanted to admit any
responsibility for the filing of the charge. I credit Nelson on this point.

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B. Discussion and Analysis

In this case the General Counsel alleges that the selection process for the lead trainer
position was discriminatorily tainted against Nelson due to her husband’s union activity and in
favor of Grigg because of her activity on behalf of Respondent Union.

Before turning to the substance of these allegations, I note some threshold issues raised
by the Union. A constituent part of the General Counsel’s allegations is that the Respondents
are each liable, under varying provisions of the Act, for the actions of the joint selection
committee. The Union contends that it is not liable for the actions of the joint selection
committee, or any of its members, as the Union contends that its members did not participate on
the committee on behalf of the Union. In addition, the Union contends that the General
Counsel’s case must be dismissed because Nelson did not exhaust her contractual remedies by
filing a grievance under the collective-bargaining agreement.

Given my resolution of the case, I need not reach these defenses, but I note that were I
to rule on these issues I would reject them. The selection committee was established by the
Union and Honeywell pursuant to the collective bargaining agreement for the purpose of
selecting (or, as discussed below, in the Union’s view, recommending) a new lead trainer. Such
an endeavor—the vetting and consideration of employees for a bargaining unit position—is
obviously a duty that constitutes a mandatory subject of bargaining and constitutes “collective
bargaining duties.” IBEW Local 429, 347 NLRB No. 46, slip op. at 1–3 (2006) (joint
apprenticeship training committee established pursuant to collective-bargaining agreement was
agent of union and employer); Plumbers Local 375 (Mechanical Contractors), 228 NLRB 1191,
1195 (1977) (joint apprenticeship training committee was agent of union and employer which
jointly created it through their collective-bargaining agreement). Indeed, unlike the joint
apprenticeship committees that the Board found to be agents of the unions and employers in
the above cited cases, the joint selection committee here exists without even a modicum of
organizational independence from the Respondents. The selection committee has no bylaws,
no trust agreement, no fiduciary obligations, no funds earmarked for it, no permanency, and no
employees. Its members serve at the pleasure of the contracting parties, Honeywell and the
Union. Thus, the selection committee does not even have a pretense of separate organizational
status from Respondents. The fact that Union President McGuire, in his capacity as local union
president, selected himself and two other union officers to sit on the committee, only adds to the
point that the union-chosen selection committee members acted as agents of the Union.
Indeed, McGuire attempted to calm Alexander’s anger at the selection by telling him that “he
made the selection based on what he thought was best for [the] local.” Obviously, McGuire
served on the committee in his capacity as local union president. Both Respondents through
their separate representatives on the selection committee “not only knew of, but actually
effectuated” the selection committee’s conduct. Iron Workers Local 15 (Associated General
Contractors), 298 NLRB 445 fn. 2 and 462–463 (1990), enf. denied in part and remanded in
part, 929 F.2d 910 (2d Cir. 1991). Both Respondents are liable for the selection panel’s
conduct.

It makes no difference to the question of Union liability whether the selection committee
“selected” the next lead trainer or merely “recommended” a candidate for the position that
Honeywell ultimately chose. At trial Honeywell and the Union expended significant effort
offering evidence and contractual interpretations to address this issue, but it is a question I need
not resolve. As explained, supra, the Union (along with the Employer) bears responsibility for
the conduct of the selection committee. Whether that committee was directly responsible for
causing unlawful discrimination by choosing the new lead trainer position, or merely

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recommended the new lead trainer to Honeywell for discriminatory motives, the same violation
of Section 8(b)(2) would be established. A union’s mere suggestion that an employer unlawfully
discriminate against an employee is sufficient to violate Section 8(b)(2). Laborers Local 1184
(Nicholson Rodio), 332 NLRB 1292, 1296 (2000); Avon Roofing & Sheet Metal, 312 NLRB 499
(1993).

Finally, the Union’s exhaustion defense is untenable. It suffers from many defects. For
one, the contract does not appear to prohibit discrimination based on union activity, and thus, it
is arguable that there is no contractual remedy to exhaust. Even if it did, there is no authority for
the proposition that an employee must exhaust contractual protection from discrimination before
seeking redress from the Board for violations of Section 8(a)(1), (3) or 8(b)(2) of the Act. There
are, of course, instances in which the Board will defer to pending contractual grievance and
arbitration processes,24 but this is not such an instance. Nelson said it best. Asked why she did
not file a grievance over the dispute, she explained: “Because three of the executive board
members were involved in this.” The Board will not defer “where the interests of the union
which might be expected to represent the employee filing the unfair labor practice charge are
adverse to those of the employee.” United Technologies, 268 NLRB at 560.

I now turn to the substance of the allegations against Respondents.

1. 8(a)(1) and (3) allegations against Honeywell

Section 8(a)(3) provides, in pertinent part, that “[i]t shall be an unfair labor practice for an
employer . . .by discrimination in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor organization.” As any
conduct found to be a violation of Section 8(a)(3) would also interfere with employees' Section 7
rights, any violation of Section 8(a)(3) is also a derivative violation of Section 8(a)(1) of the Act.
Chinese Daily News, 346 NLRB No. 81, slip op. at 28 (2006).

In accordance with this statutory mandate, the Board has recognized that it is violative of
Section 8(a)(3) of the Act for an employer to discriminate against an employee because of the
union activity of the employee’s spouse. Tasty Baking Co., 330 NLRB 560 (2000), enfd. 254
F.3d 114 (D.C. Cir. 2001); Mission Valley Mills, 225 NLRB 442, 443 (1976), enf’d. mem. 559
F.2d 188 (D.C. Cir. 1977). Also pertinent to the General Counsel’s case here, it is unlawful to
discriminate in favor of an employee by promoting the employee over others, in disregard of
existing selection criteria, as an act of favoritism to a union. General Motors Corp., 347 NLRB
No. 67 (2006). To allow such favoritism “would undoubtedly result in the employees viewing the
Union’s exercise of power as a message that for them to have a like opportunity they would
have to become more active Union members, and act in a way that would cause the Union and
management to favor them over other employees.” Id. at slip. op. 13–14.

The Supreme Court-approved analysis in 8(a)(1) and (3) cases turning on employer
motivation was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). See, NLRB v. Transportation Mgt. Corp., 462 U.S.
393, 395 (1983) (approving Wright-Line analysis). The Board applies the Wright Line analysis
to motivation-based cases involving allegations of discrimination in the promotion of employees.
General Motors Corp., 347 NLRB No. 67 (2006).

24See, United Technologies Corp., 268 NLRB 557 (1984); Collyer Insulated Wire, 192
NLRB 837 (1971).

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In Wright Line the Board determined that the General Counsel carries the burden of
persuading by a preponderance of the evidence that protected conduct was a motivating factor,
in whole or in part, for the employer’s adverse employment action. Proof of such discriminatory
motivation can be based on direct evidence or can be inferred from circumstantial evidence
based on the record as a whole. Robert Orr/Sysco Food Services, 343 NLRB No. 123, slip op.
at 2 (2004); enfd. 184 Fed. Appx. 476 (2006); Embassy Vacation Resorts, 340 NLRB 846, 848
(2003). Such a showing proves a violation of the Act subject to the following affirmative defense
available to the employer: the employer, even if it fails to meet or neutralize the General
Counsel’s showing, can avoid the finding that it violated the Act by demonstrating by a
preponderance of the evidence that the same employment action would have taken place even
in the absence of the protected conduct. NLRB v. Transportation Mgt., 462 U.S. 393, 395
(1983); Carpenter Technology Corp., 346 NLRB No. 73, slip op. at 8 (2006).

Turning first to General Counsel’s initial burden, to carry his burden the General Counsel
must show “’(1) that the employee was engaged in protected activity, (2) that the employer was
aware of the activity, and (3) that the activity was a substantial or motivating reason for the
employer’s action.’” Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Moldings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994)).

Applying Wright Line to the General Counsel’s case, it is clear that Nelson’s husband
and Grigg were engaged in union activity, and that Honeywell was aware of this activity.
However, I do not believe that the General Counsel can sustain the third part of his initial Wright
Line burden: the record does not support the claim that either Mr. Nelson or Grigg’s union
activity, or any type of illegitimate favoritism, was a substantial or motivating factor in the lead
trainer selection process at issue in this case. Indeed, to put a more precise point on it, I do not
agree that the evidence supports the General Counsel’s position that the selection process was
tainted by discriminatory animus in whole or in part.

In considering the issue it is worthwhile to begin by recognizing the many factors that do
not provide support for the General Counsel’s case. First of all, the outcome of the selection
process does not provide evidence of discrimination. In that regard, it is significant that,

“[the] General Counsel does not suggest that had the process been conducted in
a fair, nondiscriminatory manner that Ms. Nelson would necessarily have been
awarded the hourly lead trainer position. . . . [or] that had the process been
conducted in a fair, nondiscriminatory manner that Ms. Grigg necessarily would
not have been the candidate chosen.” (GC Br. at 20–21).

I do not suggest that such evidence is required, but the inability of the Government to
even try to prove that a less qualified person was selected for the lead trainer position reflects
the absence of evidence that the panel’s choice of Grigg to be lead trainer—in terms of merit—
is indefensible, strains credulity, or otherwise provides a basis to infer that the process was
discriminatory. Thus, this is not a case, such as that in General Motors Corp., 347 NLRB No.
67, slip op. at 1, where the record demonstrated that unchosen applicants were “’head and
shoulders’ superior” to the unlawfully favored candidates chosen for a position. In General
Motors, the indefensibility of the outcome of the selection process provided evidence that
discrimination was afoot. Here, by contrast, as panel member Voigt explained, regarding the
top four applicants, “it was not as if one of the four rose head and shoulders above the rest.”

Of course, not everyone agrees with this. Nelson and Alexander firmly believe that
Nelson was the most qualified for the position, largely because of her experience as an area

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trainer. But neither of them was on the panel. On the selection panel there was a multiplicity of
favorite candidates, and the preferences cut across the labor-management divide and changed
during the course of the process. Flowers favored Thompson, who was eliminated in the initial
cut. Stargardt (who served as lead trainer without previously holding the area trainer position)
favored Ashby because of his technical skills, but the panel eliminated Ashby first among the
top four because of the importance they attached to interpersonal skills, a quality all agree that
Grigg had. Brinkley grew to like Hill, but in the end voted for Grigg. Stargardt and McGuire
opposed Hill consistently. Both Grigg and Nelson had significant, diverse, but “soft” support by
various members of the committee. Only Lester originally ranked Nelson first with Grigg a close
second, but she became less certain about Nelson through the discussion process, and
perhaps, less certain about Grigg, as she voted for Hill over Grigg in the final vote. Voigt/Sykes
ranked Nelson first, but that was Sykes’ ratings—Voigt, who was the voting member of the
panel did not feel the same way. None of the remaining four ranked Nelson first, although she
was a strong second for Stargardt and Flowers.

The diversity of viewpoints is the point. Reasonable people can disagree about what
qualities were most important for the lead trainer position and which candidate was best for the
job. But, as the General Counsel implicitly concedes, it is not reasonable to contend that either
the selection of Grigg or the failure to select Nelson provides evidence of discriminatory motive.
The lead trainer position called on so many different types of skills that it is not possible for an
objective, disinterested observer to conclude that Nelson’s area trainer experience made her
more qualified than Grigg. The choice of Grigg, who by all accounts had many qualities and
skills that were viewed by the committee as important for the lead trainer position, is not
evidence of discrimination.

Second, in addition to the outcome of the panel process, the actual conduct of the panel
members in the selection process does not support the General Counsel’s case. As I have
found, by all credited evidence, the members of the selection process conducted themselves—
by all external appearances—with non-partisanship as to any particular candidate, and a
devotion to the process that is commendable. Each committee member (with the exception of
Sykes) testified about the process and his or her role. They impressed me as six individuals
who took their task seriously and worked to reach a conclusion as to the best candidate for the
position. That they had different likes and dislikes about the candidates is a normal feature of
any selection undertaken by a committee. Indeed, that is the point of having a committee
staffed by a range of interested individuals, with a variety of backgrounds and viewpoints,
collaboratively making the decision. As discussed, supra, the evidence demonstrates, at most,
that during the entire selection process there was one vague fleeting reference to Mr. Nelson
being Tracey’s Nelson’s spouse. There is no evidence that the committee members’
discussions included reference to Mr. Nelson’s union activity or whether, if Ms. Nelson received
the lead trainer position, her relationship with Mr. Nelson would be good or bad for the Union or
Honeywell. Conversely, Grigg’s union activity was discussed only incidental to and in relation to
the skills she possessed—often learned or demonstrated through union activities—that would
equip her to perform the lead trainer position. Notably, the General Counsel does not argue that
the selection committee’s recognition and discussion of these skills was evidence of
discrimination. It would not be a sound argument for the General Counsel to make. The skills
noted by the committee could have been developed by Grigg or the other candidates in a host
of ways. There is no evidence that similar (or any) attributes of others were undervalued or not
considered because union experience was a favored source of skills. In short, there is no
evidence based on the way the selection committee members conducted themselves that
discriminatory animus tainted their decision making.

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Third, not only the panel members’ conduct, but the process they utilized bore no
outward indicia of discriminatory intent. In other words, the process was not suspicious viewed
on its own terms. In fact, by all evidence the process was conducted in a deliberate and careful
manner. Every applicant was interviewed. Care was taken to ask the same questions of each
candidate in the interviews. Each candidate was discussed openly, and the more promising
candidates (including Grigg and Nelson) were discussed more than once. The committee’s
discussions were devoted, appropriately, to consideration of the strengths and weaknesses of
the candidates with regard to attributes considered by the panel to be most important to
performance of the lead trainer position.25

Another basis for inferring discrimination that the Board often looks to is shifting
rationales by a respondent for its conduct. Here, there is no evidence that members of the
selection committee offering shifting rationales for their actions. For instance, McGuire
explained his disappointment in Nelson’s interview to Nelson immediately after her interview
and maintained at trial that this helped to diminish his support for her application. Stargardt,
who continued to support Nelson, told her the same thing. Similarly, Lester’s testimony at trial
that Nelson’s lack of plant-wide experience was a consideration in the decision was the same
rationale offered to Nelson when Lester informed Nelson that she was not chosen. The concern
that Nelson did not maximize efforts as an area leader was a theme touched on by Lester,
Brinkley, and Stargardt. I recognize that Brinkley and Lester attributed the comment to
Stargardt, who in turn testified that he simply seconded a comment made by Brinkley, but there
is no doubt that the theme was introduced and considered during discussions.

Fifth, there is also no evidence of discriminatory intent to be found in the composition of
or formation of the committee. The fact that McGuire chose only union officers, including
himself to sit on the committee adds weight to my conclusion that the panel members acted as

25Certainly I do not believe that there is evidence of a skewed process in the panel’s failure
to award Nelson the lead trainer position based on the scoring of the evaluation sheets
completed for each applicant. Pursuant to Lester’s calculations Nelson had the most “points,”
followed by Grigg, Ashby, and Hill. It is neither suspicious nor unreasonable that the panel
chose not to award Nelson the position based on this ranking. There was no agreement or
even anticipation by the panel or applicants that the evaluation sheets would be used in such a
manner. Nor is there any reason they should have been. The relative rankings are exceedingly
arbitrary. Certain panel members were tougher overall, giving out far less points than other
panel members. Some panel members distinguished between candidates while others scored
all candidates close to one another. Moreover, Nelson’s high ranking was, in part, the result of
Syke’s substitution for Voigt on the day that Thompson and Nelson were interviewed. Sykes
gave both Nelson and Thompson more points than Voigt gave any other candidate. It is, of
course, indeterminable how Voigt would have reacted to Thompson or Nelson, but it is still
further reason that the scores do not represent an objective measure. Finally, even on its own
terms, the panel rankings demonstrate the diversity of opinion among the panel. Five of the
eight candidates were most highly ranked by a panel member. Only Nelson was most highly
ranked by two panel members, but one was Sykes, who did not have a vote. So only one voting
panel member of six gave Nelson their top score. In my view it is not suspicious in the slightest
that the panel chose not to view the evaluation sheets as providing anything other than a very
rough aggregation of the panel’s response to each applicant.

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agents of the Union, but there is no evidence that the choice of panelists was motivated by or
caused discrimination against Nelson or in favor of Grigg, or for or against anyone else.26

It is true, as set forth above, that McGuire demanded Alexander’s resignation from the
committee because Alexander was committed to opposing Grigg and supporting Nelson for the
position. There can be little doubt that Nelson would have benefited from Alexander’s
participation on the selection committee. But the process would have suffered. There was
every reason for McGuire to have believed then—and Alexander’s trial testimony confirmed it—
that Alexander would not have undertaken the selection process with an open mind. Removal
of Alexander from the selection panel surely was warranted by any observer concerned with
protecting the integrity of the selection process.

I do not intend to suggest that any of the above factors—each of which the General
Counsel concedes or does not argue—are required in order for there to be a finding that
unlawful animus tainted the selection committee’s process. However, when juxtaposed with the
limited evidence the General Counsel offers to support his position, I think the conclusion that
discriminatory animus motivated the panel is unsustainable.

The General Counsel’s position that the selection process was tainted by unlawful
discrimination is based on three points. First, Brinkley and Alexander’s comments to Nelson,
and with each other, prior to the selection process, in which there was discussion that her
marriage to Alan Nelson could hinder her chances for the lead trainer position. Second,
McGuire’s comment to Alexander that his choice for lead trainer was based on what was best
for the local union. Third, what the General Counsel refers to as “indirect evidence of the
tainted process” (GC Brief at 25), which consists of arguments about credibility and a review of
inconsistencies in panel members’ testimony.

Of the three points, the last two are without significance. The General Counsel sees
animus in McGuire’s comment to the enraged Alexander that “he made the selection based on
what he thought was best for [the] local.” But having contended, correctly in my view, that in
serving on the selection panel McGuire was acting on behalf of the Union, I do not see how the
General Counsel can assume the worst just because, in acting on behalf of the Union, McGuire
admits to acting in the Union’s interest. McGuire’s comment does add weight to the conclusion
that McGuire was acting as an agent for the Union when he sat on the selection committee. It
does not, however, evidence that he was motivated by invidious discrimination. The premise of
the General Counsel’s contention—that the union interest acted on by McGuire in the selection
process was an unlawfully discriminatory one—cannot be assumed, particularly in this context.
The Union and McGuire’s interest in and deep involvement with the training program go back
many years. Although divided over who should be the next training leader, it was obvious to me
that McGuire, Brinkley, and Alexander all care very much about the integrity and continued
success of the training program. It is unwarranted to assume that what McGuire thought was
“best for the local” was to discriminate for or against a candidate based on union activity. As I
have found, based on their outward conduct, the goal of the panel members, including the union

26The evaluation sheets completed by union panel members are interesting in this regard.
Flowers rated Nelson significantly higher than Grigg (31 points higher). McGuire rated Grigg
significantly higher than Nelson (35 points higher). Brinkley rated Grigg only 11 points higher
than Nelson. Brinkley rated Hill first, Grigg 2nd and Nelson 3rd. Flowers rated Nelson 2nd, but
Grigg 6th. McGuire rated Grigg first and Nelson 5th. Neither a preexisting intent to install Grigg
nor reject Nelson can be gleaned from such responses.

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panel members, was to select the best candidate for lead trainer, a result that would enhance
the skills, safety, and promotional opportunities for the union employees being trained. That is
an entirely legitimate union interest. To this I would add that the context of the comment—a
local union president verbally assaulted at home and trying to assuage a “livid” local union vice
president—undermines the import of the comment. After attempting to explain the selection
process failed to quell Alexander’s anger, pleading their common union interest might have
seemed the only theme that could have calmed Alexander. It seems to me to overreach to
make too much of a comment served up in such circumstances. 27

On brief, the General Counsel also cites to what he calls “indirect evidence” of
discriminatory motivation for the selection committee’s process. (GC Brief at 25-31). But this
“evidence” is just a laundry list of arguments about the relative credibility of various witnesses
and discrepancies in the panel members’ recounting of the selection process, all of which I have
considered, supra. I cannot accept, in the circumstances here, that witness discrepancies over
issues such as whether the evaluation forms were composed before or after the first committee
discussion, whether the scoring from the forms was the sole or merely one factor in the
elimination of the first four candidates, whether checkmarks were used to signify the elimination
of two candidates, or whether Alan Nelson’s name was mentioned once briefly or not at all
during the selection process, are a basis for inferring discrimination.

At bottom, the General Counsel’s case rests on Brinkley and Alexander’s comments to
Nelson, and to each other, suggesting that her husband’s union activity could hinder her ability
to obtain the lead trainer position. However, particularly in light of all that the evidence did show
about the selection process, the comments do not provide a basis to infer unlawful
discrimination by the selection committee or Respondents in selecting the lead trainer.

Brinkley and Alexander’s comments to Nelson, and their discussion with one another, all
of which occurred before the selection process was underway, were not expressions of animus
towards Nelson’s candidacy. They were not attempting to dissuade Nelson from seeking the
lead trainer job. Nor were they passing on any knowledge that they had heard that the Union or
Honeywell planned to sabotage or discount Nelson’s lead trainer ambitions on account of her
husband’s union activity. It is not insignificant that Brinkley and Alexander’s conversation
regarding whether they or the Union should be concerned about Nelson being a lead trainer
because of her husband did not impede them from reaching the conclusion that Nelson should
be the lead trainer, to the exclusion of any other candidate, a view that Alexander vociferously
maintains to this day and that Brinkley was in accord with until the selection process was
underway. Alexander and Brinkley’s discussions with one another were not expressions of
animus towards Nelson, they were part of a campaign by Alexander to ensure that his fellow
area trainer Brinkley supported area trainer Nelson’s candidacy. In fact, Alexander believed that
he had been successful and that he could count on Brinkley to “carry his water” and weight the
panel in favor of Nelson. But, as Alexander testified, once Brinkley ‘began interviews, what we
had talked about prior, he changed.” In other words, Brinkley predisposition towards Nelson
shifted during the interview process. This change is not evidence of discriminatory motive or
duplicity, but rather, provides evidence that Brinkley engaged in the process with an open mind.
It should also not be forgotten that Brinkley went out of his way to assist Nelson in the interview
process, with more enthusiasm than the other candidates would have liked. In response to

27On brief, the General Counsel conflates McGuire’s statement that he acted in the best
interests of the union with the alleged statement that he chose Grigg “because she had the best
interest of the union at heart.” The statements are not the same, and, as discussed, supra, I
reject the contention that McGuire made the latter statement.

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Nelson’s questioning of Brinkley about the interviews, Brinkley told Nelson precise questions to
prepare for and Nelson aced those questions to the extent that her knowledge was favorably
commented upon by a panel member. This extra helping hand to Nelson is hard to reconcile
with the theory that Brinkley bore unlawful animus towards Nelson’s candidacy.

At most Brinkley and Alexander’s comments suggest a potential reason—mooted only
by Brinkley and Alexander—that the Union or Honeywell might be reluctant to have Nelson as
the lead trainer. However, there is no evidence that this preselection “speculation” was a factor
advocated or taken into consideration by anyone who had any say in the lead trainer decision.
There is no evidence that the panel considered or was motivated by such sentiments. Of
course, it is impossible to know what unspoken, unexpressed motivation flickered in the hearts
of members of the selection panel. But there is no evidence—at all—that Nelson’s relationship
with her husband contributed to Grigg’s selection or Nelson’s nonselection for the position.
Indeed, there is no evidence that anyone on the panel, including Brinkley, held the unexpressed
belief that Nelson’s husband’s activism should be held against her bid. In these circumstances,
where the selection process has been found to be free of discernible irregularity, these
preselection comments cannot be the basis for inferring that the panel acted with discriminatory
animus. As I have found, while qualified, Nelson was not uniquely qualified for the lead trainer
position. Given the absence of evidence that would cast doubt on the selection process itself,
the logic of the General Counsel’s position reduces to the proposition that once Alexander and
Brinkley made their comments, the subsequent selection process necessarily must be found to
have been discriminatorily motivated if anyone but Nelson was selected or the lead trainer
position. Brinkley and Alexander’s comments cannot bear that much weight. The General
Counsel’s contention that the selection panel was tainted by discriminatory motives is based
exclusively on conjecture, suspicion and speculation that the motives for the selection
committee were the ones that Brinkley and Alexander speculated about with Nelson in the
spring and summer of 2005. “[B]ut conjecture, suspicion, speculation, and surmise are not an
adequate substitute for the requisite burden of proof necessary to substantiate the unlawful
discrimination allegations of the complaint.” Hod Carriers Local 341(Alaska Associated General
Contractors), 146 NLRB 1358, 1371 (1964).

At the most fundamental level, the difficulty with this case is that the narrative of
discrimination constructed in support of the case does not hold up. The evidence revealed a
different story, and one, I believe that placed Alexander, as much as Nelson, at center stage.
Alexander and Nelson both started from the sincere, but extraordinarily subjective premise that
as an area trainer Nelson was presumptively entitled to the lead trainer position. To this was
added Alexander’s adamant, but again, very subjective view that whatever else happened,
Grigg should not have the lead trainer position. Alexander’s view, which he stridently advanced
at every stage of the selection process—from when he first learned that Stargardt had vacated
the position to confronting Grigg at a trainer’s meeting after announcement of her selection—
meant that to Alexander and Nelson the failure to select Nelson for the position was, by itself,
evidence of something amiss in the selection process. What the evidence shows is that when
Alexander resigned from the selection panel, he believed that he could count on Brinkley to
push Nelson through. However, once engaged in the selection process, Brinkley did not remain
partial to the area trainer clique of which he, Alexander, and Nelson had long been a part. In
Alexander’s view, Brinkley “sold out” the area trainers. Alexander was, by his own description
“livid” and he set about creating the very controversy he claimed he wanted to avoid, angrily
confronting Lester, Brinkley, McGuire, and Grigg. He encouraged Nelson to file a charge and
then with Nelson, looked backwards in time and seized upon conversations they had with
Brinkley before the selection committee was formed to supply the explanation for what they
viewed as the injustice of Nelson not being selected for the lead trainer vacancy.

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As Alexander admitted, there is no evidence of collusion. Indeed, the record reveals no
animus toward Nelson. The animus in the record is Alexander’s, towards Grigg, not for reasons
the Act concerns itself with but for reasons relating his view of who the next lead trainer should
be and his anger over past criticisms of the training program by Grigg. Alexander’s view may or
may not have merit. But in terms of the Act the case is without merit.

b. 8(b)(2) allegations against the Union

Section 8(b)(2) of the Act states, in relevant part, that “[i]t shall be an unfair labor
practice for a labor organization or its agents . . . to cause or attempt to cause . . . an employer
to discriminate against an employee in violation of subsection (a)(3).”

As the statutory language suggests, to find a violation of section 8(b)(2) it is necessary to
prove not only that a union “cause[d] or attempt[ed] to cause” an employer to discriminate, but
further, that the employer discrimination sought or caused was the kind cognizable under
section 8(a)(3). NLRB v. Stage Employees IATSE Local 776, 303 F.2d 513, 519 (9th Cir.)
(citing Radio Officers v. NLRB, 347 U.S. 17, 53 (1954)), cert. denied 371 U.S. 826 (1962).

In this case, as I have found, Honeywell did not discriminate in violation of Section
8(a)(3) and therefore the Union did not cause such discrimination. Of course, it would be
equally violative of Section 8(b)(2) of the Act if the Union “attempted to cause” such
discrimination, but for the reasons discussed above, I do not believe the evidence demonstrates
that the Union “attempted to cause” Honeywell to discriminate. Neither its members’ actions on
the selection committee, nor any other conduct demonstrate an effort by the Union to cause
Honeywell to discriminate in violation of Section 8(a)(3).28

CONCLUSIONS OF LAW

1. Respondent Honeywell International Inc. is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.

2. Respondent International Chemical Workers Union Council of the United Food and
Commercial Workers Union, Local 591 C is a labor organization within the meaning
of Section 2(5) of the Act.

3. Respondents did not violate the Act as alleged in the complaint.

28On brief, counsel for the General Counsel contends that the Union violated its duty of fair
representation in violation of Section 8(b)(1)(A) by discriminating against Nelson and in favor of
Grigg in the panel selection process. While the complaint does not allege any such violation, if
it did, I would reject it, in accordance with the findings and reasoning in this decision.

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended29

ORDER

The consolidated complaint is dismissed.

Dated, Washington, D.C. December 26, 2006

____________________
David I. Goldman
Administrative Law Judge

29If 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.