Lampi LLC

National Labor Relations Board - Board Decisions

Nov 30, 1998

327 N.L.R.B. 222 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 222
Lampi LLC and International Brotherhood of Elec-
trical Workers, AFL–CIO, Local 558. Case 10–
CA–29531
November 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 17, 1998, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
Charging Party Union filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
Contrary to our dissenting colleague, we find that the
Respondent discharged employee Connie Neely because
of her union activities and her adverse testimony in a
prior Board proceeding.2 Thus, we agree with the judge,
for the reasons he stated, that the Respondent violated
Section 8(a)(3), (4), and (1) of the Act by discharging
employee Connie Neely on August 5, 1996.
It is undisputed that Neely was an open and known un-
ion supporter during the Union’s organizing campaign in
late 1994. On the election day, January 12, 1995, Neely
wore 12 union buttons on her blouse. Thereafter, during
the hearing in the prior case, Neely testified that the Re-
spondent’s operations manager, Morris Overbeck, had
coercively interrogated her. The judge in that case spe-
cifically credited Neely’s testimony regarding the con-
versation in finding, inter alia, that the Respondent had
violated Section 8(a)(1) of the Act.
There is also ample evidence, as the judge found, of
the Respondent’s animus towards its employees’ union
activities. Thus, the Board adopted the judge’s findings
in the prior case that the Respondent had violated Section
8(a)(1) of the Act by maintaining a rule that employees
may not discuss wages, by coercively interrogating
Neely and another employee, and by granting a wage
increase in order to influence the union election.3 We
further note that, during a television interview in August
1996, the Respondent’s president, Heike Holderer, stated
on camera: “We don’t particularly like unions” and the
Respondent is “against them” because they do not benefit
employees and would interfere with the Respondent’s
“direct interaction with our employees.” The Board has
held that an employer’s expression of antiunion com-
ments similar to those of the Respondent’s here, while
not themselves violative of the Act, nevertheless did es-
tablish animus towards its employees’ union activities.
Gencorp, 294 NLRB 717 fn. 1 (second paragraph), 720,
731 (1989) (antiunion animus established by, inter alia,
employer’s statement of union-free philosophy in its em-
ployee handbook).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 322 NLRB 502 (1996).
3 The Board further concluded that the Respondent’s wage increase
had interfered with the election in the representation case and directed a
second election which has not yet been held.
In finding evidence of the Respondent’s animus here,
we also rely on Neely’s credited testimony that during
her discharge interview Virgie McKenzie, Neely’s im-
mediate supervisor, asked whether she had spoken with
“Alice” lately. As the judge found, McKenzie clearly
was referring to Alice Sullivan Young, a former union
activist who had quit the Respondent’s employ. Because
Neely’s testimony in the earlier case also related to an
allegation that the Respondent had unlawfully disciplined
Young,4 we find that McKenzie’s reference to Young
euphemistically alluded to Neely’s protected activities,
and, as the judge found, thereby informed Neely that the
Respondent was discharging her for these reasons.
Significantly, Neely’s discharge, on August 5, 1996,5
occurred only about 11 weeks after the judge’s decision
issued in the prior case. The judge’s decision undoubt-
edly remained fresh in the Respondent’s mind. Indeed,
the Respondent posted an announcement on its bulletin
board informing employees that it intended to appeal
those adverse findings. Thus, based on the Respondent’s
knowledge of Neely’s activities, the evidence of its anti-
union animus, and the timing of the events in this case,
we find that the General Counsel has established a prima
facie case of discriminatory motivation.
We concede, as our colleague points out, that Neely
had exhibited various shortcomings as an employee dur-
ing 1996: her production ratings fluctuated between 87
and 95 percent from February through May; she had
failed, in June and July, to meet the minimum 90-percent
standard first established in May; and she had received
two “verbal warnings” in July apart from production
standards. We nonetheless agree with the judge that the
Respondent failed to establish that it would have dis-
charged her in August had she not engaged in protected
activities.
To establish an affirmative defense under Wright Line
to a discriminatory discharge allegation, an employer
must do more than show that it had reasons that could
warrant discharging the employee in question. It must
show by a preponderance of the evidence that it would
have done so even if the employee had not engaged in
4 No exceptions were filed to the judge’s dismissal of that 8(a)(3) al-
legation.
5 All dates are in 1996, unless otherwise noted.
327 NLRB No. 51
LAMPI LLC 223
protected activities. In assessing whether the Respondent
has established this defense regarding Neely’s discharge,
we do not rely on our views of what conduct should
merit discharge. Rather we look to the Respondent’s
own documentation regarding Neely’s conduct, to its
“Personnel Policy” handbook, and to the evidence of
how it treated other employees with recorded incidents of
discipline.
The Respondent’s record of the reasons for the Neely
termination stated: “Policy # 2.2.9 Failure to perform job
assignment.” Below this, 2 monthly performance effi-
ciency ratings were set out: “June efficiency 86.62; July
efficiency 68.95.” Yet there is nothing in either the per-
sonnel policy handbook or otherwise in the record to
suggest that failure to meet the new 90-percent standard
for a month or even 2 months automatically or inevitably
resulted in discharge.6 The handbook text on Policy 2.2.9
“Failure to perform a job assignment” states: “An em-
ployee can be disciplined for carelessness, unsatisfactory
work, or neglect of duty.” It lists as the possible pun-
ishments: “Counseling/Verbal or written warn-
ing/suspension or Counseling/discharge.” It does not
require that any of these particular dispositions be given
for a specified decline in production. Operations Man-
ager Overbeck, when testifying about notations made on
a list of employee efficiency ratings for June, explained
that there were warning notations next to some employ-
ees’ names but not next to Neely’s because the Respon-
dent had decided that during the first month of the new
standard, a rating that exceeded 80 percent would not call
for any kind of warning to the employee.that month, and
Neely exceeded that rating.7 A list drawn up in early Au-
gust showing the employee ratings for both June and July
included several instances of employees who, like Neely,
failed to make the 90-percent standard in July and who,
at least according to the written record, did not fall
within exceptions that effectively excused a failure to
meet the standard.8 Unlike her, those employees were not

6 We note that the handbook had been recently revised, with the re-
vision “effective June 1996,” the same month in which the phasing in
of the new 90-percent minimum production standard began.
7 The failure to indicate a warning of any kind to Neely also indi-
cates that her efficiency ratings for previous months were not being
held against her.
8 There appeared to be no established list of exceptions that would
excuse an employee from meeting the standards any given month.
Overbeck testified to exceptions for, e.g., new employees, pregnant
employees, old employees moved to new department, on the basis of
handwritten notations he had made on the production efficiency reports
for June and July. The testimony clearly indicated an ad hoc approach
to the creation of exceptions, and the judge not unreasonably ques-
tioned the Respondent’s failure to consider at all the serious illness of
Neely’s mother (whose hospitalization in July was admittedly known to
Supervisor McKenzie) and Neely’s distress over what she perceived as
sexual harassment by a fellow employee. As the judge noted, the 2
days in July on which her production was abnormally low, were the day
she reported the harassment and the following day. We do not suggest
that the Respondent was obligated to create exceptions for these cir-
cumstances; we simply observe that, given the highly elastic process by
terminated. Thus, for example, employee Benefield was
shown with a rating of less than 80 percent in both June
and July, with only a “warning” given to her; employee
Tuck had a rating of less than 60 percent during both
months, and was given a “final warning.” Employee
Sanders failed to make the 80-percent rating in June and
failed to make the 90-percent rating in July, but her name
had the notation “Warning 2nd—Move to faster person.”
While Belinda Lowe and Ginger Loudermilk, both with
low ratings, were shown as terminated, their overall re-
cords were not comparable to that of Neely, so their dis-
charges in no way established that Neely’s discharge was
inevitable.9
Perhaps recognizing that the written reasons for the
discharge would not stand up, Manager Overbeck stated
that Neely’s whole record was considered in making the
decision. Presumably he was trying to bring Neely’s
case within Section 2.1.3 of the Personnel Policy hand-
book which states that “A third or fourth infraction, as
well as a severe infraction may lead to discharge” (em-
phasis added). Neely had received written records of
“verbal warnings” for safety in August 1995, and, in July
1996, for absenteesim and for a failure to put UPC bar
codes on two lamps. Although Overbeck tried to suggest
he might have considered some absenteeism warnings
Neely had received in previous years, the judge reasona-
bly concluded this was not part of the discharge decision
because Overbeck also testified that absenteeism was, at
that time, calculated only on a calendar year basis. The
fact that the August 1995 and July 1996 incidents were
recorded as “verbal warnings” is significant, because the
Respondent’s handbook states: “A light offense will be
disciplined with a verbal warning.” More severe conduct
could merit a “written warning.” Thus, according to the
Respondent’s own handbook and disciplinary records, it
did not regard Neely’s two July incidents as other than
“light” offenses. 10

which the Respondent decided which employees to fault and which
employees to excuse for not meeting the production standard in any
given month, it is at least possible that consideration would have been
given to those circumstances had Neely not been a prominent union
advocate.
9 Loudermilk’s efficiency ratings were significantly lower than
Neely’s for both June and July, and she had engaged in insubordinate
conduct in July that, together with the failure to meet the June 80-
percent performance standard, was serious enough to warrant a 3-day
suspension at that time, with the notation that the next action would be
“Termination.” Belinda Lowe had also received a 3-day suspension—
in her case, for failing to put UPC bar codes on more than 100 lamps—
and the discharge notation next to her name on the sheet with June and
July efficiency ratings indicated she had also engaged in “disrespectful
conduct.”
10 The judge was thus well warranted in finding that Overbeck’s
“exaggerated effort [in his testimony] to portray [Neely’s] UPC mistake
as a near tragedy” was evidence that the Respondent’s explanations for
her termination were pretexts to conceal the discriminatory motive.
Overbeck’s vacillations regarding the significance of attendance re-
cords for disciplinary decisions also contributed to this impression. (See
fn. 5, infra.) We note that the judge also relied on his assessment of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 224
The Respondent’s disciplinary report records have a
box for “Next action if employee does not improve.” On
the July warning to Neely for the UPC code incident, the
report states: “Depending on the severity—A severe
violation can result in termination of employment” (em-
phasis added). As indicated above, nothing in the record
establishes definitively that missing the monthly profi-
ciency rating standard is a “severe” offense. Moreover,
even if it were, the use of the word “can,” instead of
“will,” suggests that even a severe offense would not
inevitably result in discharge. The Respondent knew
how to indicate a fixed intent to terminate for a next of-
fense. Thus, as noted above, Loudermilk’s 3-day sus-
pension notice had listed “termination” as the next ac-
tion: and a “Final written warning” notice given to em-
ployee Bridgett Williams in September 1995 for a pro-
fanity-laced altercation with a fellow employee stated,
“This behavior will not be tolerated—We hope this will
never happen again—If and when it does Bridgett will be
terminated.”11
In short, taking at face value the Respondent’s own
handbook policies and the categories in which it recorded
Neely’s infractions, we agree with the judge that the Re-
spondent failed to establish that, if Neely had not been an
outspoken union advocate, the Respondent still would
have dealt with her previous verbal warnings and July
production problem as it did when it “accelerated past
the suspension step and chose discharge.” Accordingly,
we adopt the judge’s finding that the Respondent’s dis-
charge of Neely violated Section 8(a)(3) and (1) of the
Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lampi LLC, Huntsville, Ala-
bama, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.

MEMBER BRAME, dissenting.
Contrary to my colleagues, I would reverse the judge
and find that the Respondent would have discharged em-
ployee Connie Neely even in the absence of her union
activities and her testimony in a prior Board proceeding.
In the months before her discharge, the Respondent, as
the judge found, repeatedly counselled Neely to increase
her productivity and Neely failed to heed those warnings.
Thus, because Neely’s productivity did not improve even
after she received a warning stating in part that her “next
action” warranting discipline, if a severe violation, could
“result in [her] termination,” I find that the Respondent

Overbeck’s demeanor in discrediting Overbeck’s testimony concerning
his alleged reasons for discharging Neely.
11 Three months later Williams was given an oral warning for exces-
sive absenteeism. Overbeck explained this mild action on the grounds
that attendance problems were viewed on a separate track from per-
formance problems.
lawfully terminated Neely on August 5, 1996, for her
overall job performance.
The Respondent hired Neely as an assembly employee
in October 1993. She openly supported the Union during
the organizing campaign that began in the fall of 1994.
On election day, January 12, 1995, Neely wore 12 or
more “Vote Yes” buttons on her blouse. The Union,
after losing the election, filed objections which were
consolidated for hearing with unfair labor practice
charges that the Union also had filed. During the hearing
in those prior cases, Neely testified that Morris Over-
beck, the Respondent’s operations manager, had ques-
tioned her about her union sympathies. On November
13, 1996, the Board issued its decision, at 322 NLRB
502,1 that adopted, inter alia, the judge’s finding that
Overbeck coercively interrogated Neely and his recom-
mendation to set aside the election in the representation
case.
Regarding Neely’s job performance, the record shows
that she had received excellent annual reviews from her
immediate supervisor, Virgie McKenzie, in October
1994 and October 1995, the latter being issued after
Neely’s active campaigning for the Union. McKenzie
noted on both her evaluations of Neely that her efficiency
rating under the Respondent’s production system had
exceeded 100 percent. After Neely earned an excellent
production rating of 124 percent in January 1996,2 her
efficiency rating declined during the next 5 months as it
fluctuated between 87 and 95 percent.3 In May, the Re-
spondent informed its assembly employees that begin-
ning in June, it would require them to maintain an effi-
ciency average of at least 90 percent. Although Neely’s
average for June was only 87 percent, the Respondent
did not discipline any employee who maintained an 80-
percent average during the first month of the new system.
McKenzie credibly testified, as the judge found, that
she informally counselled Neely about 15 to 20 times
between May and July urging Neely to increase her pro-
ductivity. McKenzie specifically told Neely that she
could improve her efficiency rating by reducing the time
she spent going to the bathroom, wandering from her
work station, and talking to other employees. According
to McKenzie, whose testimony was credited, Neely
seemed unconcerned about her declining production rat-
ing.
On July 18, the Respondent issued Neely two docu-
mented oral warnings which are not alleged as unfair
labor practices. One warning was for her failure to apply
the proper UPC code on two lamps that she had assem-
1 I did not participate in the decision there as I was not a Member of
the Board at the time the case issued.
2 All dates are in 1996, unless otherwise noted.
3 Neely’s rating was 88 in February; 95 in March; 89 in April; 91 in
May; and 87 in June.
LAMPI LLC 225
bled and the other was for excessive absenteeism.4
McKenzie stated on the production warning that, if
Neely did not improve, a “severe” violation the next time
“can result in termination of employment.” Neely admit-
ted that she did not take this warning seriously.
Neely’s efficiency rating for July was only 68.95, by
far her worst performance of the year, and below the 90-
percent efficiency rating set by the Respondent. Al-
though the Respondent made exceptions for employees
who, inter alia, were new, pregnant, part-time, or work-
ing on a new product, Neely did not fall under any of the
allowed exceptions. On August 5, the Respondent dis-
charged Neely under rule 2.2.9 for overall job perform-
ance.5 The Respondent also discharged two other em-
ployees, Belinda Lowe and Ginger Laudermilk, in early
August for, inter alia, failing to meet the 90-percent pro-
duction requirement.6
Assuming, without deciding, that the General Counsel
presented a prima facie case of unlawful discharge here
under Wright Line,7 I find that the Respondent has estab-

4 Neely had previously received warnings for excessive absenteeism
in both October and November 1994, and in April 1995.
5 I note that the judge credited Neely’s testimony that at her dis-
charge interview McKenzie asked her if she had spoken with “Alice”
lately. The judge found that McKenzie was referring to Alice Sullivan
Young, a former union supporter who had quit the Respondent’s em-
ploy, when McKenzie made this remark to Neely. Although the Gen-
eral Counsel alleged in the prior case that the Respondent had unlaw-
fully disciplined Young before she voluntarily quit, the judge there
dismissed that 8(a)(3) allegation and no party excepted to that finding.
Nonetheless, the judge in this case intuited that, by mentioning former
employee Young at Neely’s discharge interview, McKenzie was im-
plicitly informing her that “the discharge decision was made by top
management and, in McKenzie’s opinion, was driven by Neely’s strong
support for the Union, and especially by her testimony [in the prior
case] against Lampi’s management in the trial before Judge Metz.”
Because there is absolutely no evidence to support this unfounded and
speculative conclusion that the judge has reached, I find, contrary to my
colleagues and the judge, that McKenzie’s remarks provide absolutely
no grounds for the speculative finding that Neely’s discharge was dis-
criminatorily motivated.
6 Indeed, the record shows that in August the Respondent disciplined
via warnings other production employees who did not meet this stan-
dard and who had no allowable excuse for that failure.
7 251 NLRB 1083 (1981), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989, approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
Contrary to the judge and my colleagues, I do not find that remarks
made by the Respondent’s president, Heike Holderer, to a local televi-
sion station at some unspecified time in August that “[w]e don’t par-
ticularly like unions” and “we’re against them” demonstrates the Re-
spondent’s union animus here. Holderer’s statements clearly were
lawful under Sec. 8(c) of the Act as the judge found, and Sec. 8(c)
specifically provides that “[t]he expressing of any views, argument, or
opinion, or the dissemination thereof, . . . shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this
Act if such expression contains no threat of reprisal or force or promise
of benefit.” [Emphasis added.] See Medeco Security Locks, Inc. v.
NLRB, 142 F.3d 733, 744 (4th Cir. 1998), citing Alpo Pet Foods, Inc. v.
NLRB, 126 F.3d 246, 252 (4th Cir. 1997) (“Speech protected by [Sec.
8(c)] cannot be used by the General Counsel to establish an employer’s
anti-union animus.”) accord B E & K Construction Co. v. NLRB, 133
F.3d 1372, 1375-1377 (11th Cir. 1997); Holo-Krome Co. v. NLRB, 907
F.2d 1343, 1345–1347 (2d Cir. 1990), and cases cited therein
lished that it would have terminated Neely for cause re-
gardless of her activities protected by the Act. Although
she was once a satisfactory employee, the record shows
that Neely’s performance clearly had declined and con-
tinued to decline despite numerous warnings. I particu-
larly stress the evidence that Neely’s immediate supervi-
sor, McKenzie, warned Neely between 15 to 20 times
during the 3-month period before her discharge that she
needed to improve her productivity. Neely’s lack of
concern with these warnings was clearly established.
Next, on July 18, the Respondent issued Neely two warn-
ings for job deficiencies and specifically informed her
that a “severe” violation in the future could warrant her
termination. Neely herself admitted at the hearing that
she essentially ignored these danger signals.
Thus, when Neely, despite the Respondent’s repeated
admonitions, failed to meet the 90-percent production
standard for July, I find that the Respondent had a le-
gitimate business justification for discharging her.8 The
Respondent faced a situation in which Neely, for what-
ever reason, had lost interest in her job, failed to respond
to counsellings and written warnings, and allowed her
performance to continue to decline. In finding that
Neely’s discharge violated the Act, my colleagues have
intimated that the Respondent, by failing to suspend
Neely as it had done to Laudermilk and Lowe before
discharging them at the same time as Neely, unlawfully
accelerated Neely’s discipline in retaliation for her union
activities. There is no evidence here that the Respondent
was required under its disciplinary system to suspend an
employee before it could impose discharge as the culmi-
8 On Neely’s discharge paper, McKenzie stated that she knew of no
reason for the “drastic change in Connie’s performance.” The judge
found this comment to be an indication of pretext because, at the time
of the discharge, Neely had just recently filed a sexual harassment
claim against another employee and her mother was ill in the hospital.
The judge found the Respondent was aware of both of these events; that
these were personal problems “probably adversely impacting” on
Neely’s efficiency rating; and therefore “simply [ignoring] them and
[pretending] that it did not know of any reason for Neely’s low produc-
tion” showed pretext. I reject this unwarranted speculation on the
judge’s part.
I note first that the Respondent had investigated the sexual harass-
ment claim and, unable to substantiate either person’s claim, counselled
both employees on July 15. Regarding Neely’s mother’s illness, the
record shows that she had been ill the entire time Neely had worked at
the Respondent. Given these circumstances, McKenzie’s failure to
recount either of these events as a reason for Neely’s “drastic change”
in production does not rise to the level of pretext. Moreover, neither of
these circumstances was the type of factor that the Respondent used in
assessing Neely’s production efficiency or that of any other employee
as excusing poor performance. The Respondent made a business deci-
sion that employees who were pregnant, worked on new production or
in new departments, were part time, were new employees, or were
packers, crimpers, or those not having full control over their ability to
make the production standard, would secure exemptions. It did not
include exemptions for sexual harassment claims or ill relatives, and
the General Counsel has presented no examples of employees with
similar personal problems who were treated differently than Neely. In
sum, there is no showing of pretext in McKenzie’s comment on Neely’s
discharge paper.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 226
nation of that process. Furthermore, it is well established
that, if a legitimate motive was involved as occurred
here, “[t]he [B]oard cannot substitute its judgment for
that of the employer” and unilaterally decide what consti-
tutes appropriate discipline because “[t]he question of
proper discipline of an employee is a matter left to the
discretion of the employer.”9 Based on the evidence that
the Respondent had repeatedly warned Neely about im-
proving her job performance and threatened her with
discharge for a “severe” violation, I therefore conclude
that the Respondent has sufficiently justified its decision
to discharge Neely because of her continued overall per-
formance.10
My colleagues also suggest that Neely was the victim
of disparate treatment. They point to Benefield, Tuck,
and Sanders as employees whom the Respondent did not
discharge (though they were warned) even though they,
like Neely, did not meet its production standard in July.11
My colleagues, however, ignore the evidence that
McKenzie warned Neely between 15-20 times in the
months preceding Neely’s discharge that she needed to
accelerate her pace. There is no evidence that the Re-
spondent similarly counseled these other employees, or
that they were under the type of warning issued to Neely
on July 16. Thus, the majority has not shown that
Neely’s situation was comparable to these other employ-
ees.
My colleagues’ attempt to cast doubt on whether
Neely’s failure to meet its proficiency standard was a
“severe” offense also misses the mark. Based on its con-
cerns about productivity, the Respondent implemented a
90-percent production standard for employees in June,
allowed them a 1-month grace period to adjust to the new
system, and then began enforcement in July, as demon-
strated by the discharges of Neely and her coworkers,
Laudermilk and Lowe. In this context, it cannot be es-
tablished that the Respondent stretched its definition of
“severe” offense by concluding that Neely’s failure to
meet her production target constituted such an infrac-
tion.12 Rather, the majority has substituted its judgment

9 Corriveau & Routhier Cement Block v. NLRB, 410 F.2d 347, 350
(1st Cir. 1969), citing NLRB v. Ogle Protection Service, 375 F.2d 497,
505 (6th Cir. 1967), cert. denied 389 U.S. 843 (1967); NLRB v. GATX
Logistics, Inc., 160 F.3d 353 (7th Cir. 1998), and cases cited therein, at
357 [“We have observed on many occasions that courts do not sit as
‘super-personnel departments’ charged with deciding whether an em-
ployer’s decisions were ‘right’ or ‘wrong’; our sole mission, in the
typical discrimination case, is to decide whether the employee was
discharged (or subjected to other adverse action) on the basis of criteria
that Congress has deemed impermissible.”]
10 See Ona Corp., 270 NLRB 373, 373–376 (1984) (the Board found
no 8(a)(3) violation where the employer had similarly discharged em-
ployee Smart because of his low efficiency rating).
11 I note that the judge, even while finding a violation here, did not
rely on the Respondent’s failure to discharge these employees as sup-
port for his conclusion that the Respondent unlawfully terminated
Neely.
12 The majority’s argument that the Personnel Policy handbook did
not specify the 90-percent figure misses the point. The issue is not
for the Respondent’s by questioning the propriety of the
decision to discharge Neely for job performance that it
has effectively conceded warranted discipline.
For these reasons, I conclude that the Respondent has
satisfied its burden under Wright Line13 in this case when
it established by a preponderance of the evidence that it
would have discharged Neely even in the absence of her
union activities and prior Board testimony.14 Accord-
ingly, I would find that the General Counsel has not
demonstrated that the Respondent violated Section
8(a)(3), (4), and (1) of the Act by discharging Neely and
I would dismiss the complaint in its entirety.

Karen N. Neilsen, Esq., for the General Counsel.
David C. Hagaman, Esq. (Ford & Harrison LLP), of Atlanta,
Georgia, for the Respondent.
John L. Quinn, Esq. (Nakamura & Quinn), of Birmingham,
Alabama, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
discharge case. Deciding in favor of the Government, I find
that on August 5, 1996, Respondent Lampi unlawfully dis-
charged Connie Neely because of her earlier strong and open
support of the Union, and especially because, as a Government
witness in Lampi I, 322 NLRB 502 (1996), Neely gave damag-
ing testimony against Lampi during the March 1996 unfair
labor practice trial before Judge Albert A. Metz, who fully
credited Neely in his decision of May 22, 1996. I order Lampi
to offer full and immediate reinstatement to Neely and to make
her whole, with interest.
I presided at this 3-day trial (May 6, 20, and July 9, 1997) in
Huntsville, Alabama. Trial was pursuant to the March 18, 1997
complaint and notice of hearing (complaint) issued by the Gen-
eral Counsel of the National Labor Relations Board through the
Regional Director for Region 10 of the Board. The complaint
is based on a charge filed against Lampi LLC (Lampi or Re-
spondent) on August 16, 1997 [and served 3 days later] by the
International Brotherhood of Electrical Workers, AFL–CIO,
Local 558 (Union or Local 558). In the Government’s com-
plaint, the General Counsel alleges that Lampi violated Section
8(a)(3), (4), and (1) of the Act by discharging Connie Neely
about August 5, 1996.1 Admitting the discharge, Lampi, by its
answer, denies violating the Act. The names of Lampi and
Neely appear as amended at trial.
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over Lampi, that Lampi is a statutory
employer, and that the Union is a statutory labor organization.

whether the 90-percent figure was written but whether Neely was not
informed about the policy or whether it was discriminatorily enforced.
The General Counsel has established neither point.
13 Supra at fn. 7.
14 The majority’s tortured discussion of whether Neely’s job per-
formance could or would have justified her discharge under Wright
Line begs the question of whether the Respondent lawfully discharged
her. Here, the Respondent has affirmatively shown that it discharged
Neely based on her continued overall performance and that this out-
come would have occurred regardless of her activities protected by the
Act.
1 All dates are for 1996 unless otherwise indicated.
LAMPI LLC 227
Five witnesses testified before me. The General Counsel
called Morris Overbeck, Lampi’s operations manager, and
Connie Neely, the dischargee, and rested subject to production
of certain documents. The Union likewise rested. (1:225–
226.)2 After additional testimony by Overbeck concerning
documents produced while still the Government’s witness un-
der FRE 611(c), the General Counsel and the Union finally
rested. (2:319, 322). Lampi then called Overbeck, Heike
Holderer (Lampi’s president), Virgie McKenzie (Neely’s su-
pervisor), Denise I. Sanders, an assembler or production opera-
tor as was Neely, and rested. (3:646.) The General Counsel
called Neely in rebuttal, and Lampi recalled Overbeck for sur-
rebuttal.
At one point I held in abeyance a ruling on Lampi’s offer of
its exhibits 12-17 until the General Counsel could inspect the
documents. (2:382.) Later, Lampi’s counsel committed to
mailing copies to the Government and the Union during the
second adjournment. (2:452, 457.) Apparently by oversight,
Lampi failed to reoffer Respondent’s Exhibits 12–17 after we
resumed on the third and final day. I now receive Respondent’s
Exhibits 12–17 into evidence.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel, the Union, and Lampi, I make
these
FINDINGS OF FACT
A. Lampi’s Huntsville Operations
At its Huntsville, Alabama plant, Lampi manufactures fluo-
rescent light fixtures of various sizes in its “mini” and “maxi”
lines. The lights are consumer items sold at such stores as
Home Depot and Lowe’s. (1:61; 2:324, 365, 422, Overbeck.
During all relevant times, Lampi employed some 90- to 100-
(hourly paid) production and maintenance employees in three
divisions: machine shop (press room, printing, and mainte-
nance), assembly, and warehouse. (1:60-61; 2:324.) To meet
the strong demand of its customers, while trying to cope with a
tight labor market in the Huntsville area, Lampi decided to
open a second shift, and did so on Monday, June 24, 1996. The
initial staffing for this shift consisted of 20 employees (includ-
ing Connie Neely) transferred from the day shift. Faced with
employees quitting rather than work on a second shift, and in
the face of Huntsville’s tight labor supply, Lampi was forced to
close its second shift on Friday, July 12, after operating it just 3
weeks. The second-shift employees were transferred back to
the first shift. (1:12; 2:328-330, 456.) Neely was among those
returning to the first shift. (1:98, 100; 2:329.)
B. Union Organizing and 322 NLRB 502
In the fall of 1994, the Union began a campaign to organize
Lampi’s production and maintenance employees at Huntsville.
An election was held on January 12, 1995, in Case 10–RC–
14568, but the Union lost by a vote of 37 to 30. The Union
filed objections which were consolidated for trial with certain
unfair labor practice allegations. Judge Albert A. Metz pre-
sided at the March 13–15, 1996 trial, and he issued his decision
on May 22, 1996, finding certain 8(a)(1) allegations and dis-
missing the two 8(a)(3) allegations. On exceptions (an appeal)

2 References to the three-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s, C.P. Exh. for the Union’s, and R. Exh. for Respondent
Lampi’s.
filed by Lampi, the Board, with some elaboration, adopted
Judge Metz’ decision. Lampi, L.L.C., 322 NLRB 502 (1996).
There is no evidence in our case that union activity by em-
ployees continued between the January 1995 election and the
March 1996 trial before Judge Metz. Nor is there any evidence
of union activity among employees following the Judge Metz
trial.
Before Judge Metz, Neely not only testified against Opera-
tions Manager Overbeck regarding his coercive interrogation of
her in January 1995, but also in support of Alice Sullivan
Young, the Union’s election observer (the General Counsel
unsuccessfully attacked a disciplinary warning that Lampi had
issued to Sullivan, as she is referred to in Judge Metz’ deci-
sion), and about a general pay increase found unlawful. (1:125,
Neely.) The parties stipulated that Lampi posted the notice to
employees as ordered by Judge Metz and the Board. (2:321-
322.)
Neely was openly active for the Union during the preelection
period (including, for example, associating with Alice Sullivan)
and on the day of the election. On election day, Neely wore 12
or more “Vote Yes” buttons on the front of her blouse. (1:124,
137-140, 142). On seeing all the Union buttons on Neely’s
blouse that election day, Virgie McKenzie, Neely’s supervisor,
shook her head left to right, in the fashion expression disap-
proval. (1:141-143.)
The parties stipulated that President Heike Holderer was
aware that Neely supported the Union as of the date of the
January 12, 1995 election, and, that Neely testified on behalf of
the Government at the mid-March 1996 trial before Judge
Metz. (3:480.) Holderer equates Neely’s testimony before
Judge Metz with support of the Union. (3:475.) Neely con-
cedes that no supervisor said anything to her about her testi-
mony after she returned from the trial before Judge Metz.
(1:125.)
Following the May 22, 1996 issuance of Judge Metz’ deci-
sion, Lampi, on May 29, posted on the bulletin Board an un-
signed notice, on Lampi’s official letterhead, stating, in relevant
part, that it would appeal Judge Metz’ recommended order that
a new election be held. (1:127, 129.) The only copy of the
notice offered in evidence is the hand copy (G.C. Exh. 15)
which Neely made. The General Counsel offered the document
for the purpose of showing animus. (1:128.) As the notice
clearly does not show animus, I rejected the exhibit. (1:129.)
In removing General Counsel’s Exhibit 15 from the Rejected
Exhibits File, and placing it in the folder for the General Coun-
sel’s exhibits, I now receive General Counsel’s Exhibit 15 in
evidence for the limited purpose of showing the date of
Lampi’s posting of a notice of intent to appeal. The only rele-
vance is to assist in fixing the dates of events.
C. Overview
Until the summer (or possibly the spring) of 1996, Connie
Neely’s job performance record (aside from an attendance
problem) at Lampi was good. Following her October 1993
hiring at Lampi, Neely received good annual reviews from
Supervisor Virgie McKenzie in October 1994 (G.C. Exh. 10)
and October 1995 (G.C. Exh. 11). On both reviews McKenzie
noted that Neely’s efficiency exceeded 100 percent. She was
promoted to a grade 8 assembly employee, the highest labor
grade in the assembly division, and she was fully trained in that
position. (2:326, Overbeck; 3:482, 486–488, McKenzie.) Even
so, most of Neely’s experience was on the mini line, rather than
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 228
the maxi line. (1:98, 171, 180, 208–209, Neely; 2:339-340,
Overbeck.) Most of the lamps on the maxi line are larger than
those on the mini line.
Along the way to 1996, Neely picked up some warnings. At-
tendance was a problem for her, and she received poor atten-
dance warnings in October 1994 (R. Exh. 6, oral), November
1994 (R. Exh. 7, written), and April 1995 (R. Exh. 8, oral).
Before 1996, Lampi maintained attendance records and warn-
ings on a rolling 12-month basis. Beginning with 1996, Opera-
tions Manager Overbeck testified, Lampi switched to a calendar
year basis. (2:303–304, 311-313.) Although the implication of
Overbeck’s description of the policy is that attendance warn-
ings which have expired under the applicable policy (more than
12 months old under the pre-1996 policy, and after the start of a
new calendar year under the 1996 policy) are not available for
consideration in any future disciplinary action on that or infrac-
tions of other policies, Overbeck confirms (2:346–348) that he
did rely on these old attendance warnings (R. Exhs. 6, 7, 8), as
part of the “whole file,” when deciding to vote for discharge.
On August 25, 1995, Neely received a documented oral
warning (G.C. Exh. 14) over a safety violation. The warning
apparently was for failing to keep a power wrench under con-
trol and it flipped and hit the side of Neely’s head. (1:122,
Neely.)
On July 18, 1996, less than a week after she returned to the
first shift, Neely was given two documented oral warnings.
One was for excessive absenteeism. (R. Exh. 5.) The other
(G.C. Exh. 13) was for a mistake in her work (leaving the UPC
bar codes off two lamps). No previous warnings are noted on
either warning form, although that is true as to the previous
ones, as well. The complaint does not allege a violation re-
specting either of these July 1996 warnings. Supervisor
McKenzie noted on the production warning that a “severe”
violation the next time “can result in termination of employ-
ment.” Neely asserts that she does not recall this portion, even
though she read the warning, and that she did not take the warn-
ing seriously because other [unnamed] employees were “doing
stuff, and they wasn’t getting in trouble. So I didn’t, you know,
I didn’t think nothing about it.” She then admitted that she did
not know whether the other employees were receiving warn-
ings. (1:184–185.) In fact, Belinda Lowe, who make the same
error as Neely, only far more extensively (over 100 lamps),
received a 3-day suspension (2:350, Overbeck), and (1:186) so
told Neely.
For Neely’s production efficiency, the record shows that it
began to dip in 1996. After a robust 124 percent in January, it
dipped to 88 percent in February, recovered some in March to
95 percent, and continued to fluctuate with an 89 percent in
April, a 91 percent in May, and an 87 percent in June. (R. Exh.
9). Lampi implemented a new production system in June, go-
ing from a table group of employees to a two-person “cell” or
team. Additionally, in June Lampi implemented its new pro-
duction minimum of 90 percent [rule 2.2.15; G.C. Exh. 2 at 5],
although for the first month, June 1996, only 80 percent was
required to avoid a disciplinary warning. As Overbeck de-
scribes, several exceptions were allowed for employees who
were new, pregnant, under some other medical restriction, part
time, working on a new product, plus other exceptions. (1:91-
92; 2:385–387.) None of the exceptions fits Neely.
Some 3 weeks after Lampi posted an unsigned May 29 no-
tice of intent to appeal (G.C. Exh. 15), or about a week before
Neely and others were transferred to the newly created second
shift, a disputed incident occurred (as developed during the
Union’s direct examination of Neely). As the employees were
working, with Neely near one end of a 30-foot mini production
line, Neely observed at least three (unnamed) employees called
(to the office, apparently) to receive documented warnings. At
this point Neely shouted for all (about 20 or so employees) on
her mini line to hear, “This is why we need a union.” Standing
some 20 feet from Neely, inside an adjoining room and just
beyond a “door” consisting of a movable curtain of clear plastic
(color photocopies are in evidence as R. Exhs. 18, 19), were
President Holderer, Operations Manager Overbeck, and Super-
visor McKenzie.
Neely concedes that the three managers were looking at a
machine that was running and that the area was noisy. Neely
believes they heard her, however, because they turned and
looked at her as she shouted. She admits that none of the three
ever said anything to her about her shouted remark. (1:143–
149, 187–191.) For their part, the three managers deny ever
hearing Neely make such a shouted remark. Nor do they admit
hearing the shout but not understanding the words because of
the noise, the distance, and their own conversation. None of
the 20 or so employees on the mini line was called to confirm
or deny the incident. No evidence was offered identifying the
three (or more) employees who purportedly received warnings
that day. An unanswered question is the timing of the call to
the office of those warned, and the presence of Supervisor
McKenzie at the time of Neely’s purported shout.
I find the evidence insufficiently developed concerning
Neely’s asserted shout. Because of that insufficiency, I make
no findings about the asserted incident.
On July 11 (just before the July 12 termination of the second
shift, Neely complained to Lampi that a male employee, Sergio
Rivera, was sexually harassing her. Lampi investigated but
could not confirm the version of either employee. Accordingly,
on July 15 Lampi issued both employees nondisciplinary coun-
seling reports cautioning Rivera about Lampi’s policy against
sexual harassment, and informing Neely that false accusations
are “very serious and will be disciplined.” (G.C. Exh. 16;
1:179, 220–225; 2:408–409; 3:659–669.)
Neely explains that her production efficiency dropped during
July 1996 for reasons other than (as the General Counsel con-
tends) slow workers she was paired with. One of those reasons
was the Sergio Rivera matter. The other was that her mother, a
diabetic requiring insulin shots, was seriously ill. In fact,
Neely’s mother died about 1 month after Neely was fired.
(1:179, 216, 220–221.)
Respecting the two July 18 warnings which Neely received,
Overbeck confirms that, in weighing the option to discharge
Neely, he considered the earlier absenteeism warnings as well
as the July 18 attendance warning. (2:318–319, 345–348.) On
the UPC bar code warning of July 18 (G.C. Exh. 13), the policy
violated is stated as number 2.29. In Lampi’s Personnel Policy
handbook, effective June 17, 1996 (1:47, 57, 84), rule 2 covers
“Work Rules.” (G.C. Exh. 2 at 2). Rule 2.2.9 is the “Failure to
perform a job assignment.” The explanatory text reads, “An
employee can be disciplined for carelessness, unsatisfactory
work, or neglect of duty.” Marginal notations listing the range
of recommended disciplinary actions begin at a counseling, oral
or written warnings, suspension or counseling, or discharge.
(G.C. Exh. 2 at 4.)
Lampi’s work rules contain no ground for discipline ex-
pressly labeled “overall performance.” Rule 2.215, which cov-
LAMPI LLC 229
ers “Poor Performance,” provides that an employee will be
allowed up to 3 months from the date of hire to come up to full
performance. “Continuous poor efficiency or failure to main-
tain performance standards can not be tolerated. Performance
is considered poor if the average monthly efficiency drops be-
low 90%.” Lampi interprets this rule as limited to efficiency
ratings. (2:408, Overbeck.) Both Overbeck (1:64-65, 91, 94;
2:273, 302–303, 407–408) and McKenzie (3:617) testified that
Rule 2.2.9, despite its label of failure to perform “a” job as-
signment, is interpreted as covering the situation of “overall
performance” and that, for that situation, the employee’s entire
personnel file is reviewed. As Overbeck puts it, rule 2.29 is for
a person who has “multiple problems.” (2:303, 407–408.)
On Monday, August 5, 1996, Lampi discharged Neely under
policy rule 2.2.9. (1:48, 63-65, Overbeck; 3:600, McKenzie;
G.C. Exh. 6.) About 10 minutes before the end of her shift that
day, Neely was called into McKenzie’s office. Supervisor John
Hoffman was present as a witness and, in that capacity, signed
the termination paper (G.C. Exh. 6). What was said at the dis-
charge meeting is disputed, but the discharge form, which
Neely refused to sign, is not in dispute. The text provides (G.C.
Exh. 6):

Policy #2.2.9. Failure to perform job assignment

June efficiency 86.62
July efficiency 68.95

In the box for the supervisor’s comments, McKenzie wrote
(1:90; 3:580): “I know of no reason for the drastic change in
Connie’s performance. She was paired with different partners
with no improvement shown.”
Apparently within a few days of Neely’s discharge, Neely,
former coworker Belinda Lowe [also fired (2:396, Overbeck),
apparently about the same time as Neely], and Heike Holderer
were interviewed on camera by news reporter Max Stemple of
a local television station, apparently Channel 31. After a back-
ground introduction by news anchor Heather Burns about the
organizing, the election lost by the Union, and a statement that
employees now say they are being fired for “the new union
effort,” the news clip, after showing a view of Lampi’s facility,
switches to the interviews (C.P. Exh. 1; 2:250; 3:471–473):

Connie Neely Yes, I am very angry. Cause, I mean,
you know, I don’t understand why
they tell me I’m a great employee and
everything and the next thing you
know, they tell me I’m fired. And I
feel like . . . .
Max Stemple Because of your involvement with the
unions?
Connie Neely Because it had to be my involvement
with the unions.
Belinda Lowe We was sitting outside on my lunch
break and I just, you know, sitting
outside at the picnic table and I’d
start talking about the Union and I’ve
had 1 or 2 go “Shh,” and I said,
“Why? You scared you gonna lose
your job?”
Max Stemple Belinda was also fired last week. We
went to Lampi to confront company
officials. They tell us the two both
were fired after being written up nu-
merous times for breaking company
policy and that it had nothing to do
with the union support. However,
they say they stick by their opinion
that Lampi should be a union-free
business.
Heike Holderer We don’t particularly like unions.
We don’t feel they benefit the em-
ployees and we like to have direct
interaction with our employees so
we’re not for the unions. We’re
against them.
Max Stemple Officials at Lampi say they’ve al-
ready petitioned to appeal the court’s
ruling allowing for a new union vote.
If this happens, then employees will
not be allowed to vote for a union
again and Lampi will remain a union-
free business. Heather, this all comes
down to the age-old question of
whether or not a union is good for
both employees and business or not.
Heather Burns Lampi is certainly outspoken about it.
We’ll have to wait and see what hap-
pens. Thank you.

D .Connie Neely Discharged August 5, 1996
After Lampi implemented the new production system in
June, and issued the revised Personnel Policy handbook effec-
tive June 17, 1996 (G.C. Exh. 2), Operations Manager Over-
beck began meeting with the department supervisors to review
the monthly efficiency reports. He distributed copies of the
June report to the supervisors. In early July Overbeck, by him-
self, inspected the June report and made notes on his copy.
[Recall that he had set a preliminary standard of only 80 per-
cent for the first month, so that not until the first full month
(July) under the new system would the handbook’s 90 percent
standard (rule 2.2.15) apply. (2:385, 434–435.) Overbeck also
established several exemptions from the requirement to make
standard, and these included exemptions for employees who
were pregnant, working on new products or in new depart-
ments, part-time employees, new employees, packers, crimpers,
and other not having full control over their ability to make
standard.] After making notes on his own copy of the June
report (G.C. Exh. 7), such as who should be warned or termi-
nated, he called in each supervisor.
Overbeck and the supervisor went down the list discussing
each person whose rating was below (for June) 80 percent.
Based on their discussion, and in line with the explanations
given by the supervisors for the low ratings, Overbeck revised
some of his initial thoughts about the appropriate discipline.
(1:71, 92-94; 2:383–389, 439–442.) For example, although
Overbeck initially wrote that Patricia Collier, at 69.75 percent
(G.C. Exh. 7 at 1), should be terminated, when the supervisor
informed him that Collier was working on a new product in a
new department, Overbeck backed off. (1:91-92; 2:387–388.)
Similarly, although Overbeck initially wrote that Judith Delong,
at 69.63 percent (G.C. Exh. 7 at 2) should be terminated, he
relented when the supervisor advised that Delong was working
in a new department. (2:391,) Connie Neely was passed by
because her percentage was 86.62. (2:391; G.C. Exh. 7 at 1.)
When the July report (G.C. Exh. 8) was printed, Overbeck,
in early August, went through the same process. [Recall that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 230
this time employees had to average at least 90 percent to avoid
discipline.] Overbeck marked three for discharge: Ginger
Laudermilk (47.88 percent), Belinda Lowe (83.15), and Connie
Neely (68.95). All three were fired. (2:392-396, 435-436.)
When Overbeck and McKenzie, during their early August
meeting, came to Neely’s name, Overbeck asked whether
McKenzie knew why Neely’s percentage had dropped.
McKenzie said no because she had changed her partners and
talked with her but could offer no reason for the drop.
McKenzie told Overbeck that Neely did not seem to care. At
Overbeck’s request, McKenzie obtained Neely’s personnel
folder, and they went through Neely’s file. They noted the
prior attendance warnings and the UPC code warning. Over-
beck expressed the opinion that they had no choice but to ter-
minate, and McKenzie agreed. They then met with President
Holderer and discussed the matter. Holderer reviewed the file,
including the attendance warnings. In a “joint decision,” the
three decided that Neely should be terminated. (1:45-47;
2:341–348, 400–402, 684, Overbeck; 3:548–551, 588–590,
617, McKenzie.)
Although the accounts of Overbeck and McKenzie are essen-
tially the same, there is one difference to note. Overbeck de-
scribes the process as one in which McKenzie made a recom-
mendation to discharge, with which he agreed, followed by the
next step of their going to Holderer where Overbeck recom-
mended discharge, followed by Holderer’s review of the file, a
discussion, and a joint decision. McKenzie agrees with the
joint decision concept, but strongly asserts that neither she nor
Overbeck made any recommendation. She specifically denies
that she went to Holderer’s office with a recommendation of
discharge. (3:590.) In her own brief testimony, Holderer does
not address the meeting or the (joint) decision to discharge
Neely.
While I credit McKenzie’s different version respecting an
express recommendation, she did concur with Overbeck’s as-
sessment that discharge was required. Moreover, the fact that
she and Overbeck went to Holderer’s office with Neely’s per-
sonnel file was something more than a “Hey, boss, we’ve got a
problem. What do you want to do?” At the very least, their
trip to see Holderer implied a recommendation of discharge.
The only relevance of the difference in the accounts is that
McKenzie’s version, particularly her specific denial that she
went to Holderer’s office with a recommendation of discharge,
lends some support to her reference to “Alice” at the discharge
meeting with Neely. (I discuss the “Alice” reference in a mo-
ment.) That is, although it is not necessary for me to ascertain
the precise reasons for all the behind-the-scenes events, in that
it is enough that I credit one witness or another, what likely
happened is helpful to know in the credibility analysis. In this
instance it appears that McKenzie had some kind of mental
reservation about recommending discharge either to Overbeck
or to Holderer. Nevertheless, caught in the rush of events, she
concurred with Overbeck’s opinion favoring termination.
There is one other difference. In McKenzie’s initial descrip-
tion, she reports that she and Overbeck noted that Neely’s per-
sonnel file had “a” poor attendance warning as well as the UPC
code warning. (3:549.) Those were the two July 18 warnings.
(R. Exh. 5 and G.C. Exh. 18.) Again, on cross examination
(3:589), McKenzie refers to the attendance warning in the sin-
gular. (3:589, 617.) Only in describing the visit to Holderer
does McKenzie use the plural, but then she uses it even as to
the UPC code warning. (3:550.) The relevance of this is its
bearing on the question of whether Lampi overreached when it
counted—if it did—the 1994 and 1995 attendance warnings.
However, Overbeck testified that, when Lampi considers disci-
pline under rule 2.2.9, the employee’s whole personnel file is
reviewed. (2:273.) That is what he did with Neely’s personnel
file. (1:46; 2:341-348, 400-401, Overbeck; 3:589, McKenzie.)
When they went to Holderer, she reviewed the “contents” of
Neely’s file. (3:589, McKenzie.) Nothing is ever removed
(discarded) from a personnel file. (2:312, Overbeck.)
Turn now to Neely’s discharge the afternoon of August 5,
1996. About 10 minutes before her shift ended that day, Neely
testified, McKenzie called her into an office. Supervisor John
Hoffman entered the office with the other two. As they sat
down, McKenzie wasted no time. She told Neely that she was
terminated effective right then. Neely asked how could they do
this to her when she had not ever been suspended. McKenzie
replied that [Operations Manager] Morris Overbeck said that it
had to happen. Neely then said she needed to get her toolbox.
Supervisor Hoffman said she could not return to the work area,
and that he would get it. When Hoffman left the room,
McKenzie asked Neely if she had talked to “Alice” lately.
“No,” Neely replied. McKenzie said she was sorry that this had
to happen, but she had warned the employees that something
was going to happen. Neely testified that she understood the
“Alice” to be Alice Sullivan Young, and the asserted warning
to be a reference to the production meeting in February when
McKenzie had told the group to get their production up or go
work elsewhere. (1:129–131.)
McKenzie gives a somewhat different version. Between the
joint-decision meeting with Overbeck and Holderer and the
discharge-meeting with Neely and Hoffman, McKenzie testi-
fied (3:551, 580581), she prepared the discharge paper (G.C.
Exh. 6). That was probably the day following McKenzie’s
meeting with Overbeck and Holderer. (3:581-582.) Earlier I
summarized the text of the paper (G.C. Exh. 6) reflecting
Neely’s discharge. In a space to note the “Date of previous
action,” the only date listed is that of July 10, 1996. McKenzie
concedes that the referenced date should have been July 18,
1996 for the “UPC code violation.” (3:3:553.) Recall that on
July 18 Neely received two oral warnings, one for excessive
absenteeism (R. Exh. 5) and the other (G.C. Exh. 13) for the
UPC code violation.
According to McKenzie, when she, Hoffman, and Neely
were in the office, she showed the discharge paper to Neely and
explained that the efficiency percentages are compiled into a
monthly report. She pointed to the percentages for June and
July. “We went over that and I explained to her because of the
overall performance, that we were terminating her employment.
That being a combination of the poor efficiency, the UPC code
violation, the bad attendance, the overall poor performance.”
Asked whether Neely said anything, McKenzie testified that
Neely would not sign the document. McKenzie then asked if
Neely wanted Supervisor Hoffman to retrieve her personal
belongings from her work station. Neely said yes. When
Hoffman left the office, “I told Connie that I hated that it had
come to this. And then John and I walked out with her.”
McKenzie denies that the name of “Alice” was mentioned dur-
ing the interview, denies that she asked whether Neely had seen
“Alice” lately, denies referring to any warning that this would
happen, and denies saying that “Morris” said it had to happen.
(3:551-552.)
LAMPI LLC 231
McKenzie (3:554), as Overbeck (2:402-403), denies that
Neely’s union activities or testimony before Judge Metz had
anything to do with Neely’s discharge. Overbeck also denies
ever telling McKenzie that Neely’s discharge had to happen.
(2:402.)
Respecting the meeting, Neely testified more persuasively
than did McKenzie, and I credit Neely. At the same time, I find
it probable that McKenzie did hand the discharge paper to
Neely, or place it before her, and that McKenzie referred to the
efficiencies of June and July reflected on the paper. I find that
McKenzie did so. Noting the reference on the discharge paper
to the (intended) date of July 18, when two warnings were is-
sued to Neely (one for attendance and the other for the UPC
code violation), and to the listing of 2.2.9 on the paper, I find
that McKenzie also referred to Neely’s “overall performance.”
Even so, in light of McKenzie’s description of references in the
singular to the attendance warning in the file, and noting Over-
beck’s unpersuasive testimony that he relied on the 1994 and
1995 attendance warnings, I find that Lampi, even if it saw the
earlier, and by then stale warnings of 1994 and 1995, attached
no weight to them. Indeed, I find, that is why only the specific
date of July 18 [as corrected at trial] is listed under previous
action—Lampi itself treated the 1994 and 1995 warnings as
stale even though, by Lampi’s practice, nothing ever is re-
moved from the file and discarded.
E. The Government’s Prima Facie Case
1. Knowledge
Background knowledge as to Connie Neely’s union sympa-
thies and support has been described earlier. Lampi denies
knowledge of any active support by Neely of the Union since
her March 1996 testimony before Judge Metz. Lampi argues
(Br. at 38) that knowledge of past union support does not estab-
lish that Neely still supported the Union some 4 to 5 months
later. Oh, but it does. The law presumes that the existence of
an established fact continues into the future unless shown oth-
erwise. Lampi has not shown otherwise. Indeed, I find that the
image of Neely’s open support of the Union, and of her testi-
mony before Judge Metz, remained as a vivid icon on the desk-
top screen of Lampi’s memory.
2. Timing
Timing does not favor the Government. As I have found in-
sufficient evidence regarding the asserted mid-June shout by
Neely about “This is why we need a union,” it is clear that the
last open Union or Board-connected activity of Neely’s was her
March 1996 testimony before Judge Metz, and the last Union-
related event of any kind, before August 5, was the May 29
posting by Lampi of its notice to employees that it intended to
appeal Judge Metz’ decision. Between Judge Metz’ May 22
decision and Lampi’s May 29 posting, and the August 5 dis-
charge of Neely, there were intervening events.
First, Neely initially conceded that Supervisor McKenzie in-
formally counseled her at least twice in July, after she returned
from the second shift, about needing to increase her production
efficiency. [Recall that on June 17 Lampi implemented its new
requirement that workers must produce at an efficiency rate of
at least 90 percent, although Lampi let June be a grace month in
which an 80 percent rating would escape penalty. Also in June
Lampi installed its new production system, switching from a
group table of 10 or more employees to a two-person cell or
team.] The second counseling was when Neely was part of a
group being told that their production was low and that they
were talking too much. (1:104–113.). On cross examination
Neely concedes that, during the last month of her employment,
McKenzie told her once that she needed to pick up her produc-
tion. (1:162). In her October 1996 pretrial affidavit (R. Exh.
2), Neely told the Board agent that McKenzie counseled her
three times. The approximate dates for such counselings are
not given in the record. (1:162-165.)
Shown a note (G.C. Exh. 12), dated February 28, 1996,
which she had made concerning the second counseling she
admitted at trial, Neely moved the dates of the two counselings
back to February. (1:115, 125–126.) Of course, it is quite pos-
sible that such counselings of employees, including with groups
of employees, occur ever so often if the production reports
show that the efficiency percentages are dipping. Nothing mili-
tates against the possibility of counselings in February, and
then again in July. Indeed, Neely admits (1:118–119) that she,
as part of a group, was orally counseled (not documented) for
low productivity while she was on the second shift.
Supervisor McKenzie testified that she began in May 1996
counseling Neely to increase her productivity by reducing ex-
cessive trips to the restroom, wandering from her work station,
and excessive talking, and that she so informally (and without
documentation) counseled Neely 15 to 20 times from May
through July. McKenzie testified that Neely did not show
much concern. (3:497–499, 521–529, 596–599.) Admittedly
(3:600), McKenzie never gave Neely a disciplinary warning for
any of this. I credit McKenzie who testified in a believable
fashion regarding this area (in contrast to Neely’s confused
description). In this connection, I attach some weight to the
admitted fact that, as mentioned above, Neely, along with oth-
ers, was counseled for low production efficiency while she was
on the second shift. (1:118–119.) While Neely’s 87-percent
efficiency (R. Exh. 9) saved her from any discipline for June
(2:391), Overbeck), fate struck hard when her July efficiency
dropped (R. Exh. 9) to 69 percent.
Recall also the two July 18 warnings that Neely received,
one for attendance (R. Exh. 5) and the other (G.C. Exh. 13) for
not applying the correct UPC codes in marking two lamps.
This type of mistake, Overbeck testified, could cost Lampi
monetary penalties, and Lampi considers it a serious infraction.
The warning notice advised Neely that a “severe” violation
could result in her termination. (2:401–402.) As already men-
tioned, Neely testified that she did not take the warning seri-
ously because other employees supposedly were breaking rules
and not getting into trouble. (1:184–185.) That certainly was
not so as to Belinda Lowe who, as mentioned earlier, received a
suspension for the same type mistake (although far more exten-
sive) as Neely’s.
Finally, there is the incident which triggered the discharge
event—the July efficiency report (G.C. Exh. 8) which showed
that Neely’s efficiency had dropped to 68.95 percent. I reach
that matter in a moment.
3. Animus
The complaint contains no allegations of independent viola-
tions of Section 8(a)(1) of the Act, and none was litigated by
implied consent. For animus the General Counsel relies on
several secondary items. The first of these is the unfair labor
practice findings in the prior case, including an unlawful inter-
rogation there by Operations Manager Overbeck of the alleged
discriminatee here, Connie Neely.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 232
The Government also argues (Br. at 17–18) that animus is
shown by Lampi’s implied failure to comply with the Board’s
order that it cease maintaining a rule that employees may not
discuss their pay with fellow employees. The old rule so pro-
vided, as shown at 322 NLRB 502, 504. Lampi’s June 17 Per-
sonnel Policy handbook shows that the offending two sentences
[“Your pay is not to be discussed among fellow employees.
This discussion could result in immediate dismissal.”] have
been removed, leaving the following statement, as relevant,
under rule “8.1. Pay is confidential” (G.C. Exh. 2 at 14):

The amount of your pay is a confidential matter between you
and the company and is disclosed by this company only to
government/official offices such as taxing units etc., as re-
quired by law.

The complaint does not attack this provision. The General
Counsel’s argument appears to be that the quoted confidential-
ity statement, as it now reads, shows animus because it impli-
edly carries the same message as the earlier wording. The
Government cites no cases for this contention, and does not
even pause to advance any logical interpretation for such
thought. I find no animus in the above-quoted 1996 wording.
Next, the General Counsel points to President Heike
Holderer’s August 1996 on-camera statements (C.P. Exh. 1) to
Channel 13 that “We don’t particularly like unions” and that
Lampi is “against them” because they do not benefit employees
and would interfere with Lampi’s “direct interaction with our
employees,” in conjunction with Lampi’s handbook position
(G.C. Exh. 2 at 13):

7. Labor Unions
This is a non-union plant.
It is our desire to always remain non-union. Our goal
is to maintain good working conditions, treat people fairly
and run our business successfully.
We feel that unions do not create jobs, increase plant
effectiveness or produce products that satisfy customers.
We feel that they have the opposite effect.
Our main objection to Unions is that they reduce team
work and harmony. Unions create a third party instead of
allowing people to work together and directly with each
other. Our customers prefer to buy products from a non-
union plant as they have less fear of their supply being cut
off due to a strike.
Unions spend money to organize, thus they must re-
cover their expenses by collecting from your pay check.
Unions attempt to gain power by weakening rights and
freedom of individual employees.
It is much better to work together to assure individual
growth, security and business success and strengthen indi-
vidual rights and freedoms.

Citing no case for the Government’s position, the General
Counsel even fails to mention Section 8(c) of the Act. Al-
though citing no cases, Lampi (Br. at 35) contends that
Holderer’s televised comments [and, although not mentioned,
Lampi’s handbook postion] are protected by Section 8(c).
There is no merit to Lampi’s argument that Holderer’s com-
ments are irrelevant because they came after Neely’s discharge
and do not [expressly] refer to Neely.
Lampi’s handbook expression of its desire to remain a non-
union plant makes no threat, and outlines the reasons for the
company’s position. That statement clearly is milder than the
one, found to express animus, in Stoody Co., 312 NLRB 1175,
1176, 1182 (1993). For example, there is no pledge here, as
there, to prevent any union from coming into the plant “by
every proper and legal means available.”
Holderer’s televised comments, however, reveal more feel-
ing than Lampi’s printed page. As Holderer flatly states on
camera, “We don’t particularly like unions.” In fact, “We’re
against them.” That strong feeling of opposition to unions,
indeed, a dislike of unions, expresses antiunion animus. As
with the expression in Stoody, Holderer’s comments are not
unlawful. Nevertheless, they reveal animus, and such animus,
in the proper context, can assist in determining whether the
evidence demonstrates an unlawful motivation.
Finally, the General Counsel points to the “Alice” comment
assertedly made by McKenzie at Neely’s discharge interview.
Recall that Alice Sullivan Young was the Union’s observer at
the January 1995 election, and that Neely openly associated
with Sullivan at the plant. Recall that, present for Neely’s dis-
charge, were Neely and supervisors McKenzie and Hoffman.
Earlier I described the meeting and my crediting of Neely and,
to some extent, McKenzie. Recall that when Hoffman left the
room, McKenzie, as I have found, asked Neely if she had
talked to “Alice” lately. “No,” Neely replied. McKenzie said
she was sorry that this had to happen, but she had warned the
employees that something was going to happen. Neely testified
that she understood the “Alice” to be Alice Sullivan Young,
and the asserted warning to be a reference to the production
meeting in February when McKenzie had told the group to get
their production up or go work elsewhere. (1:129-131.)
What interpretation should be placed on McKenzie’s refer-
ence to “Alice”? Does it mean, “Top management nailed you
for supporting the Union, and especially for testifying against
them before Judge Metz.” Or does it mean, “Yes, you sup-
ported the Union and testified against us, and I get a kick out of
this opportunity to rub your nose in the fact that a big union
supporter like you is being fired, but regardless of all that, you
would have been fired today anyhow because of your poor
efficiency in July.” What about, “I saw Alice at the mall last
week and she asked about you. Have you talked with her
lately?”
Of those possibilities, the most logical is the first. I find it is
the message which McKenzie intended to convey. Although
both the first and third are simple concepts, only the first easily
fits the facts. The third might have applied if McKenzie had
offered that explanation, but she denies any reference to Alice.
Similarly, the second alternative, while it could fit the situation,
was not offered as an explanation. Thus, McKenzie’s denial
that she mentioned the name of Alice eliminates the second
alternative from consideration.
It might be asked, however, how does the first possibility fit
the facts when, as I have found, McKenzie had given Neely
informal (undocumented) counselings from May through July
(excluding the 3 weeks when Neely was on the second shift) in
an effort to increase her production. If McKenzie was out to
“get,” and “dig,” Neely, why did McKenzie not simply issue
her written warnings at every opportunity? The answer, I find,
is that McKenzie’s reference to “Alice” was not a “dig” at all,
but a signal meaning that the discharge decision was made by
top management and, in McKenzie’s opinion, was driven by
Neely’s strong support for the Union, and especially by her
testimony against Lampi’s management in the trial before
Judge Metz. Actually, determining such behind-the-scenes
LAMPI LLC 233
events and motivations is difficult, and in this instance unnec-
essary. I have credited the witness who was more persuasive
on a given point. Sometimes that leaves the various findings
with a peculiar alignment or two.
In short, I find that Supervisor McKenzie’s reference to “Al-
ice” discloses both animus and an unlawful motivation by
Lampi in the discharge of Connie Neely.
4. Disparity
In a further effort to show an unlawful motivation, the Gov-
ernment argues (Br. at 29–33) that, from an oral performance
warning (G.C. Exh. 13) to Neely on July 18, Lampi skipped the
progressive steps of a written warning, and then a suspension,
and zapped Neely with a discharge because her July efficiency
had dropped to 69 percent—yet all the while Lampi was retain-
ing others, with low efficiency ratings, and issuing them warn-
ings. Countering, Lampi argues (Br. at 36–37) that, with one
exception, none were similarly situated to Neely.
Most of those named by the General Counsel fit one of the
exceptions, such as pregnancy, listed by Overbeck. Curiously,
all parties rely on the case of Ginger Laudermilk as showing, or
disproving, disparity. Hired January 15, 1996 (G.C. Exh. 7;
1:75, 104), Laudermilk’s efficiency for May was 61.18 percent
(G.C. Exh. 27). After 2 straight days at a 33-percent efficiency
(G.C. Exh. 27), Supervisor Laura Harbin gave Laudermilk a
documented oral warning (G.C. Exh. 26a.) When Overbeck
saw the June efficiency report (G.C. Exh. 7), with Laudermilk
at 57.86 percent, he and the supervisor went through Lauder-
milk’s personnel file. Finding warnings there for other matters,
Overbeck decided that a final warning should issue to Lauder-
milk under policy rule 2.2.9. (2:390.) In fact, on July 3, Laud-
ermilk was suspended for 3 days for four different matters:
Failure to follow instructions, 2.2.9; the same being insubordi-
nation, 2.2.8; failure to wear safety glasses; and failure to meet
performance [efficiency] standards, 2.2.9. (G.C. Exh. 26b.)
When Overbeck inspected the July efficiency report, and saw
Laudermilk’s 47.88 percent (G.C. Exh. 8 at 1), he and Supervi-
sor John Hoffman decided that Laudermilk should be termi-
nated under policy rule 2.2.9. (2:393-395, Overbeck.) The text
of Laudermilk’s August 3 discharge paper (G.C. Exh. 26c)
reads very much like that of Neely’s:

Policy #2.2.9.Failure to follow job assignment

June efficiency 57.86
July efficiency 47.88

In the box for the supervisor’s comments, Hoffman wrote:
“Have not seen any improvements of efficiency over the past
few months.” Laudermilk signed the report, as did Hoffman.
The date by the signatures is August 5, 1996 (the same date that
Neely was fired).
Lampi argues that its treatment of Neely and Laudermilk was
practically identical, and in any event Overbeck (2:395) did not
know whether Laudermilk supported the Union or not. The
General Counsel and the Union point to the fact that Lauder-
milk was first suspended before she was fired, and that Neely
was not given the courtesy of a “wake-up” suspension as had
been extended to Laudermilk. As Laudermilk had not been
employed during the union activities (and there is no evidence
of union activities, open or covert, in 1996 other than the March
trial), and especially as she had not testified against manage-
ment before Judge Metz, as Neely had, the clear distinction
between the two, and their treatment by Lampi, is Neely’s pro-
tected activities. Disparity for an unlawful reason is shown.
5. Pretext
When asked the reasons for the discharge of Neely, both Op-
erations Manager Overbeck (1:47) and Supervisor McKenzie
(3:601) list three: (1) absenteeism problem, (2) severity prob-
lem (warning for UPC code mistake), and (3) poor efficiency.
As I have found, Lampi did not rely on, or give weight to,
the 1994–1995 attendance warnings. Indeed, although Over-
beck mentions (2:342, 400, 408) seeing the August 1995 safety
warning (G.C. Exh. 14) in Neely’s personnel file, it is not listed
on the discharge paper either under the topic for previous warn-
ings or under any topic for “overall performance.” Instead,
only the three items are listed on the discharge paper (G.C.
Exh. 6), and two of those (attendance and UPC code mistake)
are by reference to the July 18 [date as corrected at trial], 1996
warnings. It is those three items, I find, that Overbeck and
McKenzie mean when they describe “overall performance.”
The August 1995 safety mistake by Neely became an after-
thought for use at the trial to bolster Lampi’s case. I so find.
Respecting the warning of July 18 (R. Exh. 5) for excessive
absenteeism, it is clear that the attendance matter, with merely
an oral warning, was not at any serious stage. Whether under
the new or even the old (rolling 12-month) policy, Neely’s
attendance record had been cleared. That is why this step, in
the progressive discipline for the attendance track, was the first
step—an oral warning. To the extent that Overbeck includes
this warning as part of Neely’s asserted “severity problem,” he
overreaches. And he does so, I find, to shore up what he and
Lampi perceive to be a weak case.
As for Neely’s mistake of failing to put the UPC code on two
lamps, at every possible turn Overbeck trumpets his opinion of
the seriousness of Neely’s mistake, stressing that each one
could have cost Lampi a $1000 penalty. Indeed, it seems that
there is even more to Neely’s mistake than a mere, isolated
mistake. According to Overbeck, the UPC code mistake repre-
sented a “severity problem” (1:47), a “serious offense” (2:400),
indeed, a “very serious offense” (2:402). At one point, 2:408,
Overbeck asserts that, of the warnings in Neely’s personnel file,
“two or three [were] severity warnings. So that was on overall
performance.” Clearly, Overbeck supposedly saw Neely as a
walking “severity problem.”
No one questions that the UPC code is an important matter,
and that Neely made a mistake—the only documented perform-
ance mistake of her entire career at Lampi. [Trial lawyers and
brain surgeons would be envious of her near-flawless job per-
formance.] But in observing Overbeck repeatedly nail Neely to
the cross over this “very serious offense,” and her “severity
problem” [as if Neely goofed on most everthing she did], I was
reminded of the oft-quoted3 line from the Queen’s response
(III, ii, 237) to Hamlet’s question, as paraphrased here:

Overbeck doth protest too much methinks.

While applying the UPC code is an important matter,
Neely’s mistake, in light of her demonstrated competence dur-
ing her nearly 3 years at Lampi, was not deemed serious
enough at the time to warrant even a written warning under rule
2.1.1.2. [That rule provides for written warnings for “light”
second offenses, or for “more severe” first offenses.”] “Ver-
bal” [oral] warnings, as was Neely’s, are issued for “light”

3 As, for example, in Blue Square II, 293 NLRB 29, 38 (1989).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 234
offenses. Rule 2.1.1.1. (G.C. Exh. 2 at 2.) Indeed, Neely’s
coworker, Belinda Lowe, left the UPC code off over 100 lamps
and was merely suspended rather than “industrially hanged.”
Overbeck’s posturing at trial (2:343) that, had Neely missed
applying the code to even one more light that day, “she would
have been suspended or terminated,” merely highlights the
animus that he and Lampi have against Neely.
Overbeck’s exaggerated protests of Neely’s “severity prob-
lem,” in light of his demeanor, convince me that, in an after-
the-fact effort he is trying to convert an incident warranting a
first-step oral warning into a corporate tragedy. His purpose, I
find, is to add weight to what he and Lampi now perceive to be
a flimsy basis for discharge. In fact, no “severity problem” is
shown. Accordingly, I find that Overbeck and Lampi engaged
in an exaggerated effort to portray the UPC mistake as a near-
tragedy, all for the pretextual purpose of enhancing Lampi’s
chances for success in this proceeding.
Turn now to McKenzie’s comment, at the bottom of the dis-
charge paper (G.C. Exh. 6), about knowing of no reason for the
“drastic change in Connie’s performance.” At trial Overbeck
testified (2:410) to essentially the same by asserting, respecting
Neely’s work during the second shift (June 24 through July 12),
that “there should have been no reason why she shouldn’t have
made her efficiency.” Although the Government argues that
Neely’s efficiency score was adversely impacted by being
paired with slow workers, and having to work on the maxi line
when her primary experience was on the mini line, the evidence
does not support the requested findings.
However, it appears that Lampi knew very well that Neely
was experiencing personal problems that contributed to the
decline in her production efficiency. One of these was the sex-
ual harassment matter. The day (July 11) that Neely’s produc-
tion level hit bottom, at 31 percent, is the very day that Neely
met with Overbeck and President Holderer to lodge her claim
of sexual harassment. (2:267–270, Overbeck; G.C. Exh. 16,
23). Although, as Overbeck explains (2:269), the 30-minute
down time for the meeting was not counted against Neely’s
efficiency score for the day, one cannot equate the nature of
that problem, and its emotional truama, with a 30-minute break
period which is not counted against the efficiency score.
Lampi’s top management (Holderer and Overbeck) had first-
hand knowledge that Neely was under emotional stress.
As noted earlier in the overview section, Lampi investigated
Neely’s sexual harassment allegation. Unable to substantiate
the version of either party, Lampi counseled both on July 15.
McKenzie admits (3:575) that Holderer informed her of the
allegation. Lampi also knew that Neely’s 2 worst days, by far,
were her 31 percent the day (July 11) she lodged her complaint,
and the very next day, Friday, July 12, at 34 percent. (G.C.
Exh. 5c.) It does not take the wisdom of Solomon to recognize
that there probably was a connection, and to discuss the matter
with Neely or to make some allowance for it. It was no acci-
dent, I find, that Lampi did neither. Thus, I find that it is
falsely misleading for Overbeck, McKenzie, and Lampi to con-
tend that they had no idea of what could have been causing
Neely’s July percentage to take a dip. More than that, I find
that their false statements are pretextual, and made for the pur-
pose of hiding their own knowledge in order to suggest that no
reason existed that might explain the drop. This, in turn, was to
justify accelerating the discipline so as to bypass a suspension
and go straight to a discharge. The motive for this, I find, was
to get rid of Neely because of her strong and open support of
the Union, and particularly because of the damaging testimony
which she gave before Judge Metz in March 1996.
Neely also was under stress because of her mother’s illness.
Now the mother had been ill the whole time that Neely worked
at Lampi. (1:216.) Holderer knew this, for about late 1994
Holderer overruled McKenzie and excused Neely from work
the next day so that Neely could be instructed on how to attach
the dialysis equipment to her mother and to learn how to give
the mother insulin shots. (3:650–654, 670.) During the sum-
mer of 1996, as McKenzie admits (3:529, 579), she learned
from Neely that her mother was being hospitalized. Neely
confirms. (3:647.) While this is some evidence that Neely
would be under stress about her mother (McKenzie, in her role
as a supervisor, apparently never inquired about the mother’s
condition after her hospitalization), there is no direct evidence
that Neely ever told McKenzie that her mother’s condition was
deteriorating. Nor is there any direct evidence that Overbeck or
Holderer was aware even that Neely’s mother had been hospi-
talized, much less that her condition was deteriorating.
Overbeck denies (3:684) that McKenzie ever told him that
Neely had told McKenzie that the mother’s illness was affect-
ing her ability to make production. Disbelieving Overbeck,
whom I generally do not credit, I find that McKenzie would
have told Overbeck and Holderer that Neely’s mother had been
hospitalized, and I further find that she did tell them. Rather
than serving as a reason to confer with Neely about her
mother’s condition, and its possible impact on her production,
that information was swept under the rug. Thus, in addition to
knowing about the sexual harassment matter probably ad-
versely impacting on Neely’s efficiency rate, Lampi also knew
that Neely’s mother was in the hospital. As those two personal
problems of Neely were inconvenient obstacles in Lampi’s way
of getting rid of Neely, Lampi simply ignored them and pre-
tended that it did not know of any reason for Neely’s low pro-
duction. This was for the purpose of accelerating its discipline
of Neely and to bypass the suspension step.
A few more words are to be said about the suspension step.
Under Lampi’s rule 2.1.2, suspension can be imposed for either
a severe offense or a second or third offense. As mentioned
earlier, discharge can be the penalty for a “third or fourth in-
fraction, as well as a severe infraction . . . .” (G.C. Exh. 2 at 2-
3.) Lampi proceeded under rule 2.2.9, which Overbeck asserts
if for persons with “multiple problems.” (2303, 407–408.) But
on July 3 Ginger Laudermilk was given a suspension under
2.2.9, and her stated conduct (failure to follow instructions)
constituted insubordination [an independent ground for dis-
charge under rule 2.2.8], the failure to wear safety glasses, and
poor efficiency. The text bluntly warns that the next action will
be termination. (G.C. Exh. 26b.) Moreover, Laudermilk’s
insubordinate failure to follow instructions apparently had been
a repeated problem, for her first warning (G.C. Exh. 26a) on
May 24 also included that infraction.
Contrasted with Laudermilk’s insubordinate conduct, none
of Neely’s infractions involved deliberate misconduct. Even if
the August 1995 safety mistake (G.C. Exh. 14) is counted
(something Lampi did not do until the trial), that was an iso-
lated, accidental mistake—and Neely’s only safety mistake.
Similarly, Neely’s mistake on the UPC code was unintentional
and isolated, and the only performance mistake of her career.
As the July 1996 absenteeism was the only one current in the
attendance track, and the UPC code mistake the only one
counted in the job performance track, Neely was not nearly the
LAMPI LLC 235
disruptive employee that Laudermilk was stated, on the warn-
ings, to be. And even if the August 1995 safety mistake is
counted against Neely, that isolated matter does not constitute
any kind of a continuing problem.
Respecting Neely’s drop in efficiency, which Overbeck
characterizes as a “serious” violation (2:402), Overbeck’s own
question, of why, reveals his awareness that Neely was capable
of doing much better, and generally had done very well on
production. Even if McKenzie, as asserted, told Overbeck that
she had tried talking to Neely but that Neely appeared uncon-
cerned, the overall record compels the finding, which I make,
that Lampi, as it did with Ginger Laudermilk, would have given
Connie Neely a “wake-up” suspension. Instead, Lampi accel-
erated past the suspension step and chose discharge. It did so, I
find, for the unlawful reasons already described.
6. Motivation
Based on the findings I have made of unlawful animus,
unlawful disparity, and pretext for an unlawful purpose, I fur-
ther find that a moving reason for Lampi’s August 5, 1996
discharge of Connie Neely was her openly strong support for
the Union and, especially, her important testimony for the Gov-
ernment, and against Lampi, at the March 1996 trial before
Judge Albert A. Metz.
Having found that Neely’s discharge was unlawfully moti-
vated, the question now turns to whether Lampi demonstrated
that it would have fired Neely even in the absence of her union
activities or her March 1996 testimony. My findings, including
those of a pretextual basis for the discharge, show that Lampi
has failed to carry its burden in this regard. As my findings
show, absent its discriminatory motivation, Lampi would have
imposed a penalty no stronger than suspension. I therefore find
that, as alleged, Respondent Lampi violated Section 8(a)(3) and
(4) and (1) of the Act by discharging Connie Neely on August
5, 1996. I shall order Lampi to reinstate Connie Neely and to
make her whole, with interest.
CONCLUSIONS OF LAW
By discharging Connie Neely on August 5, 1996, Respon-
dent Lampi has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (4) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer her reinstatement and make her whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4

4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
ORDER
The Respondent, Lampi LLC, its officers, agents, successors,
and assigns, shall
1.Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting International Brotherhood of Electrical
Workers, AFL–CIO, Local 558 (Union), or any other union, or
because he or she has given testimony before the Board under
the National Labor Relations Act.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Connie
Neely full reinstatement to her former job or, if that job no
longer exists, reinstatement to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Connie Neely whole for any loss of earnings and
other benefits suffered as a result of the unlawful action against
her, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Connie
Neely, and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not be
used against her in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its
plant at Huntsville, Alabama copies of the attached notice
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 5, 1996, the date of the
unfair labor practice found in this proceeding.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

Board and all objections to them shall be deemed waived for all pur-
poses.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 236
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT do anything that interferes with, restrains,
or coerces you with respect to these rights, and more specifi-
cally:
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting the International Brotherhood of
Electrical Workers, AFL-CIO, Local 558 (Union), or any other
union, or for giving testimony before the Board under the Na-
tional Labor Relations Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL offer Connie Neely full reinstatement to her for-
mer job or, if that job no longer exists, to a substantially
equivalent position without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Connie Neely whole for any loss of earn-
ings and other benefits resulting from her unlawful discharge
on August 5, 1996.
WE WILL remove from our files any reference to the unlaw-
ful discharge of Connie Neely and WE WILL inform her that
this has been done and that the discharge will not be used
against her in any way.

LAMPI LLC