Mesker Door, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 13, 2007

10-CA-035863 (N.L.R.B. Nov. 13, 2007)

JD(ATL)–35–07
Huntsville, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
5
MESKER DOOR, INC.
and CASES 10–CA–3586310
10–CA–36270
UNITED STEELWORKERS OF 10–CA–36422
AMERICA, AFL–CIO–CLC
and 10–CA–3593815
10–CA–36284
10–CA–36372
ROLLIE POWELL, AN INDIVIDUAL
20
and 10–CA–36363
CECIL HERREN, AN INDIVIDUAL
25
John D. Doyle, Jr., Esq., for the General Counsel
Mr. Morris Anderson, for the Charging Party
William F. Kaspers, Esq., for the Respondent
30
DECISION
Statement of the Case35
KELTNER W. LOCKE, Administrative Law Judge: In this case, the General Counsel
alleges that Respondent violated Section 8(a)(5) by withdrawing recognition from the Union
after committing unremedied unfair labor practices. Although the record proves that Respondent
committed some of the violations alleged, it fails to provide specific proof of a causal 40
relationship between the unfair labor practices and the Union’s loss of majority status.
Therefore, I conclude that Respondent lawfully withdrew recognition.
Procedural History
45
This case began on September 9, 2005, when the United Steelworkers of America, AFL–
CIO–CLC (the “Union”) filed an unfair labor practice charge against Mesker Door, Inc. (the
JD(ATL)–35–07
2
“Respondent”). The National Labor Relations Board (the “Board”) docketed this charge as Case
10–CA–35863.
On October 24, 2005, Rollie Powell, an Individual (“Charging Party Powell”) filed the
initial charge in Case 10–CA–35938. Powell amended this charge on December 12, 2005.5
On November 30, 2005, the Regional Director for Region 10 of the Board issued a
Complaint and Notice of Hearing in Case 10–CA–35863. In doing so, the Regional Director
acted for, and with authority delegated by, the Board’s General Counsel (the “General Counsel”
or the “government”).10
On December 15, 2005, the Regional Director issued an Order Consolidating Cases (10–
CA–35863 and 10–CA–35938) and Consolidated Complaint. On December 29, 2005, the Board
received Respondent’s timely Answer. Also on December 29, 2005, the Regional Director
issued a Notice of Hearing scheduling this matter for hearing on February 6, 2006. However, by 15
Order dated January 26, 2006, the Regional Director postponed the hearing indefinitely.
On May 16, 2006, the Union filed a charge against Respondent in Case 10–CA–36270.
On May 26, 2006, Charging Party Powell filed a charge against Respondent in Case 10–20
CA–36284.
On July 14, 2006, Cecil Herren, an Individual (“Charging Party Herren”) filed a charge
against Respondent in Case 10–CA–36363. Herren amended this charge on September 15, 2006.
25
On July 19, 2006, Charging Party Powell filed a charge against Respondent in Case 10–
CA–36372.
On August 18, 2006, the Union filed a charge against Respondent in Case 10–CA–36422.
30
On September 21, 2006, the Regional Director issued an Order Consolidating Cases and
Amended Consolidated Complaint in Cases 10–CA–35863, 10–CA–35938, 10–CA–36372 and
10–CA–36363. Respondent filed a timely Answer.
On November 22, 2006, the Acting Regional Director issued an Order Consolidating 35
Cases, Second Amended Consolidated Complaint and Notice of Hearing in Cases 10–CA–
35863, 10–CA–35938, 10–CA–36284, 10–CA–36363, 10–CA–36372, 10–CA–36270, and 10–
CA–36422.
On December 6, 2006, the Regional Director issued an Order Consolidating Cases and 40
Third Amended Consolidated Complaint and Notice of Hearing in Cases 10–CA–35863, 10–
CA–35938, 10–CA–36284, 10–CA–36363, 10–CA–36372, 10–CA–36270, and 10–CA–36422.
For brevity, this pleading will be referred to as the “Complaint.” Respondent filed a timely
Answer (the “Answer”) dated December 14, 2006.
JD(ATL)–35–07
3
On January 3, 2007, the hearing in this matter opened before me in Huntsville, Alabama.
The parties presented evidence on that date on January 4 and 5, 2007, and on January 8 through
12, 2007.
5
On February 20, 2007, counsel presented oral argument.
Admitted Allegations
Based on admissions in Respondent’s Answer and on stipulations received during the 10
hearing, I make the findings of fact discussed in this section of the Decision.
Respondent has admitted it received the various unfair labor practice charges as alleged
in the Complaint but, for lack of knowledge, has not admitted when the charging parties filed
those charges with the Board. Based on the presumption of administrative regularity, and in the 15
absence of any evidence to the contrary, I find that the charging parties filed the charges on the
dates alleged. Further, I find that the General Counsel has proven the allegations set forth in
Complaint paragraphs 1(a) through 1(i).
Based on Respondent’s admission, I find that at all material times Respondent, an 20
Oklahoma corporation with an office and facility located in Huntsville, Alabama, has been
engaged in the manufacture of metal doors, frames and accessories, as alleged in Complaint
paragraph 2.
Based on Respondent’s admission, I find that during the 12–month period preceding 25
issuance of the Complaint, Respondent sold and shipped finished goods valued in excess of
$50,000 directly to customers located outside the State of Alabama, as alleged in Complaint
paragraph 3.
Although Respondent denied the legal conclusion alleged in Complaint paragraph 4, its 30
Answer stated that “Respondent is willing to admit all of the facts upon which the legal
conclusion could be based.” Moreover, as described above, Respondent has admitted the facts
alleged in Complaint paragraphs 2 and 3. Based on these facts, I conclude that at all material
times, Respondent has been and is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.35
Moreover, based on Respondent’s Answer and a stipulation during the hearing, I find that
the following persons were, during the material time period, Respondent’s supervisors and
agents within the meaning of Section 2(11) and 2(13) of the Act, respectively: Steven C. Frates,
Vice President; Michael Torres, both in his present capacity of marketing and customer relations 40
manager and in his former capacity as plant manager; George Roth, Plant Manager; James
Smith, Accounting Manager; Karen Temple, Assistant to the Comptroller; Raymond Duncan,
Frame Line Supervisor.
Although Respondent’s Answer denied the legal conclusion that the Union was a labor 45
organization, it further stated that “Respondent is willing to admit all of the facts necessary to
JD(ATL)–35–07
4
draw the legal conclusion alleged in paragraph 5.” Moreover, Respondent’s Answer admitted
that pursuant to a secret ballot election conducted March 10, 2005, under the supervision of the
Regional Director of Region 10 of the National Labor Relations Board, in Case 10–RC–15502,
the Union was certified by the Board on March 22, 2005 as the exclusive collective bargaining
representative of the employees in a unit described in Complaint paragraph 7. Accordingly, I 5
conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act.
Respondent’s Answer admitted “all of the facts upon which a conclusion could be
drawn” that the unit described in Complaint paragraph 7 was an appropriate unit for collective
bargaining, within the meaning of Section 9(b), during the time period March 10, 2005 (the date 10
of the Board–conducted election) to May 8, 2006 (the date Respondent withdrew recognition).
Although Respondent has asserted that the Union had lost the support of a majority of unit
employees on or before May 8, 2006, such a loss of majority support would not, in itself, make
the unit inappropriate.
15
Based on the Board’s certification in Case 10–RC–15502, as well as the admissions in
Respondent’s Answer, I conclude that at all material times, the following unit of Respondent’s
employees constituted an appropriate unit for collective bargaining within the meaning of
Section 9(b) of the Act:
20
All full–time and regular part–time production and maintenance employees employed by
the Employer at its Huntsville, Alabama facility, including all welding employees, quality
assurance employees, shipping and receiving employees and warehouse employees, but
excluding all office clerical employees, technical employees, professional employees,
guards, and supervisors as defined by the Act.25
Based upon the admissions in Respondent’s Answer, I further find that during the time
period March 22, 2005 to May 8, 2006, the Union was the exclusive representative, within the
meaning of Section 9(a) of the Act, of the employees in the unit described above. Whether the
Union continued to enjoy that status after May 8, 2006, as alleged in Complaint paragraph 8, is a 30
contested issue which will be examined later in this Decision.
Respondent has admitted, and I find, that it withdrew recognition from the Union on May
8, 2006, as alleged in Complaint paragraph 20.
35
Based upon Respondent’s admission, I find that on June 8, 2005, it suspended employee
Anthony Lyles for one day, as alleged in Complaint paragraph 16(a). Also based upon
Respondent’s admission, I find that on October 13, 2005, it imposed on employee Rollie Powell
a one–day suspension, as alleged in Complaint paragraph 16(c).
40
Additionally, based on Respondent’s Answer, I find that on June 21, 2006, it discharged
employee Cecil Herren, as alleged in Complaint paragraph 16(d).
Further, based on Respondent’s Answer I find that on July 12, 2006, it imposed a 2–day
suspension on employee Rollie Powell, as alleged in Complaint paragraph 16(e); that on July 14, 45
2006, it reassigned Rollie Powell to different duties, as alleged in Complaint paragraph 16(f);
resulting in a pay cut, as alleged in Complaint paragraph 16(g).
JD(ATL)–35–07
5
Respondent objected that the allegations in Complaint paragraph 21 were irrelevant, but
nonetheless admitted them. Based on Respondent’s admissions, I find that on about May 15,
2006, Respondent implemented certain changes to the wage rates of employees in the bargaining
unit described above.5
Respondent similarly objected to the relevance of the allegations raised by Complaint
paragraph 22, but admitted them. Accordingly, I find that on or about June 5, 2006, the
Respondent implemented certain changes in its points and attendance system applicable to
employees in the bargaining unit, and that such changes pertained to the method and rate by 10
which employees “earned back” attendance points assessed to them, the number of allowable
points, and the cap on the number of points that could be “earned back” under the system.
Complaint paragraph 23 alleged that in about July 2006, Respondent implemented a
change to the rules pursuant to which it calculated and determined whether to pay incentive 15
bonuses to bargaining unit employees. Respondent’s Answer objected to the relevance of this
allegation, but subject to that objection, admitted that “around August 2006, the Respondent
changed its incentive bonus system so that eligibility for a bonus now depends upon productivity
and profitability.” Based on this admission, I find that Respondent did change its rules regarding
the payment of incentive bonuses to bargaining unit employees, but did so in August 2006 rather 20
than in July 2006.
Complaint paragraph 25 alleges that Respondent unilaterally engaged in the acts and
conduct described in Complaint paragraphs 21 through 23, inclusive, without prior notice to the
Union and without having afforded the Union an opportunity to negotiate and bargain as the 25
exclusive representative of Respondent’s employees with respect to such acts and conduct and
the effects of such acts and conduct. Respondent objected to the relevance of this allegation on
the basis that it had lawfully withdrawn recognition from the Union. Its Answer further stated as
follows: “Subject to the Respondent’s irrelevancy objection, Respondent admits that it
unilaterally implemented any changes made to the wages, hours, and working conditions of its 30
production, maintenance and warehouse employees since the Respondent withdrew recognition
of the Union on May 8, 2006. However, the Respondent denies the allegations set forth in
paragraph 25. . .since prior notice to the Union and an opportunity to negotiate and bargain as the
exclusive representative of the Respondent’s employees was afforded to the Union between
March 22, 2005 and May 8, 2006, with respect to changes in wage rates, the attendance point 35
system, and modification of the incentive bonus system to a bonus system based upon
productivity and profitability.”
Based on Respondent’s admission, I find that it unilaterally implemented the changes
described in Complaint paragraphs 21 through 23. Whether it breached a duty to bargain in good 40
faith with the Union depends on whether it acted lawfully when it withdrew recognition from the
Union. That issue will be discussed later in this Decision.
JD(ATL)–35–07
6
Disputed Issues
Section 8(a)(1) Allegations
5
Complaint Paragraphs 10 and 11
Complaint paragraph 10 alleges that on about March 9, 2005, Respondent, by Michael
Torres, at Respondent’s facility, reiterated an overly broad verbal admonition to employees not
to discuss the Respondent’s handling of requests for leave under the Family and Medical Leave 10
Act, the charging of vacation days in such circumstances, and other terms and conditions of
employment. Complaint paragraph 26 alleges that this conduct violated Section 8(a)(1) of the
Act. Respondent has denied both allegations.
Complaint paragraph 11 alleges that on or about March 9, 2005, Respondent, by Michael 15
Torres, at Respondent’s facility, threatened to discipline its employees if they tracked absences
or engaged in discussions regarding the Family and Medical Leave Act, vacations, and other
terms and conditions of employment. Complaint paragraph 26 alleges that this conduct violated
Section 8(a)(1) of the Act. Respondent has denied both allegations.
20
The conduct described in Complaint paragraphs 10 and 11 allegedly took place the day
before the Board conducted the secret ballot election which the Union won. Michael Torres,
who was plant manager at the time, testified about a conversation he had on that date with
employee Janice Medlock.
25
Torres explained that previously, he had received complaints that Medlock was “keeping
up with people’s absences in the plant.” On one occasion before March 9, 2005, Torres had
spoken with Medlock about this matter telling her that other people’s absences really were not
her concern and that she “ought to keep working.”
30
After receiving another similar complaint, Torres spoke again with Medlock, this time on
March 9, 2005. Although Medlock’s immediate supervisor, Billy Ray McFall, was present
during this discussion, neither McFall nor Medlock testified. Torres gave the only testimony
concerning this matter, but the record also includes a note describing the conversation.
35
(Procedurally, this exhibit came into the record in a somewhat unusual manner.
Although the General Counsel offered this document while presenting the government’s case in
chief, it is marked Respondent’s Exhibit 2. Both the General Counsel and Respondent agreed to
its admission on this basis and I received it without objection. It already was in evidence when,
after the General Counsel rested, Respondent moved to dismiss the allegations raised by 40
Complaint paragraphs 10 and 11 for want of proof. Based in part on this evidence, I denied the
motion.)
JD(ATL)–35–07
7
The date “3/9/05” appears at the top of Respondent’s Exhibit 2 and the name “Mike
Torres” appears at the bottom. It states, in its entirety, as follows:
Pat Schnitzmeir heard Janice talking to Charlotte Washington about keeping up
with everyone’s days missed. Pat was upset about it and brought it to Karen Temple’s 5
attention. Karen told me about it.
On the previous Friday (March 4th), I had talked to Janice about keeping up with
everyone’s absences. She said she was doing it for herself. I told [her] that it wasn’t
necessary and we treated everyone equally. I told her that going around talking to people 10
about FMLA, vacations, etc. could jeopardize her job. She assured me that she wasn’t
talking to anyone.
I then talked to Janice Medlock with Billy Ray McFall present. I told her once
again that I wasn’t sure why she was doing this. I also told her that last week she had 15
said that this was something that she was keeping for her own personal use. I told her
that this was the last time I wanted to hear from another employee that she was
keeping records on them. If it happened again she would be disciplined and
receive up to a 1–day suspension.
20
Although Torres testified that during this conversation with Medlock, there was no
mention either of the Family Medical Leave Act (FMLA) or of employees’ vacations, the March
9, 2005 note, quoted above, specifically refers to both. Based on the note, I conclude that Torres
did mention both.
25
To support its argument that Torres’ comments to Medlock violated Section 8(a)(1) of
the Act, the government cites Triana Industries, Inc., 245 NLRB 1258 (1979), Scientific–Atlanta,
Inc., 278 NLRB 622 (1986), and Automatic Screw Products Co., 306 NLRB 1072 (1992). In
these case, the Board found that the respondents had committed unfair labor practices by
prohibiting their employees from discussing their wages. In Triana Industries, the Board stated30
Section 7, which grants employees the unfettered right to engage in concerted activities
for mutual aid and protection, encompasses the right of employees to ascertain what wage
rates are paid by their employer, as wages are a vital term and condition of employment.
Respondent’s statement, by directing employees not to engage in such activity (and thus 35
implying that the Employer does not look with favor upon employees who engage in such
activity) clearly tends to inhibit employees in the exercise of their Section 7 rights.
245 NLRB at 1258. Just as wage rates constitute terms and conditions of employment, so do
vacation days and FMLA leave. More precisely, the way an employer handles employee 40
requests for such leave significantly affects working conditions. Logically, a rule restricting the
discussion of these terms of employment interferes with the exercise of Section 7 rights just as
much as a rule forbidding employees from talking about wages.
In determining whether a statement unlawfully interferes with the exercise of Section 7 45
rights, the Board does not consider the intent of the speaker or the reaction of the particular
listener. Rather, the Board “applies the objective standard of whether the remark tends to
interfere with the free exercise of employee rights.” Scripps Memorial Hospital Encinitas, 347
JD(ATL)–35–07
8
NLRB No. 4 (May 15, 2006), citing Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
Therefore, although I find that Torres did not intend to interfere with the exercise of Section 7
rights, that innocence does not immunize his remarks.
Torres had received complaints from employees made uncomfortable by Medlock’s 5
unexplained watchfulness. Following up on those complaints, Torres necessarily would focus on
Medlock’s reported practice of placing other workers under a kind of “surveillance,” rather than
on any communication Medlock might have with other employees concerning the way
Respondent administered its leave policy.
10
Moreover, the record does not indicate that Medlock did or said anything to indicate she
was keeping track of employees’ leave so that she could discuss this working condition with
them. To the contrary, Medlock told Torres that she wasn’t talking to anyone about this matter.
Thus, Torres had little reason to view the warning he gave Medlock as a restraint on employee
discussions about working conditions.15
Therefore, if establishing an 8(a)(1) violation required evidence of unlawful intent, I
would recommend dismissal of these allegations. However, Torres’ statements to Medlock must
be judged not on their intended purpose but rather on the effect these statements likely would
have on the exercise of Section 7 rights. By analogy, a rock slide is innocent of intent, yet it 20
impedes traffic just as much as a roadblock.
However, in one limited respect, Torres’ intent does have some relevance. In
determining whether a particular statement interferes with the exercise of Section 7 rights, the
Board considers the statement in its total context. When a speaker’s unlawful intent reasonably 25
would be obvious to the listener, the presence of such animus certainly affects the message
communicated by the words. Ambiguous words may take on a chilling meaning when spoken by
someone openly hostile to protected activities. Here, the converse may be argued, that Torres’
motive was so obvious that a listener reasonably would not understand his words to prohibit
discussion protected by Section 7.30
Whatever force such an argument might have in other circumstances, it must be rejected
here. Torres told Medlock “that going around talking to people about FMLA, vacations, etc.
could jeopardize her job.” That statement is not ambiguous. On its face, Torres’ warning
forbids an employee from discussing certain terms and conditions of employment. An employee 35
reasonably would conclude that any discussion of these working conditions could result in
discipline.
In these circumstances, I conclude that Torres’ remarks did interfere with, restrain and
coerce employees in the exercise of Section 7 rights. Therefore, I recommend that the Board 40
find that Respondent violated Section 8(a)(1) of the Act by the conduct alleged in Complaint
paragraphs 10 and 11.
It isn’t entirely clear whether Respondent is asserting that the 6–month “statute of
limitations” in Section 10(b) of the Act bars these allegations. Respondent does note that 45
Manager Torres first cautioned Medlock before March 9, and that this earlier discussion took
JD(ATL)–35–07
9
place outside the 10(b) period. However, the Complaint does not allege that Torres committed
an unfair labor practice during this earlier conversation.
In oral argument, Respondent stated that the conduct alleged in Complaint paragraphs 10
and 11 took place “six months to the day before the September 9 charge was filed.” Thus, 5
Respondent appears to recognize that these allegations are, in fact, timely and it appears that
Respondent is not raising a Section 10(b) defense with respect to them. However, even if
Respondent does assert such a defense, I conclude that Section 10(b) does not bar the litigation
of the allegations in Complaint paragraphs 10 and 11.
10
The Union filed the first charge in this proceeding on September 9, 2005. This charge,
docketed as Case 10–CA–35863, raised a number of allegations, including the following:
On an occasion in about April 2005, the Employer, by Mike Torres, at the Employer’s
facility, directed employees not to discuss with one another the Employer’s practices with 15
respect to its handling of absences by unit employees, a term and condition of
employment.
Notwithstanding that the charge alleges that the incident occurred “in about April 2005,”
this language clearly describes Torres’ warning to Medlock on March 9, 2005. Alleging an 20
incorrect date does not change the determinative fact, that the conduct took place within 6
months of the filing of the charge. Since the conduct itself fell within the 10(b) period, I
conclude that the allegations may be litigated.
Respondent also argues that on March 16, 2005, it reached an agreement with the Union 25
“not to pursue any allegations predating the [March 10, 2005] election except [the allegations]
involving the termination of Nathan Vereen.” However, Respondent does not assert that the
General Counsel entered into such an agreement.
The record does not indicate that the Charging Party ever withdrew, or requested to 30
withdraw, the charge in Case 10–CA–35863. The record also does not establish that the
Charging Party ever amended this charge to delete the language quoted above. Accordingly, it
remained within the General Counsel’s discretion to proceed on this allegation. In these
circumstances, I reject Respondent’s argument and adhere to my recommendation that the Board
find that Respondent violated Section 8(a)(1) of the Act by the conduct alleged in Complaint 35
paragraphs 10 and 11.
Complaint Paragraph 12
Complaint paragraph 12 alleges that on occasions in mid–September 2005 and mid–40
October 2005, the Respondent, by its agent, at a Hampton Inn hotel in Huntsville, Alabama,
threatened employees that the Respondent would withhold pay raises from employees because
the Union and employees had pursued charges and given testimony pursuant to the National
Labor Relations Act. Complaint paragraph 26 alleges that this conduct violated Section 8(a)(1)
of the Act. Respondent has denied these allegations.45
JD(ATL)–35–07
10
The individual identified in the Complaint as “Respondent’s agent” is its attorney,
William Kaspers. The record clearly establishes his role as Respondent’s spokesperson during
negotiations with the Union and the statements he made during the course of the bargaining are
attributable to Respondent. Credible evidence clearly shows that Kaspers possessed both actual 5
and apparent authority to speak on behalf of Respondent, and I conclude that he was
Respondent’s agent within the meaning of Section 2(13) of the Act.
The Union’s bargaining committee consisted of Union representative Morris Anderson
and three employees, Rollie Powell, Anthony Johnson, and Regan Long. As noted above, 10
William Kaspers served as Respondent’s chief negotiator. Michael Torres, who held the
positions of plant manager and, subsequently, customer relations manager, also participated.
Based upon my observations of the witnesses, I conclude that Regan Long provided the
most accurate testimony. Long’s demeanor, especially on cross–examination, persuades me that 15
his testimony is more reliable than that of other witnesses. To the extent that the testimony of
other witnesses conflicts with that of Long, I do not credit it.
Rollie Powell’s demeanor also impressed me as that of a sincere and honest witness. At
times during his testimony, Powell appeared to become indignant, but I discerned no artifice or 20
lack of sincerity. Additionally, based upon my observations, I conclude that the third employee
member of the Union’s negotiating committee, Anthony Johnson, also brought to the witness
stand an earnest intent to testify accurately. At times, Johnson’s memory of events lacked detail,
but the want of specifics did not lead to confabulation. In sum, I conclude that the testimony of
Long, Powell and Johnson concerning the negotiating sessions should be credited, and I rely on 25
it.
The Charging Parties in the present cases filed a number of unfair labor practice charges
against the Respondent. From the outset of collective bargaining, Respondent protested that the
parties should address through the negotiating process the issues raised by the charges, rather 30
than taking those issues to the Board.
Manager Torres testified that at “[p]retty much every bargaining session, starting with the
first session, there were charges pending with the NLRB and we asked that we try to resolve
these issues at the table rather than going to the NLRB.” Torres also testified that he 35
remembered “comments being made” during the September and October 2005 bargaining
sessions “that basically the company didn’t have unlimited resources, the lawyer didn’t work for
free.”
Torres’ testimony considerably downplays how greatly the unfair labor practice charges 40
vexed Respondent. Respondent’s Attorney Kaspers returned to this subject repeatedly during
negotiations, even though the filing of unfair labor practice charges is not a mandatory subject of
bargaining. Torres’ vague recollection about “comments being made” that “the company didn’t
have unlimited resources” does not capture either Kaspers’ words or their gravamen, but the
three employee members of the Union’s bargaining committee provide a consistent picture.45
JD(ATL)–35–07
11
Long testified that during a bargaining session in mid–September 2005, Kaspers said “I
hope you all know for keeping on this NLRB on these charges all the time and us having the cost
of litigating, you just done away with any raises you was going to get.” My observations lead
me to conclude that Long was a reliable witness and the fact that he may have paraphrased some
of Kaspers’ words does not diminish his credibility. Based on Long’s testimony, which I credit, 5
I find that Kaspers referred to the unfair labor practice charges and then told the employees that
they had done away with any raises they were going to get.
Another member of the Union’s negotiating committee, Rollie Powell, testified that
during the mid–September 2005 bargaining session, Kaspers said that “you people” would not 10
get a 35–cents per hour pay raise “because of these charges. The Company will have to pay
money to defend against these charges. It is a distraction. And you have to drop the charges so
we can move these negotiations along.” Based on Powell’s credited testimony, I find that
Kaspers did tell the employees on the Union’s negotiating committee that they would not receive
the raise because of the unfair labor practice charges.15
Further, I find that Kaspers told them that they would have to drop the charges to move
the negotiations along. The Complaint does not allege this statement, linking progress in
negotiations to dropping the unfair labor practice charges, to be a separate violation. However, it
constitutes part of the overall context and thus should be considered in determining what 20
Kaspers’ words about the unfair labor practice charges reasonably would convey to employees.
Kaspers’ words about “moving the negotiations along” acquire additional significance in
light of the parties’ bargaining framework. The parties had deferred the negotiation of economic
terms until after reaching agreement on non-economic items. Thus, a statement that the 25
Charging Parties would have to drop their unfair labor practice charges to “move these
negotiations along” implies that the Union might not even reach the point of discussing a pay
raise so long as the unfair labor practice charges remained pending.
The third employee member of the Union’s negotiating committee, Anthony Johnson, 30
testified that, during a bargaining session in October 2005, Kaspers said words to the effect of
“thank you for paying me,” explaining that Respondent paid him because of the charges being
filed. According to Johnson, Kaspers added, “you’re talking yourself out of raises, you know.”
Union Representative Morris Anderson testified that Kaspers discussed the filing of 35
charges, but Anderson could not recall clearly what Kaspers said. “I believe,” Anderson
testified, “he was indicating that he felt those charges were frivolous and asked us to attempt to
resolve whatever issues occur, at the bargaining table.” When the General Counsel directed
Anderson’s attention to the September 2005 bargaining session, Anderson testified that he
believed Kaspers had raised the subject of unfair labor practice charges at this meeting: “I think 40
he had mentioned to the committee and myself again that our guys was filing charges that he
believed were frivolous and I believe he also mentioned that these – I think he indicated these
charges were expensive and would have an effect on economics.”
Anderson’s testimony, although vague, does not contradict that of Long, Powell and 45
Johnson. To summarize, based on the credited testimony of these three employee witnesses, I
JD(ATL)–35–07
12
find that during the September 2005 bargaining session, Kaspers said that because of the unfair
labor practice charges, the employees had “done away with any raises they were going to get.”
At this September 2005 meeting, Kaspers also told the Union negotiators that because of the
charges, employees would not receive a 35 cent raise, and that they would have to drop the
charges to “move things along.”5
Further, I find that at a negotiating session in October 2005, Kaspers referred to the unfair
labor practice charges and told the employees that they were talking themselves out of raises.
Respondent argues that when Kaspers indicated that the unfair labor practice charges 10
would have an adverse effect on raises, he was not making a threat, but instead was making an
obvious commonsense observation. Respondent reasons that because of the unfair labor practice
charges, it had to spend money on legal counsel, and that this expenditure necessarily diminished
the funds available to raise employees’ pay.
15
However, even assuming that Respondent articulated this reasoning as clearly at the
bargaining table as it did in this proceeding, I do not judge the words for the soundness of their
logic as a syllogism. Rather, applying an objective standard, and considering the entire context, I
must determine what message those words would communicate to employees. Then, I must
weigh what effect that message reasonably would have on employees’ willingness to exercise 20
their statutory rights, including, notably, the right to file unfair labor practice charges with the
Board.
Board precedent distinguishes between a lawful prediction and an unlawful threat. Like a
prediction, a threat makes a kind of “prophecy” about the consequences of a particular action. 25
However, the threat carries the additional connotation that the speaker, through some action, is
going to bring about the predicted result.
Under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), a lawful prediction must be
based on “objective fact to convey an employer’s belief as to demonstrably probable 30
consequences beyond his control.” Kaspers’ words, communicating that the existence of the
unfair labor practice charges prevented the employees from receiving a pay raise, do not concern
a demonstrably probable consequence beyond the Respondent’s control.
Obviously, Respondent does not have an unlimited amount of money. No one does. But 35
recognition that Respondent’s bank account can be exhausted says nothing about the amount of
money actually in that account. There is no reason to believe that the bank account either is, or
is not, large enough to pay both the attorney’s fee and raise the employees’ pay.
Respondent did not tell the employees, for example, “we have ‘x’ dollars to spend and 40
our attorney is billing us more than that for his services in connection with the unfair labor
practice charges.” Here, I need not speculate regarding whether such a statement would have
satisfied the requirement that the prediction be based on objective facts. Respondent did not
make such a statement. Further, the record provides no factual basis for reaching any conclusion
about Respondent’s ability to pay its lawyer and also increase employees’ wages.45
JD(ATL)–35–07
13
Similarly, the record does not demonstrate that filing the unfair labor practice charges
depleted all money available for a pay raise through some mechanism or foreseeable chain of
events outside of the Respondent’s control. To reach such a conclusion would require resort to
an unjustified presumption. Therefore, I conclude that Kaspers’ words reasonably would
communicate to employees the message that Respondent, of its own volition, would deny a pay 5
raise – indeed, that Respondent would deny a contemplated pay raise – because of employees’
protected activities.
In sum, I conclude that Kaspers’ words at the September and October 2005 bargaining
sessions, linking the existence of the unfair labor practice charges to the absence of a wage 10
increase, constitute a threat of adverse consequences for engaging in protected activity. See
Chinese Daily News, 346 NLRB No. 81 (April 17, 2006).
Accordingly, I further conclude that Respondent violated Section 8(a)(1) of the Act by
engaging in the conduct alleged in Complaint paragraph 12, and recommend that the Board so 15
find.
Complaint Paragraphs 13 and 14
Complaint paragraphs 13, 14 and 15 concern a speech which Plant Manager George Roth 20
made to employees at a meeting on May 4, 2006. Complaint paragraph 26 alleges that the
statements described in those three Complaint paragraphs violated Section 8(a)(1) of the Act.
Respondent denies all of these allegations.
More specifically, Complaint paragraph 13 alleges that on or about May 4, 2006, the 25
Respondent, by George Roth, at Respondent’s facility, interfered with employees’ Section 7
rights by telling them that filing charges with the National Labor Relations Board was futile.
Complaint paragraph 14 alleges that on this date, Respondent, by Roth, “interfered with
employees’ Section 7 rights by telling employees that the filing of charges under the National
Labor Relations Act and employees’ protected activities was costing the Respondent money that 30
would had [sic] otherwise benefited the employees.”
Complaint paragraph 15 alleges that on this date, Respondent, by Roth, “interfered with
employees’ Section 7 rights by inviting and requesting employees to quit their employment
because they had engaged in Union and protected activities.” Although this allegation also 35
concerns Roth’s May 4, 2006 speech, it will be discussed under a separate subheading below.
The record clearly establishes the content of Plant Manager Roth’s May 4, 2006 speech
to bargaining unit employees. The exhibits include the text of this speech, which consists of 5
typed pages with some modifications in handwriting. Based on the credited evidence, I find that 40
Roth delivered this speech substantially as it appears in written form, and that any deviations
from the text were inconsequential.
The first part of Roth’s speech concerned the collective bargaining between Respondent
and the Union. Roth told the employees that 20 negotiating sessions should have been sufficient 45
to reach a contract and he blamed some employees on the Union’s bargaining committee.
JD(ATL)–35–07
14
According to Roth, who did not identify the employees by name, they had allowed “personal
self–interest [to] predominate over what’s in the best interests of all employees and the
Company.”
Roth further criticized two of the Union’s negotiators for resigning from the bargaining 5
committee right “when it’s time to negotiate the terms that really matter––wages, profit–sharing,
and other cost issues. . .” Although Roth did not name the two negotiators who resigned, only
three employees served on the Union’s bargaining committee and, I infer, most of the workforce
knew that the resigning committee members were Regan Long and Rollie Powell.
10
The Complaint does not allege that Roth’s criticisms of the negotiations and the
negotiators violated the Act. Therefore, I do not consider whether Roth’s statements, described
above, interfered with, restrained or coerced employees in the exercise of their statutory rights.
However, Roth’s speech then shifted focus to the unfair labor practice charges. It stated, in
pertinent part:15
[W]hen the contract negotiations finally got to [the] point where it’s time to
negotiate the terms that really matter. . .two of the three employees that we gave 20 days
off to negotiate a contract suddenly decide to resign from the Union’s negotiating
committee apparently so that they can dedicate their time and efforts to filing and 20
pursuing allegations with the National Labor Relations Board. That’s nuts. Since
interest in the Steelworkers [Union] surfaced a little more than a year ago, they have
either filed or supported the filing of dozens of allegations with the National Labor
Relations Board. The NLRB has yet to find the Company guilty of any of the alleged
violations. Admittedly, several of the charges were settled last August – not because the 25
Company had done anything wrong, but instead because it would have cost more to
proceed with the defense than it cost to pay 2–time convicted felony child abuser a few
thousand bucks to end those proceedings.
The only person who wins when charges are filed with the NLRB is the 30
Company’s lawyer. Personally, I think William Shakespeare was right when he
suggested killing all the lawyers. Some of you have probably heard the joke, “What do
you call 500 lawyers at the bottom of the ocean? ... A good start.”
With all of the charges and allegations that they and others have filed with the 35
NLRB, the Company has had to have a lawyer present at all 20 of the bargaining sessions
to insure that we’re not inadvertently doing something that they might turn into yet
another NLRB charge.
Since the Steelworkers came in a year ago, the Company has paid the Company’s 40
lawyer over $200,000 to protect the Company’s interests against the charges that they and
others have made or threatened to make. $200,000 that otherwise could have gone into
improving life here in the plant. That’s nuts.
The only thing that filing charges with the NLRB does, other than make the 45
Company’s lawyer rich, is continue to foster an adversarial us–versus–them attitude.
Personally, I don’t really care whether we operate under a union contract or not. We’ve
JD(ATL)–35–07
15
operated under a union contract and made money sometimes and not made money other
times, and we’ve operated without a union and made money sometimes and not made
money other times.
What doesn’t work, however, and never will, particularly in competitive times 5
when we’re competing against doors made in China, is the adversarial us–versus–them
environment that they are attempting to foster with all of the charges they file with the
NLRB. That old saying, “a house divided cannot stand” certainly applies to an industrial
setting. I’m not saying that the union or the employees who supported it are solely to
blame for the adversarial us–versus–them environment. However, it all has to stop, 10
because it’s negative, counterproductive, and very detrimental to the long term viability
of this operation and this Company.
I have been told that early on in the negotiations, one man said that he didn’t care
whether the Company went out of business, and another has very recently said that if he 15
didn’t get his way, he’d put the Company out of business. Well, too many of us have
worked too long and too hard for anyone to seriously consider putting this Company out
of business or even talking about it. If that’s where they are today, then they should find
another job elsewhere and stop infecting the rest of us with all of their negativity.
20
I expect that as soon as I finish talking, they will say that I’m all wet and that
they know what’s best. My idea of what’s best is when we can leave the us–versus–them
attitude on the sideline and be productive enough that we can share monthly bonus
checks of over $300. We’re all in this to make a living and feed our families. We don’t
show up for work in the morning to put this Company out of business. And, anyone 25
who’s so unhappy here that you think you need to put this Company out of business
needs to move on, find another job, and leave the rest of us the hell alone. I will give you
a good letter of reference. It is not in the best interest of you or the company to stay in a
job you don’t like where you are not happy. Life is too short.
30
In addition to the text quoted above, Roth’s speech did make one additional, passing
reference to unfair labor practice charges. When Roth began speaking, he apologized for reading
the speech, explaining that “it seems like every time we turn around or say anything, somebody
files another charge about it with the NLRB.” However, the Complaint does not allege that
statement to be violative and I make no finding concerning it.35
Rather, I must determine whether any part of Roth’s speech told employees that filing
unfair labor practice charges was futile and, if so, whether such a statement violated Section
8(a)(1). Nowhere in the speech did Roth state explicitly that filing an unfair labor practice
charge was futile and, indeed, he did not use the word “futile” at all.40
Roth did tell the employees that since the arrival of the Union, “they have either filed or
supported the filing of dozens of allegations with the National Labor Relations Board. The
NLRB has yet to find the Company guilty of any of the alleged violations.” Roth did not state
specifically who “they” were. Based on the entire record, it appears that Roth was referring to 45
Regan Long and Rollie Powell, two employees serving on the Union’s negotiating team.
JD(ATL)–35–07
16
Roth’s statement – that “they” filed or supported the filing of “allegations” with the
Board – does not communicate a message that filing an unfair labor practice charge is futile.
Indeed, what Roth said next conveys the opposite message, that filing a charge could result in a
benefit to the charging party even if the charge was meritless. Thus, Roth informed the 5
employees that Respondent had settled “several of the charges” but “not because the Company
had done anything wrong.” Rather, Respondent determined it would cost more to defend against
the charges than to pay a settlement.
Applying an objective standard, I conclude that this message reasonably would not 10
discourage an employee from filing a charge. If Roth’s words had any effect on the willingness
of an employee to file a charge, they reasonably would make an employee more likely to do so.
A typical employee, without much knowledge of the Act, might hesitate before filing a charge,
suspecting that it would be a waste of his time, or, in other words, futile. However, Roth’s
words, indicating Respondent’s willingness to settle even a meritless charge because of its 15
“nuisance value,” reasonably would increase the employee’s expectation of deriving a benefit.
It is true that Roth said that the “only person who wins when charges are filed with the
NLRB is the Company’s lawyer.” Standing alone, those words do imply that the person filing
the charge does not “win,” or benefit from that action. Arguably, an employee could infer that, 20
since a person filing a charge could not “win,” filing a charge was “futile.”
Such reasoning requires drawing an inference from an implication and is thus quite
tenuous. Moreover, Section 8(c) protects an employer’s right to express an opinion, including
the opinion that only the lawyer benefits when a charge is filed. This protection doesn’t depend 25
on whether the particular opinion is correct. Rather, it extends to all expressions of opinion
which do not carry a threat of reprisal or force or a promise of benefit. No such threat or promise
taints Roth’s statement here.
Complaint paragraph 13 alleges that parts of Roth’s speech unlawfully communicated 30
that filing charges with the Board was futile. For the reasons discussed above, applying an
objective standard, I conclude that Roth’s words reasonably would not convey that message.
Therefore, I recommend that the Board dismiss the allegations associated with Complaint
paragraph 13.
35
Complaint paragraph 14 alleges, in effect, that Roth interfered with the exercise of
Section 7 rights by telling employees that filing charges and engaging in other protected activity
was costing Respondent money which otherwise would have been used to benefit the employees.
Roth’s speech, quoted above, includes the statement that Respondent had paid legal fees
exceeding $200,000 to defend against the unfair labor practice charges and also had paid an 40
undisclosed amount to settle an unfair labor practice charge.
An employer’s simple announcement of how much it had paid a lawyer would not, by
itself, constitute a threat or promise which interfered with the exercise of Section 7 rights.
However, Complaint paragraph 14 further alleges that Roth said that the unfair labor practice 45
charges were costing money which otherwise would have benefited the employees.
JD(ATL)–35–07
17
The record does not establish that Roth specifically said that the money Respondent paid
in legal feels otherwise would have benefited employees. Based on the credited evidence, I find
that Roth actually told the employees that Respondent had paid a lawyer “$200,000 that
otherwise could have gone into improving life here in the plant.” However, employees5
reasonably would understand Roth to mean that Respondent would have used the $200,000 to
improve their working conditions in some unspecified way.
In analyzing whether such comments amount to an unlawful threat, I apply the same
principles discussed above in connection with Complaint paragraph 12. However, the statements 10
which Roth made to employees on May 4, 2006 differ significantly from the remarks of
Respondent’s attorney at the September and October 2005 bargaining sessions.
Attorney Kaspers’ remarks at the bargaining table clearly conveyed that because of the
unfair labor practice charges the employees would not receive a raise. Additionally, he 15
communicated that negotiations would not progress unless the charges were withdrawn. From
Kaspers’ statements and the total context, employees reasonably would conclude that the
detriment he predicted would not happen automatically as a natural consequence of charge filing.
Instead, the potential harm would flow from Respondent’s decision not to allow negotiations to
progress and not to agree to a wage increase.20
When Roth told employees that Respondent had paid a lawyer $200,000 to defend
against the charges, he did not say that management had made a conscious decision to take
money earmarked to improve working conditions and spend it instead on legal representation. It
may be argued that paying legal fees is not a “demonstrably probable consequence” of being the 25
recipient of an unfair labor practice charge and, likewise, such payments did not turn on events
beyond the Respondent’s control.
Arguably, the decision to retain counsel falls within a charged party’s control. Certainly,
one can say that a person accused of unlawful conduct can decide not to consult an attorney. 30
One also can say that a person with fever and abdominal pain can decide not to call a doctor. In
practice, the complexity of federal employment law has made the retention of counsel a normal,
legitimate and expected business practice.
Essentially, Roth lamented that the unfair labor practice charges had resulted in 35
Respondent paying a lawyer money which could better have been spent for other things.
Expressing such an opinion did not communicate to employees either a threat of reprisal or a
promise of benefits.
Freedom of speech is the rule rather than the exception. The government bears the 40
burden of proving that a particular statement carries a threat of reprisal or force, or a promise of
benefit, sufficient to remove it from the protection of Section 8(c). Here, the credited evidence
does not establish the existence of such a threat or promise.
In Children’s Center for Behavioral Development, 347 NLRB No. 3 (May 15, 2006), the 45
Board considered a respondent’s memo to its employees with content not unlike Roth’s speech.
JD(ATL)–35–07
18
The memo accused the employees’ union of “doing everything in its power” to harm the
respondent, including interfering with the respondent’s relationship with a funding source,
United Way. The Board, reversing the administrative law judge, found that this memo was “a
lawful expression of the Respondent’s opinion about the Union and does not violate the Act.”
347 NLRB No. 3, slip op. at 1. Similarly, I conclude that Roth’s speech constituted a lawful 5
expression of opinion.
As the Board held in Children’s Center for Behavioral Development, “an employer may
criticize, disparage or denigrate a union without running afoul of Section 8(a)(1) provided that its
expression of opinion does not threaten employees or otherwise interfere with the Section 7 10
rights of employees.” Roth’s speech falls within the bounds of lawful criticism. (For accuracy,
it should be noted that Roth did not direct much criticism at the Union. Instead, his speech
excoriated two of the three employees on the Union’s bargaining committee.)
Accordingly, I conclude that Respondent did not violate the Act in the manner alleged in 15
Complaint paragraphs 13 and 14. Therefore, I recommend that the Board dismiss these
allegations. My conclusion that Respondent did not violate the Act makes it unnecessary to
consider Respondent’s affirmative defense that Section 10(b) of the Act bars certain of the
allegations.
20
Complaint Paragraph 15
Complaint paragraph 15 raises one other allegation related to Roth’s May 4, 2006 speech.
This paragraph alleges that Respondent interfered with employees’ Section 7 rights by “inviting
and requesting employees to quit their employment because they had engaged in Union and 25
protected activities.”
The 6–month time limitation in Section 10(b) of the Act clearly does not bar this
allegation. The charge in Case 10–CA–36284, filed May 26, 2006 specifically described the
conduct which forms the basis for Complaint paragraph 15.30
During his May 4, 2006 speech, Roth quoted one employee as saying that he didn’t care
whether Respondent went out of business. Roth added that another employee had “very recently
said that if he didn’t get his way, he’d put the Company out of business.” Roth then said:
35
[A]nyone who’s so unhappy here that you think you need to put this Company out of
business needs to move on, find another job, and leave the rest of us the hell alone. I will
give you a good letter of reference. It is not in the best interest of you or the company to
stay in a job you don’t like where you are not happy. Life is too short.
40
The General Counsel argues that this statement violated Section 8(a)(1) of the Act. For
the following reasons, I agree.
In Jupiter Medical Center Pavilion, 346 NLRB No. 61 (March 13, 2006), the respondent
conducted a number of employee meetings in response to a union organizing campaign. At one 45
such meeting, an employee criticized the way management treated its workers. A supervisor
replied “Maybe this isn’t the place for you . . . there are a lot of jobs out there.” Reversing the
JD(ATL)–35–07
19
administrative law judge, the Board held that the statement, suggesting that the employee seek
work elsewhere, violated Section 8(a)(1) of the Act:
The Board has long found that comparable statements made either to union advocates or
in the context of discussions about the union violate Section 8(a)(1) because they imply that 5
support for the union is incompatible with continued employment. Rolligon Corp., 254 NLRB
22 (1981). Suggestions that employees who are dissatisfied with working conditions should
leave rather than engage in union activity in the hope of rectifying matters coercively imply that
employees who engage in such activity risk being discharged.
10
As discussed above, Section 8(c) recognizes and protects an employer’s right to express
an opinion, so long as the expression does not convey a threat or a promise. Thus, an employer
does not violate the Act merely by voicing the sentiment that an unhappy employee should look
for work elsewhere. Considered in a “vacuum” – free of context – such a statement does not
implicate an employee’s protected activities.15
However, context can shape the same words into a less benign message. As the Board
observed in Jupiter Medical Center Pavillion, when an employer makes such a statement “either
to union advocates or in the context of discussions about the union,” the words communicate that
“support for the union is incompatible with continued employment.”20
Stated another way, when the words are considered in this particular context, the message
becomes that the employee must choose between supporting a union and continuing to hold his
job. Presenting an employee with such a choice obviously interferes with the exercise of Section
7 rights. It amounts to conditioning further employment on forsaking protected activity.25
So, I must determine what effect the context of Roth’s May 6, 2006 speech has on the
message conveyed. Applying an objective standard and considering the entire context, I must
decide whether an employee reasonably would understand Roth to be saying that engaging in
protected activity was “incompatible with continued employment.”30
Early in the speech, which Roth gave to bargaining unit employees, he discussed the
status of Respondent’s negotiations with the Union. He vigorously criticized two employee
members of the Union’s negotiating committee and blamed them for the absence of a collective–
bargaining agreement. Clearly, Roth made the statement “in the context of discussions about the 35
union,” as the Board used that term in Jupiter Medical Center Pavillion.
Moreover, Roth strongly criticized those who had filed charges with the Board, and
claimed that, because of the charges, Respondent had spent more than $200,000 in legal fees.
Roth also said that Respondent had spent money to settle a case, “not because the Company had 40
done anything wrong, but instead because it would have cost more to proceed with the
defense...” These words clearly imply that the filing of unfair labor practice charges had resulted
in Respondent paying money for something it did not do.
After criticizing employees for filing charges and after stating how much defending 45
against those charges had cost Respondent, Roth mentioned an employee who reportedly had
JD(ATL)–35–07
20
said that he didn’t care whether Respondent went out of business. Roth then referred to a second
employee who “recently said that if he didn’t get his way, he’d put the Company out of
business.” In this context, employees reasonably would believe that Roth was making a
connection between the filing of unfair labor practice charges and an intent to put Respondent
out of business.5
Roth’s further statement, that “they should find another job elsewhere and stop infecting
the rest of us with all of their negativity,” clearly implies that engaging in protected activity –
filing charges with the Board – was incompatible with continued employment. In effect, Roth’s
words require employees to chose between engaging in protected activity and holding a job. In 10
this context, the words interfere with, restrain and coerce employees in the exercise of their
Section 7 rights.
Roth’s speech referred not only to employees filing charges but also to the conduct of
employee members of the Union’s bargaining committee. Roth questioned their motives and 15
criticized their performance. However, Section 7 of the Act protects an employee’s right to
serve on a union’s negotiating committee, and this protection does not depend on how well that
person represented the bargaining unit’s interest. Thus, Roth’s words about finding work
elsewhere not only interfered with an employee’s right to file charges with the Board, but also
interfered with an employee’s right to engage in union activities, such as serving on the Union’s 20
bargaining committee.
In sum, I conclude that, by the conduct described in Complaint paragraph 15, Respondent
violated Section 8(a)(1) of the Act. I recommend that the Board so find.
25
Complaint Paragraph 16(a)
Respondent has admitted that on June 8, 2005, it suspended employee Anthony Lyles for
one day, as alleged in Complaint paragraph 16(a). However, Respondent denies that it did so
because employees engaged in concerted activity for mutual aid and protection, as alleged in 30
Complaint paragraph 17.
Complaint paragraph 26 alleges that the June 8, 2005 suspension of Lyles violated
Section 8(a)(1) of the Act, which Respondent denies. (It may be noted that the Complaint does
not allege the suspension to violate Section 8(a)(3). Complaint paragraph 27, which alleges that 35
certain other conduct violated Section 8(a)(3), does not refer to Complaint paragraph 16(a).)
The events relevant to Complaint paragraph 16(a) involve three of Respondent’s welders:
Kenneth Small, Anthony Lyles and Robert Bowser. Work flowed in assembly–line fashion,
from welder to welder. The slowest employee’s pace would determine how quickly the work 40
moved from employee to employee and thus affect the productivity of the group.
On June 8, 2005, Small made an “informal” (oral) complaint to assistant plant manager
James Smith. Based on Smith’s testimony, which I credit, I find that Small told Smith that
employees Anthony Lyles and Robert Bowser were “talking about union business on company 45
time” and that this discussion was slowing the work.
JD(ATL)–35–07
21
Smith later had Lyles and Bowser come to his office, where he spoke to them outside
Small’s presence. Smith told the two welders that someone had complained about them
“slowing down from their work” because they were “talking about union business.” Smith said
that talking about union business was not permitted on company time, although doing so on 5
break time and dinner time was all right.
The Complaint doesn’t allege that this statement violated that Act, although the General
Counsel does argue that it constitutes evidence of animus. Its evidentiary import will be
addressed below, but at this point, it may be noted that when Smith made the remark, the Union 10
had been the certified bargaining representative for about two and one–half months.
Lyles asked Smith if Kenneth Small was the employee who had complained. Smith
declined to say. Lyles and Bowser returned to work.
15
Smith’s testimony indicates that he did not consider his discussion with Lyles and
Bowser to be a disciplinary action. Bowser, however, testified that Smith told them he was
giving them an oral warning. Based upon my observations of the witnesses, I credit Smith’s
testimony rather than Bowser’s, and find that Smith did not give either Lyles or Bowser a
“warning,” as that term is used to signify disciplinary action.20
Later that same day, Small made a “formal” (written) complaint to Smith. It stated (with
grammar and spelling uncorrected) as follows:
I, Kenneth Small Life has been threaten and property meaning truck. Now I am suppose 25
to be sucking James Smith Dick and also Robert Parker supposing to be sucking James
Dick – was close enough to hear them. Now the whole plants shing away from me.
Know one wants to work with me.
At the time Smith received this complaint, he was mindful of news reports about a violent 30
incident at an unrelated employer’s facility. Smith credibly testified that he took Small’s
complaint seriously and conducted an investigation, which included interviewing Lyles and
Bowser. They denied threatening Small in any way.
Based on that investigation, management issued an “Employee Disciplinary Report”35
dated 6/9/05. This report informed Lyles that he was being “suspended for 1–day for making
threatening remarks to Kenneth Small’s person and vehicle.” Lyles refused to sign it.
Respondent did not impose any discipline on Bowser because, management concluded, only
Lyles threatened Small and Bowser did not.
40
In evaluating the evidence, I will follow the framework set out by the Board in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, the General Counsel must establish four elements by a
preponderance of the evidence. First, the government must show the existence of activity
protected by the Act. Second, the government must prove that Respondent was aware that the 45
employees had engaged in such activity. Third, the General Counsel must show that the alleged
discriminatees suffered an adverse employment action. Fourth, the government must establish a
JD(ATL)–35–07
22
link, or nexus, between the employees’ protected activity and the adverse employment action.
More specifically, the General Counsel must show that the protected activities were a substantial
or motivating factor in the decision to take the adverse employment action. See, e.g., North Hills
Office Services, Inc, 346 NLRB No. 96 (April 28, 2006).
5
In effect, proving these four elements creates a presumption that the adverse employment
action violated the Act. To rebut such a presumption, the respondent must persuade by a
preponderance of the evidence that the same action would have taken place even in the absence
of the protected conduct. Wright Line, 251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296
NLRB 259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th Cir. 1991). See also Manno 10
Electric, Inc., 321 NLRB 278, 280 at fn. 12 (1996).
The General Counsel has established that Lyles engaged in protected activity, namely,
discussing “union business” with fellow employee Bowser. Therefore, I conclude that the
government has proven the first Wright Line element.15
Un-contradicted evidence also establishes the second Wright Line element. Assistant
Plant Manager Smith testified that he told Lyles and Bowser that he had received a complaint
about their discussing “union business” while on working time. Thus, management was aware of
the protected activity.20
The General Counsel also has proven the third Wright Line element. The one–day
suspension certainly is an adverse employment action. However, I conclude that the government
has not established the fourth Wright Line requirement, a link between the protected activity and
the adverse employment action. 25
To demonstrate such a connection, the General Counsel notes that Lyles’ suspension
came soon after Smith had learned about their discussion of “union business” and that this
proximity in time suggests a causal connection. The General Counsel also argues that when
Smith told Lyles and Bowser that they could not discuss “union business” while on work time, 30
this instruction manifested Respondent’s hostility towards the Union.
The General Counsel correctly notes that a supervisor’s remark can provide evidence of
antiunion animus even if the complaint does not allege that the statement violated Section
8(a)(1). Accordingly, if Smith’s statement to Lyles and Bowser – that they could not discuss 35
“union business” while on working time – afforded evidence of unlawful motivation, I certainly
would consider it. However, a careful assessment of Smith’s comment leads me to conclude that
it does not provide evidence of unlawful motivation.
The Complaint does not require me to decide whether Smith’s remark violated Section 40
8(a)(1) and I reach no conclusions on that point. However, solely for the sake of analysis, I will
assume here that the statement would indeed constitute an 8(a)(1) violation. That finding of a
violation would not relieve me of the duty of evaluating how much weight to give this conduct in
considering Respondent’s motivation for suspending Lyles.
JD(ATL)–35–07
23
Typically, if an employer commits an 8(a)(1) violation and later disciplines an employee,
the 8(a)(1) conduct provides some evidence relevant to the employer’s motivation for imposing
discipline. However, the weight properly attached to this evidence can vary widely, depending
on specific circumstances. For example, an 8(a)(1) violation which preceded the discipline by 5
only a small time period probably would weigh heavier on the scales than a similar violation
which was remote in time. On the other hand, an 8(a)(1) violation committed at another location
by a supervisor totally uninvolved in the later disciplinary decision would carry much less
weight.
10
Thus, a judge must avoid a “cookie cutter” approach which automatically attaches the
same probative weight to every 8(a)(1) violation. That would turn the issue of motivation into a
conclusion of law when, in reality, it presents questions of fact which must be answered through
a careful examination of the evidence. To assess how much any prior act reveals motivation for
a subsequent act, the trier of fact must draw upon logic, common sense, and at least a smattering 15
of familiarity with human nature.
As noted above, I assume for the sake of analysis that Assistant Plant Manager Smith
violated Section 8(a)(1) when he told Lyles and Bowser that they could not discuss “union
business” during working time. That would be true regardless of Smith’s motivation for making 20
the statement, because in general, proof of an 8(a)(1) violation does not require evidence of
motivation. The lawfulness of a statement depends not on why a supervisor said it but what
effect it reasonably would have on employees’ exercise of protected rights.
Logic and common sense urge that, should a supervisor prohibit employee discussion of a 25
union during an organizing campaign, that action probably reflects some hostility towards the
union. In the present case, Smith did not make such a statement during an organizing campaign,
but two and a half months after the Union had won that campaign, in fact, after the Respondent
had recognized the Union and begun bargaining with it. Even in these circumstances, Smith’s
remark still might suggest the presence of animus, but to determine its exact significance, the 30
remark must be considered in its total context.
Undisputed evidence establishes that when Smith told Lyles and Bowser that they could
not discuss “union business” during working time, he also made clear that the prohibition was to
prevent a slowdown in production. That explanation, of course would not prevent the rule itself 35
from failing the lawfulness test because the reasonable effect, not intent, determines whether a
work rule violates Section 8(a)(1), and this rule singled out protected activity for discriminatory
treatment.
However, Smith’s motivation in announcing the rule is relevant to another issue, the 40
extent to which the rule evinces an intent to discriminate unlawfully against union adherents.
Evidence which shows not only a hostile attitude towards the Union but also a reason or
inclination to act on it provides persuasive evidence of a link between the protected activities and
the adverse employment action. An absence of such evidence makes a nexus less likely.
JD(ATL)–35–07
24
In considering this issue, I may take into account Bowser’s testimony that when Smith
told them that they could not discuss “union business” on working time, he explained, in
Bowser’s words, that “our discussions were disrupting our work production.” Other testimony
corroborates Bowser on this point and I find that Smith did give this explanation for the rule. 5
Based on un-contradicted testimony, I also find that Smith told Bowser and Lyles that they could
discuss “union business” during break time and dinner time. Although this statement would not
render the rule itself any more lawful, it does make me a bit more reluctant to infer animus
simply from the rule’s existence.
10
Moreover, other evidence supports the conclusion that concerns about production, not
hostility towards the Union, motivated Smith. The record establishes that Respondent was
indeed having production problems, and that these problems became so serious that Respondent
ultimately replaced the plant manager with another. Thus, the rule owed its existence, at least in
part, to a legitimate business–related reason.15
Another factor also must be considered. Smith knew that both Lyles and Bowser had
been discussing “union business” during working time. However, Respondent only disciplined
Lyles. If Respondent really was, in fact, hostile to union activity, it likely would have
disciplined both of the employees who had been talking about union business while production 20
slowed.
In these circumstances, I conclude that Smith’s rule prohibiting the discussion of union
business during working time does not establish that antiunion animus was a substantial
motivating factor in the decision to suspend Lyles. Therefore, to satisfy the fourth Wright Line25
requirement, the government must present additional persuasive evidence of animus.
The General Counsel contends that animus may be inferred from Respondent’s failure to
call its vice president, Steve Frates, to testify. Citing International Automated Machines, 285
NLRB 1122, 1123 (1987), the General Counsel argues that “Where a witness to a disputed event 30
is favorably disposed toward one party or another and that party does not call the witness, the
Board infers that had the witness testified his accounts would have been adverse to the party with
whom he is associated.”
Certainly, in some instances a judge appropriately may draw an inference from a 35
respondent’s unexplained failure to call one of its managers when that person has relevant
knowledge concerning a disputed fact. However, the judge must be careful not to apply this
principle in a way which improperly shifts the burden of proof. Additionally, prudence favors
caution in using an absence of evidence to prove an affirmative fact.
40
If the General Counsel had presented evidence which Respondent manifestly had needed
to rebut, and if Frates clearly appeared to be the one who could do the rebutting, Respondent’s
failure to call him would raise an eyebrow, or a suspicion, or perhaps even justify drawing an
adverse inference. Such circumstances do not appear in this case.
JD(ATL)–35–07
25
Respondent did not have to decide which witnesses to call until after the government
rested its case. Based on the evidence presented by the General Counsel, I cannot conclude that
Respondent would consider it essential to call Frates, a member of senior management, rather
than rely on the testimony of the managers at the plant level. Respondent’s counsel had cross–5
examined the government’s witnesses and could make a judgment concerning their credibility.
That assessment, in turn, could lead to the conclusion that rebuttal testimony by Frates was not
necessary.
My observations of the witnesses lead me to conclude that the testimony of Bowser and 10
Lyles should be viewed with some skepticism. In particular, I have concerns about the reliability
of Lyles’ testimony. Lyles, who suspected that Small had complained about him to Manager
Smith, initially denied doing anything to retaliate. However, on cross–examination, he admitted
a retaliatory motive for redirecting a fan away from Small and, when Small protested, saying
“we’re doing it now.”15
Although he did not admit doing anything to Small other than turning the fan away from
him, Lyles’ acknowledgement that he had a retaliatory intent indicates a significant level of
interpersonal conflict in the workplace. The existence of this tension increases the plausibility
that management acted quickly to prevent its escalation. The presence of legitimate reasons for 20
management’s action does not rule out the possibility that an unlawful motive also affected the
decision to discipline, but such a motive should not simply be assumed without credible
evidence.
Absent the adverse inference which the General Counsel seeks because Frates did not 25
testify – an inference I conclude is unwarranted and which I will not draw – the credible
evidence is insufficient to establish the requisite nexus between the protected activities of Lyles
and Bowser and the suspension which Lyles received. Accordingly, I further conclude that the
government has not satisfied all four Wright Line requirements. In these circumstances, I
recommend that the Board dismiss the allegations related to Complaint paragraph 16(a). In case 30
the Board should disagree with my conclusion that the General Counsel did not make what
sometimes has been called a “prima facie case,” I will continue the Wright Line analysis. Should
the burden shift to Respondent to rebut the government’s case, I would conclude that
Respondent’s evidence does not carry the rebuttal burden.
35
In general, rebutting the General Counsel’s case requires a respondent to demonstrate that
it would have taken the same action even if the employee receiving the discipline had not
engaged in protected activities. A respondent typically offers proof, in the form of testimony and
personnel records, showing that it had accorded the same treatment to similarly situated
employees who were not union adherents.40
When a respondent has relatively few employees, it may not be possible to find another
employee who engaged in the same type of conduct. In that circumstance, how the respondent
dealt with a somewhat similar but not identical situation still may provide a basis for comparison.
JD(ATL)–35–07
26
Respondent pointed to an instance in which it discharged an employee who had
threatened another employee with a knife. Obviously, a threat with a weapon may warrant a
different response than a threat solely with words. Although Respondent’s decision to discharge
the knife–wielding employee is not patently inconsistent with its decision only to suspend Lyles 5
for a day, the two situations are not similar enough to allow a meaningful comparison.
In September 2004, as a practical joke, employee Don Larson had placed “chocks”
(pieces of wood) behind the tires of another employee’s vehicle so that when the driver backed
up, he would be surprised by a bump. This attempted joke caused little hazard, but nonetheless, 10
Respondent suspended Larson for a day. Here, again, the factual differences prevent the drawing
of any firm conclusions.
The situation factually closest to the suspension of Lyles for threatening Small involved,
ironically, the contemplated suspension of Small for threatening another employee, Gary Bailey. 15
Respondent issued Lyles the suspension notice in early June. About a month later, during a
negotiating session, Union committeeman Rollie Powell informed management that Kenneth
Small had threatened to hit another employee with some frame material. The record does not
offer a definitive account of what happened, but it suggests that Bailey had come up to where
Small was working and made a remark which reasonably would be considered insulting. 20
Reportedly, Small reacted by saying that if Bailey didn’t get “out of my face with that stuff,”
Small would pick up one of the frames and hit Bailey “up the side of the head.”
Manager Torres met with Small, who admitted threatening Bailey. Union bargaining
committee member Rollie Powell also attended the meeting in a capacity similar to shop 25
steward. According to Torres, initially he intended to suspend Small but, after discussing the
matter with Powell, decided instead to issue a written warning.
It is easy to imagine – particularly for someone familiar with labor relations – the shop
steward pleading and imploring on the employee’s behalf and the resolute manager gradually 30
yielding to the steward’s continued entreaties. However, a careful examination of Torres’
testimony reveals a rather different picture.
From Torres’ testimony, which I credit, I infer that Torres, not Powell, advanced the
proposal to reduce Small’s discipline from a suspension to a written warning. Torres testified 35
that he remembered talking to Rollie [Powell] and telling Rollie that “I was prepared to give
Kenneth [Small] a day off, because that is what we had done to Anthony Lyles, for making the
threat. But since the – some time had passed, I was willing to either give him the one–day
suspension or give him a written write up. And Rollie asked that I give him a written write up.”
40
The options which Torres offered Powell – suspending Small or simply warning him –
provided as much real choice as asking someone whether he would rather have a bowl of honey
or be stung by the bees. No union official is going to choose the harsher discipline for an
employee the union represents. Respondent, not the Union, bears responsibility for deciding to
impose a milder discipline on Small than Lyles received.45
JD(ATL)–35–07
27
After Respondent issued the written warning to Small, the Union then requested that
management reduce the discipline imposed on Lyles from a suspension to a warning. It also
asked Respondent to pay Lyles for the day he didn’t work. Respondent would not agree to pay
Lyles for this time, but it did agree to reduce Lyles’ discipline from a suspension to a written
warning.5
Thus, although Respondent disciplined both Lyles and Small for similar conduct –
threatening another employee – Lyles received significantly harsher discipline than Small. Lyles
lost a day’s pay. Small did not. The evidence therefore does not show that Respondent treated
the union adherent the same way it treated another similarly situated employee. Accordingly, if 10
the General Counsel had established the initial four elements, thus placing a rebuttal burden on
Respondent, I would conclude that Respondent had not carried that burden. However, for the
reasons stated above, I have concluded that the credited evidence does not prove the fourth
Wright Line requirement. Therefore, I recommend that the Board dismiss the allegations
associated with Complaint paragraph 16(a).15
Complaint Paragraph 16(b)
Complaint paragraph 16(b) alleges that on October 13, 2005, Respondent imposed a one–
day suspension on employee Rollie Powell. Respondent admits doing so. However, Respondent 20
denies that it suspended Powell because of employees’ union activities and concerted protected
activities and because employees filed charges and gave testimony pursuant to the National
Labor Relations Act, as alleged in Complaint paragraph 18. It also denies that its conduct
violated Section 8(a)(1), (3) and (4) of the Act, as alleged in Complaint paragraphs 27 and 28.
25
Based on my observations of the witnesses, I conclude that Rollie Powell gave the most
reliable testimony concerning the events relevant to these allegations. I resolve any conflicts in
the testimony by crediting Powell.
As noted above, Powell was a member of the Union’s negotiating committee. The Union 30
and Respondent had scheduled a bargaining session for October 12, 2005. However, a Board
agent investigating an unfair labor practice charge against Respondent arranged to interview
witnesses on this same date. The agent scheduled interviews with Respondent’s witnesses in the
morning on October 12, with other interviews set later in the day.
35
Bargaining sessions typically began, or were scheduled to begin, at 8:00 a.m., but the
Board agent’s visit on the morning of October 12 necessitated a change in plans. On October 10,
2005, Plant Manager Torres told Powell that they were moving the starting time of the October
12 meeting to 1:00 p.m. because of the Board agent’s visit. Powell suggested that they postpone
the bargaining session rather than begin in the afternoon and Torres replied “I’ll get back to 40
you.”
The next day, October 11, Torres informed Powell that the bargaining session would
remain scheduled to begin at 1:00 p.m. the next day. Torres said, “We talked about it. We want
you to come into work at 6:00 in the morning,” which was Powell’s usual starting time, and 45
work until 11:00, time when Powell usually began his lunch break. Torres told Powell he could
JD(ATL)–35–07
28
go home at that time and then go to the Hampton Inn, where the bargaining session would be
held.
On October 12, Powell left at 11, as Torres had instructed, went home, changed clothes,
and arrived at the Hampton Inn at 12:50, that is, ten minutes before the bargaining session was 5
scheduled to begin. The remaining members of the Union’s bargaining committee arrived and
then went into the negotiating room at 1:00 p.m., discovering that no one on the Respondent’s
bargaining team was there.
When Respondent’s negotiators still had not arrived by 1:15 p.m., Union Representative 10
Anderson tried unsuccessfully to reach the Respondent’s chief negotiator, Attorney Kaspers.
Anderson then phoned Plant Manager Torres, but again got no answer.
The Union negotiators continued to wait. Powell had mentioned to Anderson that he
needed to be at the Union hall by 3:00 p.m. to meet with the Board investigator, and that he 15
intended to explain his situation to the Respondent’s representatives when they arrived and then
leave. However, when Respondent’s negotiators still had not arrived by 1:50 p.m., he said “I
have to go. I don’t even know if these other people are going to show up. I have to go.” He
then left.
20
Respondent’s negotiators arrived somewhat later. Based on Regan Long’s testimony,
which I credit, I find that the members of Respondent’s bargaining committee arrived some time
around 2:30. Long further testified that Attorney Kaspers said “I guess a thanks should be in
order to you guys for tying us up all morning with the NLRB Charges.” Long quoted Kaspers as
adding “the cost of all this litigation...whatever raises you was going to get, you’re not going to 25
get.”
Kaspers, who represented Respondent at the hearing, was present when Long gave the
testimony quoted above. Later, Kaspers took the witness stand and thus had an opportunity to
deny the words which Long attributed to him. Kaspers did not. Accordingly, I find that Kaspers 30
did make the statement quoted above.
For the reasons discussed above in connection with Complaint paragraph 12, I have
concluded that Kaspers’ statement violated Section 8(a)(1) of the Act. Additionally, Kaspers’
words on this occasion are consistent with other evidence indicating that the unfair labor practice 35
charges vexed Respondent considerably.
When Kaspers asked about Powell’s whereabouts, Long replied that he had an
appointment. The record does not indicate that any member of the Union’s negotiating
committee revealed that Powell’s appointment was with a Board investigator.40
The negotiators met again the next day, October 13. Kaspers asked Powell where he had
been the previous day. Powell replied that he was “taking some people out for an NLRB
investigation.” According to Powell, Kaspers said, “The Company doesn’t pay you to
investigate. You are suspended for a day. That will be tomorrow. Enjoy your day off. You are 45
going to lose a day from your attendance.” Kaspers added, “You lied. You weren’t here.”
JD(ATL)–35–07
29
At this point, Long interjected that Powell had been at the bargaining location. Powell
confirmed that he had been present. “Yes, I was here,” he told Kaspers. “You weren’t here.”
Union Representative Anderson then told Kaspers “We tried to get hold of you twice.”5
Powell told Kaspers that he had not lied and hadn’t done anything he felt was wrong.
Kaspers replied, “No, you lied. That’s it. And you are going to get your day off.”
In general, other witnesses corroborate Powell’s testimony. Although there are some 10
differences between Powell’s account and those of other witnesses, that is not surprising
considering the amount of time which elapsed between the event and the hearing. Minor
differences commonly appear in the testimony of various witnesses to the same event, except, of
course, in the rare instances of collusion.
15
Accordingly, it doesn’t damage the credibility of either Powell or Long that, for example,
Powell quoted Kaspers as saying that the “Company doesn’t pay you to investigate” but Long
quoted him as saying ““we let you off work to come to negotiations, not to go to the NLRB
agent.” Well more than a year had elapsed between the event and the testimony about it. It is
not surprising that, although both witnesses recalled the gist of Kaspers’ remark, they differed as 20
to his exact words.
It also is not surprising that Powell provided more detail. Kaspers’ announcement that
Powell would be suspended, and his refusal to back down even after hearing the circumstances,
harmed Powell directly in a way it did not harm the other witnesses. Typically, the most vivid 25
memories concern events which evoke strong emotion. Powell, more than anyone else, had
reason to react emotionally to the announcement that he would be suspended. But even more
significantly, Kaspers insisted that Powell had lied. Almost always, calling someone a liar will
prompt an emotional response in that person.
30
Moreover, Kaspers was present during the hearing when Powell gave the testimony
quoted above. Later, Kaspers took the stand as a witness for Respondent. Most certainly, it
would have been in Kaspers’ interest, and in his client’s interest, to deny making the statements
which Powell had attributed him. However, Kaspers did not.
35
Although Kaspers, as a witness, did not deny making the statements quoted above,
Kaspers, as the Respondent’s attorney, did assail Powell’s credibility during oral argument.
Kaspers pointed to a seeming inconsistency between Powell’s testimony on direct and cross–
examination.
40
Kaspers noted that on direct examination, Powell had testified that, at the beginning of
the October 13 bargaining session, Kaspers asked Powell where he had been the previous day
and Powell replied that he had been taking some people out for an NLRB investigation.
However, at one point during cross–examination, Powell stated that Kaspers had announced the
JD(ATL)–35–07
30
suspension without asking Powell where he had been. Here is the specific testimony to which
Kaspers referred:
Q. Mr. Powell, when the Company went to bed on the evening of October 12th, all it
had was knowing that you left at 11:00 in the morning to attend bargaining, and 5
no further communication that your absence was for any other reason than
attending bargaining.
MR. DOYLE: I object, Your Honor, to the ––– to counsel calling for Mr. Powell to
advise what information the Company had.10
JUDGE LOCKE: Rephrase the question, please.
* * *
BY MR. KASPERS:
Q. As far as you know, the only information that the Company had when it went to
bed on the evening of October 12 , was that you had taken off work at 11:00 to 15
attend the bargaining, and that you ––– and no other communication was made
as to any reason other than attending bargaining, that you missed the second half
of the day.
A. If you had asked me, I would have told you when I came in the next day. You
didn’t ask me. You just arbitrarily said, “You’re a liar. You’re suspended.”20
Clearly, Respondent has identified an inconsistency between Powell’s testimony on
direct and cross–examination. Potentially, the testimony on cross–examination, quoted above,
could cause significant damage to Powell’s credibility, because it appears to amount to an
admission which was not in Powell’s interest to make.25
The Complaint alleges that Respondent’s suspension of Powell violated both Section
8(a)(3) and 8(a)(4) of the Act, the latter making it unlawful to discriminate against an employee
because he had filed charges or given testimony under the Act. If Respondent did not know
about Powell’s activities with the Board agent at the time management decided to suspend him, 30
that lack of knowledge would undercut the 8(a)(4) allegation. Powell’s testimony on cross–
examination, that Kaspers hadn’t asked him where he had been, supports a finding that
management did not know about Powell’s participation in the NLRB investigation.
However, three other witnesses – Morris Anderson, Regan Long and Anthony Johnson –35
gave testimony supporting the conclusion that Powell had disclosed his October 12 protected
activities before Respondent suspended him. In light of this testimony, I believe Powell’s
inconsistent answer, quoted above, resulted from confusion.
Mr. Kaspers’ initial question did not concern what Powell told Respondent on October 40
13, but rather what he told Respondent on October 12. After an objection, I asked Respondent’s
counsel to rephrase the question. In doing so, Respondent’s counsel again focused on the
knowledge Respondent possessed on October 12. It is quite possible that by this point, the
witness had become confused. Respondent also pointed to the following testimony which Union
Representative Anderson gave on cross–examination:45
Q. Do you remember the first substantive thing I said on October 13 when that day
started, I asked Rollie Powell a question, I said, Rollie, did you obtain
JD(ATL)–35–07
31
authorization from the company to leave work at 11:00 o’clock yesterday so you
could attend bargaining? And he responded, yes.
[A] Yes, he did.
Q. And I responded by saying, then I’ve got good news and bad news. The good
news is you are not fired the way Ray Brooks was fired when he falsified the 5
reason that he was absent from work. The bad news is for not giving the
company a straight reason why you were absent after 11:00 o’clock yesterday,
you brought yourself a one–day suspension which will be served tomorrow
because we are not negotiating tomorrow and if we suspend you today that would
interfere with the bargaining.10
A. I remember that verbatim. You just let exactly the way you said it.
At first glance, this testimony may seem to be at odds with Anderson’s testimony on
direct examination. Specifically, Anderson had testified that Attorney Kaspers and Manager
Torres had asked Powell about his whereabouts and what he was doing on October 12, “and after 15
he answered them the company took a short break. They took a recess and I believe after the
recess they came back to the room where we were negotiating the contract and I believe at that
time [was] when the company counsel informed Mr. Powell that he was going to be suspended
one day for giving the company –– I believe he said false information.”
20
During cross–examination, Respondent did not ask Anderson specifically whether
Kaspers and Torres had inquired about Powell’s whereabouts and activities the previous
afternoon. Respondent also didn’t ask Anderson if Powell had disclosed his involvement in the
Board’s investigation. Accordingly, I do not conclude that Anderson’s testimony on cross–
examination necessarily is inconsistent with his testimony on direct examination.25
As discussed above, the testimony of another witness, Regan Long, leaves no doubt that
Respondent knew about Powell’s participation in the Board investigation before it informed him
he had been suspended. The testimony of the third employee on the Union’s bargaining
committee is equally convincing. During the Respondent’s cross–examination of Anthony 30
Johnson, Mr. Kaspers sought to elicit testimony similar to Anderson’s testimony on cross–
examination, excerpted above. Johnson balked:
Q. –– the first thing I said when I sat down at that table was asking Rollie Powell
did you get company authorization to be absent to leave work at eleven o’clock 35
yesterday to attend the bargaining, and he said yes.
A. Huh uh. No. Seemed like what you did first thing was ask him where he was.
You didn’t –– you asked him where he was because –– and then he told you
where he went.
40
Plant Manager Torres did not testify that Powell disclosed his protected activity before
Kaspers announced the suspension on October 13. However, it doesn’t squarely exclude that
possibility. Significantly, one portion of Torres’ testimony casts doubt on the sequence of events
propounded by Respondent’s counsel. In that scenario, Mr. Kaspers simply asked Powell if he
had obtained authorization to leave work at 11 o’clock to attend bargaining and then, when 45
Powell answered affirmatively, then and there told Powell that he was being suspended for a day.
JD(ATL)–35–07
32
Such a fast–paced chain of events would indicate that Kaspers made the decision, on the
spot and without consulting his client, to suspend Powell for a day. However, when asked who
made the decision to suspend Powell, Torres testified “I believe that was my decision.”
5
For still another reason, I reject the argument that Mr. Kaspers, on October 13, simply
asked Powell if he had received permission to leave work at 11 a.m. to attend bargaining,
received an affirmative answer and then, without further inquiry, told Powell he was being
suspended. Such a brusk and precipitous action would be out of character.
10
During the nine days of hearing, Mr. Kaspers consistently impressed me with his
intellect, his meticulous attention to detail, and his civility and professionalism. A lawyer of his
intellect certainly would recognize that Powell’s absence from the bargaining table on October
12 did not, by itself, indicate that Powell had intended to deceive his supervisor when he
received permission to leave work early. A lawyer of Mr. Kaspers’ meticulousness would not 15
jump to a hasty conclusion about Powell without first ascertaining all the facts, including what
Powell was doing on the afternoon of October 12 and why he wasn’t at the bargaining session.
A lawyer of Mr. Kaspers’ civility and professionalism would not accuse Powell of lying without
first inviting him to present his side of the story and considering it.
20
In sum, it would be quite out of character for Mr. Kaspers to impose discipline summarily
on Powell without at least asking what Powell had been doing the previous afternoon and why he
wasn’t at the bargaining table. Moreover, Mr. Kaspers took the witness stand after having heard
other witnesses testify that he had asked Powell about his activities the previous afternoon and
that Powell had revealed his participation in the Board’s investigation. If this testimony had not 25
been true, Kaspers would have contradicted it when he took the witness stand. However, he did
not. For all these reasons, I conclude that, before informing Powell that he was suspended, Mr.
Kaspers learned that Powell had been participating in the Board’s investigation.
It may be noted that even if I assumed, for the sake of analysis, that Respondent had not30
known about Powell’s protected activity before Kaspers announced the suspension, the
immediate objections plainly placed Respondent on notice that Powell had been engaging in
protected activity. The suspension was not to take effect until the next day, so Respondent had
time to rescind it. However, notwithstanding its knowledge of Powell’s protected activities, it
proceeded with the suspension.35
Before deciding which analytical framework should be used in evaluating the facts, some
further discussion may be warranted concerning the exact reason that Respondent disciplined
Powell. Based on Powell’s credited testimony, I have found that when Kaspers announced the
suspension, he told Powell “The Company doesn’t pay you to investigate. You are suspended 40
for a day...You lied. You weren’t here.” This remark indicates that Respondent suspended
Powell for supposedly telling a falsehood. It is important to ascertain, as exactly as possible, the
nature of the claimed “falsehood.”
Although Kaspers told Powell that the “Company doesn’t pay you to investigate,”45
Respondent did not pay Powell or any of the Union’s negotiating committee members for the
JD(ATL)–35–07
33
time they spent in negotiations. Rather, the Union paid them. While at the bargaining table, they
were off Respondent’s clock and on the Union’s. Accordingly, I cannot conclude that
Respondent disciplined Powell for taking money to perform a task and then failing to do it.
Instead, Kaspers’ claim that Powell lied appears to mean that Powell gave a false reason 5
for requesting to leave work early. In fact, Powell did not request to leave work early but instead
was following Torres’ instruction. But even assuming for the sake of analysis that Powell had, in
fact, said “I’m leaving work early to attend the bargaining session,” that statement would not
have been a lie. Powell indeed had been present at the negotiating site at the appointed time, a
fact Respondent knew when it imposed the discipline. Powell’s presence at the bargaining table 10
clearly negates any inference that he falsely stated his intentions when leaving work.
Nonetheless, Respondent either is claiming that Powell gave one reason for leaving work
early while actually intending to do something else, or else that he later gave Respondent a false
explanation concerning where he had been. Thus, Respondent issued Powell an “Employee 15
Disciplinary Report” which stated, in part:
On 10/12/05 Rollie Powell left Mesker Door at 11:00 a.m. for the stated purpose
of attending a bargaining session between the United Steelworkers Union and Mesker
Door scheduled for that afternoon. While the commencement of the scheduled 20
bargaining session was somewhat delayed, the bargaining session lasted more than 2–1/2
hours on 10/12. Rollie Powell was not present for and did not participate in any part of
the more than 1–1/2 hour bargaining session. Mr. Powell’s absence during the last half
of the workday on 10/12 was, therefore, not only unexcused, but the reason he provided
to the Company prior to leaving work on 10/12 proved to be a false reason. While 25
providing the Company with a false reason for being absent from work is a serious
offense for which immediate termination may be appropriate (see, for example, the 2004
termination of Roy Brooks for falsifying the reason for his absence from work), in the
interest of reducing the negative effect that Mr. Powell’s absence from the 2–1/2 hour
bargaining session on the afternoon of 10/12 had on the progress that the Union and the 30
Company have been making at the bargaining table, the decision was made not to
terminate Mr. Powell’s employment but to instead give him only a one day suspension
without pay for falsifying the reason for his absence from work on the afternoon of 10/12.
The phrase “providing the Company with a false reason for being absent from work”35
reasonably could imply either that an employee lied to obtain permission to leave or, after
returning from an absence, lied about what he had been doing or where he had been. The record
establishes that Powell had done neither.
The credited evidence convincingly establishes that Powell did not falsify the reason for 40
his absence from work at any time. Even assuming that Powell had said he was leaving work to
go to the bargaining session, that is precisely what he did. Moreover, he later explained to
Respondent’s negotiators exactly where he had been, namely, with the Board agent. Respondent
therefore had no reason to accuse him of any kind of falsehood.
45
The process of applying the law to the facts must begin with a determination of what
analytical framework should be used to evaluate the evidence. In general, the Board does not
perform a Wright Line analysis when an employer ostensibly disciplines an employee for
JD(ATL)–35–07
34
misconduct committed while the employee was engaged in protected activity. In that
circumstance, the appropriate inquiry focuses on whether the claimed misconduct is so egregious
that it removes the employee from the protection of the Act. Beverly Health & Rehabilitation
Services, 346 NLRB No. 111 (May 8, 2006). Sometimes, this method of analyze is called the
Burnup & Sims framework because of the Supreme Court decision which informed its 5
development. See Labor Board v. Burnup & Sims, 379 U.S. 21 (1964).
Under the Burnup & Sims framework, the General Counsel bears the threshold burden of
establishing that an employee had engaged in protected activity and that the disciplinary action
resulted from conduct associated with that activity. Once the General Counsel has carried this 10
burden, the respondent may rebut the government’s case by showing that it held an honest belief
that the employee had engaged in misconduct during the course of that protected activity. Proof
that the respondent held such an honest belief defeats the government’s case unless the General
Counsel then can prove that the employee actually did not engage in the misconduct. See, e.g.,
Pratt Towers, Inc., 338 NLRB No. 8 (September 30, 2002).15
However, this analytical framework should not be used where the respondent did not hold
an honest, good faith belief that the disciplined employee had engaged in misconduct. If such a
belief does not exist, then the Board analyzes the facts using the Wright Line framework. See
Primo Electric, 345 NLRB No. 99 (October 24, 2005).20
Accordingly, whether the Burnup & Sims or the Wright Line framework should be used
in this case turns on whether Respondent held an honest, good faith belief that Powell had
engaged in misconduct. The credited evidence compels a conclusion that Respondent did not
hold such a good faith, honest belief.25
Respondent’s assertion that Powell lied assumes that Powell asked management for
permission to leave work at 11:00 a.m. on October 12 and, to support that request, falsely
represented that he needed to leave at that time to participate in the negotiations. However,
Powell’s credited testimony establishes that he did not initiate such a request. Rather, Plant 30
Manager Torres informed Powell of the change in meeting time and instructed Powell to leave
work at 11 o’clock.
Thus, Respondent’s argument that Powell lied is not based on anything Powell said to
Plant Manager Torres. Rather, he supposedly misled management by what he did not say. Thus, 35
Respondent elicited this testimony from Plant Manager Torres:
Q. At any point on October 12, did Rollie Powell communicate to you or to your
knowledge to anyone in the company that he needed to be absent from work for
any reason other than to attend the bargaining?40
A. No, he did not.
Powell’s supposed failure to request time off for another reason becomes, in
Respondent’s argument, a lie. However, this argument not only is disingenuous but
transparently so.45
JD(ATL)–35–07
35
Credited evidence establishes that the management negotiators did not arrive at the
meeting place until about an hour and a half after the scheduled time. The Union tried
unsuccessfully twice to contact them but could not get through. Moreover, it should have been
easy for the Respondent’s negotiators to get a message to the Union’s bargaining team by calling 5
the front desk of the hotel where they were going to meet. Instead, the Union negotiators waited
without knowing when their counterparts would arrive, if at all.
On October 13, Powell made it clear to Kaspers and Torres that he had indeed been
present at the meeting site, where he waited for nearly an hour before deciding to leave. Others 10
on the Union’s team confirmed to Kaspers and Torres that Powell had been present and Union
Representative Anderson told them that he had tried unsuccessfully, twice, to contact them by
telephone.
Both Kaspers and Torres testified, but neither offered any reason to disbelieve the 15
information the Union negotiators had provided. If Respondent had a reason to doubt that
Powell had been present at the meeting site on October 12, surely Kaspers and Torres would
have described such a reason in their testimony. Likewise, if Respondent had any reason to
doubt that the Union negotiators had tried to contact the management team, Kaspers and Torres
would have made this reason clear when they took the witness stand.20
Respondent has cited no basis for an honest belief that Powell had tried to deceive
management or otherwise had told a lie. Moreover, the information provided by the Union’s
negotiators, including Powell himself, gave Respondent good reasons to believe that Powell had
not been deceptive. Respondent adhered to its claim – that Powell had lied – even in the absence 25
of evidence to support that claim and in the presence of evidence which contradicted it. More
than that, Respondent offered no explanation for doing so. Accordingly, Respondent has failed
to establish that it held an honest, good faith belief that Powell had engaged in misconduct.
Were I to conclude that Respondent held an honest belief that Powell had lied, or 30
otherwise engaged in misconduct, I would then examine whether such misconduct was so
egregious as to deprive him of the protection of the Act. Here, Powell’s only possible
“misconduct” was to leave the bargaining site before the management negotiators arrived.
Therefore, were I to analyze this case under the Burnup & Sims framework, I would conclude
that this “misconduct” – if it can even be called misconduct – wasn’t so egregious. After waiting 35
long past the scheduled starting time, and after attempts to contact the Respondent’s negotiators
had been unsuccessful, Powell left. As noted above, Respondent wasn’t paying Powell for this
time it kept him waiting without explanation. Powell had no duty to continue waiting, on his
own time, for Respondent’s tardy negotiators. At that point, leaving was not misconduct.
40
However, I do not analyze the facts using the Burnup & Sims framework. Because
Respondent did not hold an honest belief that Powell had engaged in misconduct, use of the
Burnup & Sims framework isn’t appropriate. Primo Electric, above. Therefore, I will examine
the facts using the Wright Line procedure described earlier in this decision.
JD(ATL)–35–07
36
The General Counsel has satisfied the first Wright Line requirement by proving that
Rollie Powell engaged in activities protected by the Act. Powell’s service as a member of the
Union’s negotiating committee certainly enjoys the Act’s protection.
5
Moreover, on September 9. 2005, Powell filed an unfair labor practice charge against
Respondent. This charge, docketed as Case 10–CA–35863, actually identifies the Charging
Party as the United Steelworkers of America, AFL–CIO/CLC. However, Powell signed the
charge, which listed his title as “Negotiating Committee Member.” Filing this charge, of course,
constituted protected activity. Powell also engaged in protected activity on October 12, 2005, 10
when he met with the Board agent investigating the charge.
The record also establishes the second Wright Line element by proving that the
Respondent knew about Powell’s protected activities. Powell’s service as a member of the
Union’s bargaining committee brought him into contact with management and identified him 15
with the Union.
Respondent also had notice of Powell’s protected activity filing the unfair labor practice
charge. As discussed above, Powell’s name and signature appear at the bottom of it.
Respondent also knew that Powell had met with the Board investigator on October 12, 2005 20
because the next day, Powell told Respondent’s attorney and plant manager. Powell made this
disclose in explaining why he had not participated in the October 12 bargaining session.
The government also has proven the third Wright Line element. Respondent suspended
Powell for one day and this suspension certainly constituted an adverse employment action.25
Finally, the General Counsel has satisfied the fourth Wright Line requirement by proving
a connection between Powell’s protected activities and the adverse employment action. Ample
persuasive evidence demonstrates that Respondent’s hostility to Powell’s protected activities was
a substantial and motivating factor in the decision to suspend him.30
The evidence leaves no doubt that Powell’s filing an unfair labor practice charge annoyed
Respondent’s management. Indeed, the Respondent’s attorney’s ire flared the very day before
he suspended Powell.
35
Based on the testimony of Regan Long, whom I credit, I find that when Attorney Kaspers
arrived at the bargaining session on October 12, 2005, told the Union negotiators, “I guess a
thanks should be in order to you guys for tying us up all morning with the NLRB Charges...”
Kaspers then referred to the “cost of all this litigation” and told the employees that they would
not be receiving the raises they expected.40
The next day, when Kaspers learned that Powell had been meeting with the Board agent
the previous afternoon, he suspended Powell. This sequence establishes a nexus between
Powell’s protected activity and the adverse employment action.
JD(ATL)–35–07
37
In sum, the General Counsel has proven all four of the Wright Line elements. At this
point, the burden of going forward normally would shift to the Respondent, to present evidence
that it would have taken the same action even in the absence of protected activity. However,
when a respondent has asserted a pretextual reason for taking an adverse employment action, that 5
resort to pretext forfeits the respondent’s right to present rebuttal evidence. Limestone Apparel
Corp., 255 NLRB 722 (1981)(“a finding of pretext necessarily means that the reasons advanced
by the employer either did not exist or were not in fact relied upon, thereby leaving intact the
inference of wrongful motive established by the General Counsel); Golden State Foods Corp.,
340 NLRB 382, 385 (2003)(“if the evidence establishes that the reasons given for the 10
Respondent’s action are pretextual...the Respondent fails by definition to show that it would have
taken the same action for those reasons, absent the protected conduct...”).
Just as the evidence establishes that Respondent did not have an honest, good faith belief
that Powell had engaged in misconduct, it reveals that Respondent tried to hide its discrimination 15
behind a pretext. Indeed, when ranked against the pretexts typically encountered in labor law,
this one is particularly obvious, transparent, and unconvincing. As a counterfeit reason for the
discipline, it appears as genuine as a $5 bill showing a bald Lincoln.
Respondent claims it suspended Powell because he lied about his intention to attend the 20
bargaining session. Respondent’s actions belie that claim. Even when presented with un-
contradicted evidence that Powell had, in fact, been present at the meeting site at the appointed
time, and therefore had not misrepresented his intention, Respondent persisted in imposing the
discipline. Respondent’s determination to punish Powell existed independent of the reason
Respondent proffered for it.25
Respondent’s true, retaliatory reason appears all too obvious in the words and actions of
its chief negotiator. More than once, Kaspers announced that employees would not receive any
wage increase because of the pending unfair labor practice charge. The existence of the charge
clearly bothered him. Then, on October 12, he found himself meeting with a Board investigator 30
concerning the charge, and, in fact, spending more time than he had planned for that purpose.
Powell’s decision to meet with the Board agent later that same day, rather than to wait
longer for Kaspers and Torres to arrive at the bargaining site, did more than remind Respondent
of Powell’s initial involvement with the charge. Now, it appeared, Powell had “stood up” the 35
management negotiators, choosing to meet instead with the Board investigator. Thus scorned,
Respondent reacted with fury. Kaspers accused Powell of lying and then suspended him.
As the Board observed in Rood Trucking Co., 342 NLRB 895 (2004), a finding of pretext
defeats any attempt by a respondent to show that it would have discharged a discriminatee even 40
absent protected activities. Accordingly, I conclude that Respondent has failed to rebut the
General Counsel’s case.
Because Powell’s protected activities included signing the unfair labor practice charge
and meeting with the Board agent, Respondent’s retaliation for those activities violated Section 45
8(a)(4) as well as Sections 8(a)(3) and (1) of the Act. I recommend that the Board so find.
JD(ATL)–35–07
38
Complaint Paragraph 16(c)
Complaint paragraph 16(c) alleges that on about October 13, 2005, Respondent imposed
points on Rollie Powell under the Respondent’s attendance system. Respondent admits this 5
allegation but it denies that it did so because of employees’ protected activities, as alleged in
Complaint paragraph 18. Respondent also denies that its action violated Section 8(a)(1), (3) and
(4), as alleged in Complaint paragraphs 26, 27 and 28. During the hearing, the parties entered
into the following stipulation:
10
Without waiving Respondent’s position that everything which occurred after
May 8, 2006 was lawful, the parties stipulate that General Counsel’s Exhibit 21a is an
attendance point system that the company and the union negotiated and agreed upon in
July 2005 and which was implemented effective August 1, 2005.
15
General Counsel’s Exhibit 21b is the attendance point system that has been in
effect since June 6, 2006.
Under the negotiated attendance policy, an employee who received a written warning
also would receive a negative attendance point, and an employee who received a one–day 20
suspension also would receive two negative attendance points. The Respondent also could
assess negative points for absences.
The system also provided for positive “earn back points” which would cancel out
negative points. Employees received such points for good attendance. When an employee’s 25
score reached 9 positive points, the employee could “sell back” 6 of them for a paid day off.
When Respondent suspended Powell in October 2005, that disciplinary action
automatically resulted in Powell receiving negative attendance points. The Complaint treats this
imposition of points as a separate act of unlawful discrimination, but it can also be regarded as a 30
part of the violation alleged in Complaint paragraph 16(b).
Either way, the imposition of negative points violated Section 8(a)(1), (3) and (4) of the
Act. But for Respondent’s unlawful suspension of Powell, he would not have been assessed
negative points under the attendance system. Accordingly, the imposition of points was 35
unlawful. I recommend that the Board find that Respondent, by this action, violated Section
8(a)(1), (3) and (4) of the Act.
Powell’s employment with Mesker Door ended in September 2006. From the present
record, it is unclear whether the unlawful imposition of negative points resulted in Powell being 40
ineligible for a paid day off to which he otherwise would have been entitled. Such an issue must
be left for resolution in the compliance phase of this proceeding.
Complaint Paragraph 16(d)
45
Complaint paragraph 16(d) alleges that on about June 21, 2006, Respondent discharged
employee Cecil Herren. Respondent admits this allegation.
JD(ATL)–35–07
39
Complaint paragraph 19 alleges that Respondent discharged Herren because employees
advised Respondent of their intention to seek recourse for perceived discrimination for Union
activities through the National Labor Relations Board and to discourage employees from filing
charges and giving testimony under the National Labor Relations Act. Respondent denies this 5
allegation. Respondent also denies that Herren’s discharge violated Section 8(a)(4) and (1) of
the Act, as alleged in Complaint paragraph 28. (The Complaint does not allege that Herren’s
discharge violated Section 8(a)(3) of the Act.)
Herren was a production employee and, on June 16, 2006, was operating a punch press 10
making steel doors. The settings on such a machine do not stay fixed indefinitely but may drift
over time. Moreover, the metal being punched may vary from piece to piece. Therefore,
Respondent has a rule that an operator must measure every twentieth door to make sure that it
meets specifications.
15
Supervisor Richard Watson reminded Herren, on June 16, 2006, of this “check every 20”
rule. According to Watson, Herren said that he was good enough at his job to run 60 doors
without having to check. Plant Manager Roth, who also was present at this point, quoted Herren
saying that he was good enough at his work he only had to check every 50 doors. Additionally,
Assistant Plant Manager Smith testified that, on this same day, he heard Herren say that he was 20
good enough that he only had to check every 50 doors. However, it is not entirely clear that
Smith was referring to the same conversation Roth and Watson described.
Herren denied saying, in this conversation, that he was good enough that he only had to
check every 50 doors, but he admitted making that statement later the same day. He testified as 25
follows:
Q. At the front end of that day did you have a discussion with James Smith and Rick
Watson in which you said, I am good enough at this, I only have to check my
doors every 50?30
A. No. That was after the doors were already messed up.
For two reasons, I do not credit Herren’s denial. First, three other witnesses, Roth, Smith
and Watson, testified that he said he was good enough that he only had to check every 50 doors
during the discussion early in the day. This 3–to–1 ratio, although not dispositive, certainly does 35
not weigh in Herren’s favor.
Second, as discussed below, Herren’s work on June 16, 2006 wasn’t good, and 20 doors
had to be scrapped. If we assume that Herren had not bragged, earlier in the day, that he didn’t
need to check every twentieth door because of his skill, it would be quite odd for him to make 40
this claim later, while discussing the bad doors coming off his press. On the other hand, if he
had made such a statement to the supervisors before doing the bad work, it naturally would come
back to haunt him in the later discussion.
For these reasons, I find that Herren did, in this early morning conversation, claim that 45
his skill exempted him from needing to follow the check–every–20 rule. Notwithstanding
Herren’s claim, Supervisor Watson told him to follow the rule.
JD(ATL)–35–07
40
He did not. Instead, he made 40 faulty doors, 20 of which were unusable and the
remaining 20 marginally usable.
On June 19, 2006, Supervisor Watson, and Assistant Plant Manager Smith called Herren 5
to the office, suspended him for one day, and reassigned him to work on another task which had
a lower rate of pay.
Herren testified that he had expected to be disciplined because “I messed them [the
doors] up, it was my fault.” However, the severity of the discipline surprised him. Herren told 10
the supervisors that he considered the discipline unjust and wanted to go to arbitration.
According to Herren, he also told them that he was going to “seek grievance through the
National Labor Relations Board.” However, both Smith and Watson testified that Herren never
mentioned going to the Board. Watson wrote an “Employee Disciplinary Report” summarizing 15
the meeting. This report included an “Employee’s Remarks” section in which the following
handwritten comment appears: “This is unjust and wishes to go to arbitration.” The report
makes no reference to the Board.
Considering that Smith’s testimony corroborates Watson’s on this point, and that no 20
mention of the Board appears in the Employee Disciplinary Report, I conclude that Herren
mentioned only arbitration, and not going to the Board, during the disciplinary interview on June
19, 2006. The witnesses agree, however, that during the meeting, Herren said that the
supervisors were imposing this discipline because he had voted for the Union, and that the
supervisors denied it.25
It should be noted that the arbitration procedure mentioned by Herren did not arise out of any
agreement with the Union. Indeed, Respondent had withdrawn recognition from the Union more
than a month earlier, on May 8, 2006. The record suggests that Respondent created the
arbitration procedure, but does not disclose exactly when Respondent did so.30
As noted above, on June 16, 2006, Plant Manager Roth had heard Herren brag that his
skill made it unnecessary for him to follow the rule. Roth previously had been plant manager at
the Huntsville facility, and then had returned from retirement in February 2006 to assume that
position again. Roth had some experience with Herren from his earlier duty as plant manager. 35
Either Herren’s bragging on June 16 or his massive mistake later that day, or both, reminded
Roth of that earlier experience, and Roth decided to review Herren’s personnel record. He
wanted to find out about Herren’s performance during the period before Roth came back from
retirement.
40
Documents in the personnel file indicated problems with Herren’s work, including
instances in which Herren had failed to check his parts, the same type of error which had resulted
in the 40 bad doors. In particular, it troubled Roth that there were, in Roth’s words, “many
reports of insubordination. Spitting on the floor after being told not to and things of that nature.”
In light of these previous incidents, Herren’s bragging that his skill placed him above the rule 45
took on additional significance.
JD(ATL)–35–07
41
Roth testified that, after reviewing these records, he “had no reason to think that [Herren]
wouldn’t continue to [do] the same things that he’d been doing.” Roth converted the suspension
into a discharge.
5
Following the Wright Line framework, I conclude that the General Counsel has proven
that Herren had engaged in some protected activity. Specifically, Herren had testified in a
previous Board proceeding in August 2005.
The General Counsel argues that Herren engaged in other protected activity more 10
proximate to his discharge. According to Herren, when he received the suspension, he told the
supervisors that Respondent was taking that action because Herren voted for the Union. Herren
also testified that he told the supervisors he would take the matter to arbitration and to the Board.
For the reasons discussed above, I do not credit Herren’s testimony that he told the 15
supervisors he would go to the Board. However, I do find that Herren told the supervisors that
he would take the matter to arbitration.
If the arbitration procedure had arisen out of negotiations between Respondent and the
Union, Herren’s statement that he intended to use this procedure would constitute an assertion of 20
a right under a collective–bargaining agreement and therefore would enjoy the Act’s protection.
White Electrical Construction Co., 345 NLRB No. 90 (September 30, 2005); NLRB v. City
Disposal Systems, 465 U.S. 822, 840 (1984); Interboro Contractors, Inc., 157 NLRB 1295, 1298
(1966), enfd. 388 F.2d 495 (2d Cir. 1967). However, the arbitration procedure was not created
by contract.25
The General Counsel argues that Herren’s expression of intent to seek arbitration still
would enjoy the Act’s protection because arbitrator would decide whether Herren had been
discriminated against because of his support for the Union, a question relating to the Act. “Mr.
Herren clearly indicated an intent on his part to vindicate rights that are provided to employees 30
only by the National Labor Relations Act,” the General Counsel asserts, “and discrimination for
that invocation is a violation of Section 8(a)(4).”
The language of Section 8(a)(4), however, may not be quite as wide as the General
Counsel claims. The provision makes it unlawful “to discharge or otherwise discriminate against 35
an employee because he has filed charges or given testimony under this Act.” 29 U.S.C. Sec.
158(a)(4). Nothing in Section 8(a)(4) specifically refers to vindicating rights that are provided to
employees only by the Act. Additionally, using the non-contractual arbitration procedure would
not constitute either union activity or activity undertaken by employees in concert for their
mutual aid and protection. Absent some specific case authority, I will not conclude that the Act 40
protects Herren’s remark about taking the matter to arbitration.
Herren did engage in one other protected activity. After becoming disaffected with the
Union, Herren signed the petition on which Respondent relied in withdrawing recognition.
Because the Act protects both this petition signing and Herren’s earlier testimony in the August 45
JD(ATL)–35–07
42
2005 Board proceeding, I conclude that the General Counsel has established that Herren engaged
in protected activity.
Additionally, I conclude that the government has satisfied the second Wright Line
requirement. Respondent obviously knew about Herren’s testimony in a proceeding to which it 5
was a party. Respondent also knew about Herren’s signing the petition, because Respondent
received that petition and relied on it when it withdrew recognition from the Union.
The General Counsel also has established that Herren suffered an adverse employment
action. Discharge was adverse to his employment.10
However, the government has not proven a connection between Herren’s protected
activity and his discharge. About 10 months elapsed between Herren’s testimony in the Board
proceeding and his discharge, so I do not infer any connection from the timing. Moreover, there
is no other evidence that Herren’s testimony was a substantial or motivating factor in the 15
decision to discharge him.
It seems unlikely that Respondent would retaliate against Herren for signing an anti–
Union petition and I conclude that Respondent did not.
20
Based upon my observations of the witnesses, I credit Plant Manager Roth’s testimony.
His explanation of the decision to discharge Herren seems highly plausible. Considering
Herren’s demonstrated attitude – he maintained that he did not have to follow the check–every–
20 rule even after ruining 20 doors – Roth foresaw that Herren would continue to ignore
supervision. That, in turn, would lead to more unacceptable product in the future.25
Section 10(c) of the Act includes the proviso that “No order of the Board shall require the
reinstatement of any individual as an employee who has been suspended or discharged, or the
payment to him of any backpay, if such individual was suspended or discharged for cause.”
Crediting Plant Manager Roth’s testimony, I conclude that Herren’s termination was a discharge 30
for cause within the meaning of this proviso.
Because the General Counsel has not proven the fourth Wright Line element, the
Respondent has no rebuttal obligation. The government has not made its case. Therefore, I
recommend that the Board dismiss the allegations relating to Herren’s discharge.35
Complaint Paragraphs 16(e), 16(f) and 16(g)
Complaint paragraph 16(e) alleges that on about July 12, 2006, Respondent imposed a 2–
day suspension on employee Rollie Powell. Complaint paragraph 16(f) alleges that on about 40
July 14, 2006, Respondent reassigned Powell to take–off duties on the frame department paint
line. Complaint paragraph 16(g) alleges that on about July 14, 2006, Respondent cut Powell’s
rate of pay.
Respondent admits all of these allegations, but denies that it took those actions “because 45
of employees’ union activities and concerted protected activities and because employees filed
JD(ATL)–35–07
43
charges and gave testimony pursuant to the National Labor Relations Act,” as alleged in
Complaint paragraph 18. Respondent also denies that its actions violated Section 8(a)(1),
8(a)(3) and 8(a)(4) of the Act, as alleged in Complaint paragraphs 27 and 28.
On July 12, 2006, Respondent suspended Powell for 2 days giving, as the stated reason 5
for the suspension, that Powell had made 130 bad parts. For the same stated reason, it
transferred Powell to a lesser–paying job on the frame department paint line.
The General Counsel argues, in effect, that Respondent focused its attention on Powell
because of his protected activities, and subjected him to more scrutiny than other employees. 10
The General Counsel further asserts that Respondent would not have imposed a 2–day
suspension but for the existence of the October 2005 discipline, which was unlawful.
In early July 2006, Powell was a production employee making door frames. The credited
evidence establishes that on July 7, 2006, Powell produced 130 frames which significantly 15
departed from the specifications. After examining the faulty frames, management concluded that
they might be repaired by welding. With the customer’s permission, Respondent had the frames
welded and shipped to the customer. As Respondent’s Answer admits, management then
suspended Powell for 2 days and reassigned him to a lower–paying job.
20
The General Counsel’s argument goes into considerable detail concerning exactly how
the frames failed to meet Respondent’s specifications, but I reject any suggestion that the defects
were minor, tolerable, or no different from work product which had been acceptable in the past.
The credited evidence establishes that the defects were serious.
25
In reaching this conclusion, I specifically do not credit the testimony of James
Thompson, an employee in Respondent’s warehouse. Thompson admitted that his duties involve
determining whether products are properly labeled, inventoried, and stored and that quality
control was not his job. However, Thompson’s testimony pertained to whether the 130 frames
complied with specifications, which is a quality control issue.30
Although Thompson testified that he measured all 130 frames, I am skeptical. Thompson
testified that the measurements took “maybe five, ten minutes.” Completing the measurements
in only 10 minutes would require Thompson to have measured 13 frames a minute or one frame
every 4.6 seconds. That pace sounds rather rapid, particularly for an employee whose regular job 35
duties do not involve quality control. Thompson also testified that the frames were bound on a
pallet and that he did the measurements without unloading the pallet or breaking the packaging
apart.
Additionally, to determine whether the frames met specifications required the 40
measurement of miters, but Thompson testified that he usually did not make measurements of
miters. Thompson’s knowledge of the specified tolerances appeared to be limited. On cross–
examination, he testified, in part, as follows:
Q. Do you know what the tolerances are for a throat opening on an 800 series 45
frame?
A. Throat opening, no.
JD(ATL)–35–07
44
Q. Have you ever seen the Steel Door Institutes published technical data series
manufacturing tolerance standard for steel doors and frames?
A. I’m not aware of it, no.
Considering that Thompson’s job duties did not include quality control, that he had 5
limited knowledge of the technical standards, and that he claimed to have measured 130 frames
in 5 or 10 minutes, I conclude that his testimony is not reliable and do not credit it.
Additionally, the credited evidence does not establish that Respondent subjected Powell
to greater scrutiny than other production employees or imposed upon him any conditions which 10
would cause him to make a mistake. The General Counsel argues that Plant Manager Roth
instructed Powell that his production “needed both to be of sufficient quality and run quickly”
and that this instruction put Powell in a no–win situation: Powell either had to sacrifice quality
to meet the production standard or else attend to quality and fail to meet the standard.
15
The record establishes that Plant Manager Roth did, in fact, talk to Powell about
increasing his production. Based on my observations of the witnesses, I have concluded that
Roth’s testimony is more reliable, and resolve any conflicts by crediting Roth. Accordingly, I
find that Roth was concerned about Powell’s production level and believed it would improve if
Powell spent more time at his machine. Roth told Powell that he should “stay on the job” rather 20
than leave his machine. Roth also said that he didn’t want Powell to work any faster; he wanted
Powell to work “smarter, not harder.”
The credited evidence fails to establish that Respondent imposed on Powell any
production standard more onerous than that placed on other employees. Roth’s instruction that 25
Powell work “smarter, not harder,” simply reflected Roth’s believe that if Powell stayed at his
machine and devoted his attention to the task, he would increase his production rate without
diminishing the quality.
Credited evidence also does not establish that Respondent subjected Powell to any closer 30
scrutiny. Clearly, Respondent was concerned about increasing production. Indeed, it was so
focused on production that it brought Roth out of retirement to replace the existing plant
manager. Although this change did result in a close examination of the production employees’
work, the record does not indicate that this scrutiny fell disproportionately on Powell.
35
In sum, I conclude that on July 7, 2006, Powell made 130 defective frames. Management
reasonably concluded that Powell could not have been following the check–every–20 rule
because, if he had been following that rule, he would have detected the problem long before the
number of bad frames reached 130.
40
Further, the record establishes that Powell had clear notice of this rule. On April 19,
2004, he had received a warning for “defective and improper work.” This warning specifically
stated: “Check every 15 to 20 from now on and you will not have as many bad parts.”
Analyzing the facts under the Wright Line framework, I conclude that the General 45
Counsel has proven the first 3 requirements. Powell had engaged in extensive protected activity,
including serving on the Union’s bargaining committee, filing charges with the Board, and
JD(ATL)–35–07
45
meeting with the Board agent. For the reasons discussed above, I conclude that Respondent
clearly knew about these activities. Additionally, there is no doubt that a 2–day suspension
constitutes an adverse employment action.
The government also has proven the required link between the protected activities and the 5
adverse employment action. As discussed above in connection with Complaint paragraphs 16(b)
and 16(c), in October 2005, Respondent had disciplined Powell in retaliation for his protected
activities and had resorted to a pretext in doing so. Powell’s protected activities had included
filing a charge with the Board and meeting with a Board agent, and retaliation for such activity
indicates hostility to the Act and its purposes.10
Respondent also committed certain other unfair labor practices, discussed above.
Accordingly, I conclude that animus towards union and other protected activity constituted a
substantial and motivating factor in the decision to suspend Powell for 2 days. The burden
therefore shifts to Respondent to prove that it would have taken the same action in any event, 15
even if Powell had not engaged in protected activities.
The record establishes that Respondent had disciplined other employees for making
defective parts. On July 19, 2002, it discharged employee Jeff Kimbrough for that reason, the
discharge notice explaining that “due to past history (3 additional write ups) we are terminating 20
your employment with Mesker Door.”
Respondent’s evidence establishes that it would have taken some disciplinary action
against Powell even if the absence of protected activity. However, Respondent has not proven,
by a preponderance of the evidence, that it would have suspended him for 2 days and transferred 25
him to a lower paying job. To the contrary, Respondent’s own evidence indicates the opposite.
Michael Torres, who was then customer relations manager, attended the meeting in which
Roth informed Powell of the 2–day suspension and his transfer to the lower–paying job. Torres’
notes of that meeting include the following:30
George [Roth] told Rollie [Powell] that the reason he was moved to the paint line
was for running bad parts.
Rollie asked if the parts were scrapped, because James Smith had told him that
they were going to be scrapped.35
George told Rollie that the customer, Wheeler Hardware had been contacted and
because they were going to weld the frame they had agreed to work with them.
Rollie then said so you are telling me that I was suspended for running parts that
you are going to ship to a customer.
George said no, I’m telling you that you were suspended for running 40
unacceptable parts. You have had several write–ups in the past and your continued
failure to run acceptable parts resulted in your suspension.
* * *
Rollie asked why he was suspended for 2–days.
George said because he already had a suspension for 1–day.45
Based on Torres’ notes, I conclude that Respondent’s unlawful suspension of Powell in
October 2005 resulted in Respondent’s July 2006 decision to suspend Powell for 2 days, rather
JD(ATL)–35–07
46
than for a lesser period. Therefore, I further conclude that Respondent has not carried its rebuttal
burden.
In sum, I recommend that the Board find that Respondent’s 2–day suspension of Powell,
and the related transfer of Powell to a lower–paying job, violated Section 8(a)(1), (3) and (4) of 5
the Act.
Withdrawal of Recognition
Respondent has admitted that, during the period March 22, 2005 until May 8, 2006, the 10
Union was the exclusive representative, by virtue of Section 9(a) of the Act, of the appropriate
bargaining unit described above under “Admitted Allegations.” It also admits that on May 8,
2006, it withdrew recognition of the Union and since then has refused to recognize and bargain
with the Union, as alleged in Complaint paragraph 20. However, Respondent asserts that it
lawfully withdrew recognition because the Union no longer enjoyed the support of a majority of 15
bargaining unit employees.
Alan Frazier, an employee in Respondent’s seamless department, prepared a petition
stating, “We, the undersigned, no longer wish to be represented by the United Steelworkers
Union.” Frazier signed it on April 27, 2006, and then began asking other employees to sign it. 20
By May 8, 2006, when Frazier presented the petition to Plant Manager Roth, it had been signed
by either 34 or 35 employees.
Although Respondent counts 35 signatures, the General Counsel questions whether one
of those signatures should be counted. At the time the plant manager received the petition, the 25
bargaining unit consisted of 65 employees. Therefore, even assuming that only 34 of the
signatures are counted, more than one–half of the bargaining unit had expressed an intention not
to be represented by the Union. Based on the petition, Respondent withdrew recognition.
The government has not asserted that Frazier was Respondent’s supervisor and the record 30
does not establish such status. Additionally, there is no evidence that Frazier was related to any
member of management and he credibly testified that he was not. The record also does not
establish that management sponsored or encouraged Frazier to circulate the petition or assisted
him in that effort.
35
The General Counsel, however, argues that Respondent lawfully could not withdraw
recognition because it had committed unfair labor practices which were unremedied, and which
caused the Union’s loss of support. In particular, the government contends that unlawful
statements in Plant Manager Roth’s May 4, 2006 speech to employees caused them to abandon
support for the Union.40
The Board has held that evidence in support of a withdrawal of recognition “must be
raised in a context free of unfair labor practices of the sort likely, under all the circumstances, to
affect the union’s status, cause employee disaffection, or improperly affect the bargaining
relationship itself.” Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996). In 45
cases involving unfair labor practices other than a general refusal to recognize and bargain, there
JD(ATL)–35–07
47
must be specific proof of a causal relationship between the unfair labor practice and the ensuing
events indicating a loss of support. Lee Lumber, above; LTD Ceramics, Inc., 341 NLRB 86, 88
(2004).
To determine whether a causal relationship exists between the unfair labor practices and 5
the employee disaffection, the Board considers four factors: (1) The length of time between the
unfair labor practice and the withdrawal of recognition; (2) the nature of the violation, including
the possibility of a detrimental or lasting effect on employees; (3) the tendency to cause
employee disaffection, and (4) the effect of the unlawful conduct on employees’ morale,
organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84 10
(1984).
In the present case, I will not, of course, consider the unfair labor practice which occurred
after the withdrawal of recognition. Respondent’s suspension of Rollie Powell for 2 days in July
2006 could not have affected employee support for the Union before Respondent withdrew 15
recognition two months earlier.
However, the following unfair labor practices, discussed above, will be considered:
1. Manager Torres’ March 9, 2005 statements to Janice Medlock that “that 20
going around talking to people about FMLA, vacations, etc. could jeopardize her job”
that if he heard again that she was keeping records on employees she would be
disciplined.
2. The statements of Respondent’s chief negotiator, William Kaspers, at the
September and October 2005 bargaining sessions, that employees would not receive a 25
wage increase and that the negotiations would not be concluded because of the unfair
labor practice charges.
3. Respondent’s October 13, 2005 suspension of Rollie Powell.
4. Plant Manager Roth’s May 4, 2006 statement “[A]nyone who’s so
unhappy here that you think you need to put this Company out of business needs to move 30
on, find another job, and leave the rest of us the hell alone.”
Plant Manager Torres’ March 9, 2005 statements to Janice Medlock would appear to
have little effect on employee sentiment more than a year later. Besides the amount of time
which elapsed, only one employee heard what Torres said. Therefore, it would appear unlikely 35
to have a detrimental or lasting effect on employees. Additionally, the statement did not directly
concern the Union, making it unlikely to cause employee disaffection. Similarly, it had little
potential to affect employees’ morale, organizational activities or Union membership.
Respondent’s statements at the bargaining table in September and October 2005 similarly 40
were remote in time from the withdrawal of recognition. These statements focused on the filing
of charges rather than on the Union itself. Therefore, I conclude that they would be unlikely to
have a detrimental or lasting effect on employees’ support for the Union. Similarly, the
statements would be unlikely to cause employee disaffection with the Union, and would have
minimal effect on employees’ morale, organizational activities, and Union membership.45
JD(ATL)–35–07
48
Respondent’s October 13, 2005 suspension of Powell also occurred half a year before the
withdrawal of recognition. Although a serious violation, it would be unlikely to have a lasting
detrimental effect. Likewise, the suspension would be unlikely to cause employee disaffection
or have a significant effect on employees’ morale, organizational activities and Union 5
membership.
On the other hand, Plant Manager Roth’s May 4, 2005 speech came at a pivotal time in
Frazier’s efforts to obtain signatures on his petition. Indeed, the General Counsel notes that
Frazier increased his efforts to obtain signatures after the speech. Accordingly, the first Master 10
Slack factor, the length of time between the unfair labor practice and the withdrawal of
recognition, weighs in favor of finding a causal relationship.
However, the nature of the violation does not. As discussed above, Roth’s expressions of
opinion about the Union, or more exactly, some members of the Union’s negotiating committee, 15
enjoy the protection of 8(c) of the Act and are not unfair labor practices. Therefore, I do not
consider them in this analysis. Here, I focus on Roth’s “find another job” remark.
As to the second Master Slack factor, Roth’s May 4, 2006 remarks would not appear to
have a significant detrimental effect on support for the Union. As noted above, Roth directed the 20
force of his criticism at certain unnamed employees who had supported the Union, and not at the
Union itself.
Moreover, I concluded that his “find another job” remark violated the Act because, in the
context of Roth’s entire speech, it referred to employees who had filed unfair labor practice 25
charges. Employees reasonably would understand Roth to be saying that employees should
choose between filing charges and working for Respondent, but that is different from the
message that employees should choose between supporting the Union and working for
Respondent. Although Roth’s remark manifested some hostility towards those who filed unfair
labor practice charges, Roth did not express that kind of hostility towards the Union.30
Roth’s statement might arouse sentiment against the employees whom Roth criticized,
but these individuals already had resigned from the Union’s negotiating committee. Hostility
towards these employees would not automatically translate into hostility towards the Union.
35
Likewise, the implication inherent in Roth’s violative statement, that certain employees
were trying to put the Respondent out of business by filing charges, would have little effect on
employees’ morale, organizational activities, or Union membership. The Union certainly is one
of the Charging Parties in the present proceeding, but in the context of Roth’s entire speech, it
appears clear that he was referring to employees who file charges, rather than to the Union.40
In sum, following the Master Slack analytical framework, I do not find in the record
specific proof of a causal relationship between the unfair labor practices and the employee
disaffection. Therefore, I conclude that the existence of these unremedied unfair labor practices
did not preclude Respondent from lawfully withdrawing recognition. See Champion Home 45
Builders Co., 350 NLRB No. 62, slip op. at 4–5 (August 16, 2007).
JD(ATL)–35–07
49
Accordingly, I recommend that the Board dismiss the Complaint allegations that
Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union.
Unilateral Change Allegations5
Complaint paragraph 21 alleges that on or about May 15, 2006, the Respondent
implemented certain changes to the wage rates of bargaining unit employees. Respondent’s
Answer admits these changes, although it objects that the allegations are irrelevant because
Respondent lawfully withdrew recognition from the Union.10
Complaint paragraph 22 alleges that on or about June 5, 2006, the Respondent
implemented certain changes in its points and attendance system applicable to bargaining unit
employees, such changes pertaining to the method and rate by which employees “earn back”
attendance points assessed to them, the number of allowable points, and the cap on the number of 15
points that may be “earned back” under the system. Respondent’s Answer again raises a
relevancy objection. It further states that, subject to the objection, Respondent “admits that on or
about June 5, 2006, the Respondent implemented certain changes to the attendance point system
applicable to its production, maintenance and warehouse employees pertaining to the rate by
which employees ‘earn back’ points ass[ess]ed to them, as well as the cap on the number of 20
points that may be ‘earned back’ under the system. While the Respondent further admits that it
gave every employee 2–1/2 points on or about June 5, 2006, the Respondent denies that any
change was implemented pertaining to the method by which employees ‘earn back’ points or the
number of allowable points, as alleged in paragraph 22...the Respondent, therefore, denies said
allegations and any remaining allegations in paragraph 22...”25
Complaint paragraph 23 alleges that in or about July 2006, the Respondent implemented
a change to the rules pursuant to which it calculates and determines whether to pay incentive
bonuses to bargaining unit employees. Respondent’s Answer states: “Subject to the
Respondent’s irrelevancy objection...the Respondent admits that around August, 2006, the 30
Respondent changed its incentive bonus system so that eligibility for a bonus now depends upon
productivity and profitability. The Respondent denies all of the remaining allegations set forth in
paragraph 23...”
Complaint paragraph 24 alleges that the subjects set forth in Complaint paragraphs 21, 22 35
and 23 are mandatory subjects of bargaining. Respondent denies this allegation.
Complaint paragraph 25 alleges that Respondent unilaterally engaged in these acts
without prior notice to the Union and without having afforded the Union an opportunity to
negotiate and bargain as the exclusive representative of Respondent’s employees with respect to 40
such acts and conduct and the effects of such acts and conduct. Again, Respondent’s Answer
objects that the allegation is irrelevant because Respondent lawfully withdrew recognition from
the Union on May 8, 2006. However, Respondent’s Answer denies the allegation “since prior
notice to the Union and an opportunity to negotiate and bargain as the exclusive representative of
the Respondent’s employees was afforded to the Union between March 22, 2005 and May 8, 45
JD(ATL)–35–07
50
2006, with respect to changes in wage rates, the attendance point system, and modification of the
incentive bonus system to a bonus system based upon productivity and profitability.”
Because of my conclusion, discussed above, that Respondent lawfully withdrew
recognition from the Union on May 8, 2006, I conclude that it had no duty to bargain when it 5
made the changes described in Complaint paragraphs 21, 22 and 23. Therefore, I recommend
that the Board dismiss these unilateral change allegations.
Conclusions of Law
10
1. Respondent, Mesker Door, Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, United Steelworkers of America, AFL–CIO–CLC, is a labor
organization within the meaning of Section 2(5) of the Act.15
3. On about March 9, 2005, Respondent violated Section 8(a)(1) of the Act by
informing an employee that she would jeopardize her employment if she spoke with other
employees about certain terms and conditions of employment, including vacations and Family
Medical Leave Act leave, and by informing her that she would be subject to disciplinary action if 20
she kept records concerning the vacation and leave taken by other employees.
4. In September and October 2005, Respondent violated Section 8(a)(1) of the Act
by telling employees that employees would not receive a pay increase because unfair labor
practice charges had been filed against Respondent, and that negotiations with the Union would 25
not progress to completion so long as the charges were pending.
5. On May 4, 2006, Respondent violated Section 8(a)(1) of the Act by telling
employees that employees who were so unhappy that they felt they needed to put the Respondent
out of business should find other employment.30
6. On October 13, 2005, Respondent violated Section 8(a)(1), (3) and (4) of the Act
by suspending employee Rollie Powell because of his Union activity and because he filed
charges with the Board and met with a Board investigator in connection with those charges.
35
7. On about July 12, 2006, Respondent violated Section 8(a)(1), (3) and (4) of the
Act by suspending employee Rollie Powell and transferring him to a lower–paying job because it
predicated the decision to take this action partly on its earlier unlawful suspension of Powell
described in paragraph 6, above.
40
8. Respondent did not violate the Act in any other manner alleged in the Complaint.
Remedy
To remedy the unfair labor practices described above, Respondent must rescind its 45
unlawful suspensions of its employee Rollie Powell and its transfer of Powell to a lower–paying
JD(ATL)–35–07
51
job, expunge all references to these disciplinary actions from his personnel file and other records,
and make him whole, with interest, for the losses he suffered because of these actions.
Respondent must also post at its facility, in the manner described below, the Notice to
Employees attached hereto as Appendix A.
5
ORDER
The Respondent, Mesker Door, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:10
(a) Instructing its employees not to discuss with other employees their terms
and conditions of employment, including matters related to vacation and leave, and
telling its employees that they will jeopardize their employment and be subject to
disciplinary action if they engage in such discussions or keep records of the vacation and 15
leave taken by other employees.
(b) Telling employees that any employee who is so unhappy that he thought
he needed to put Respondent out of business needed to find other employment.
20
(c) Suspending, transferring or otherwise disciplining any employee because
he engaged in union activities or because he filed unfair labor practice charges with the
National Labor Relations Board, provided information to a Board investigator, or gave
testimony under the Act.
25
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self–organization, to form, join, or assist any
labor organization, to bargain collectively through representatives of their own choosing,
or to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.30
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Rescind the suspensions it imposed on employee Rollie Powell on October 35
13, 2005 and July 12, 2006, rescind the July 12, 2006 transfer of Powell to a lower–
paying job, expunge all references to those actions from his personnel file and other
records, and make him whole, with interest, for all losses he suffered because of the
unlawful discrimination against him.
40
(b) Within 14 days after service by the Region, post at its facilities in
Huntsville, Alabama, copies of the attached notice marked “Appendix A.” 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 45
including all places where notices to employees are customarily posted. Reasonable
JD(ATL)–35–07
52
steps shall be taken by the Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent 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 5
any time since March 9, 2005.
(c) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Regional
Director attesting to the steps that the Respondent has taken to comply.10
Dated Washington, D.C., November 13, 2007.
15
______________________________
Keltner W. Locke
Administrative Law Judge
20
JD(ATL)–35–07
53
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD5
The National Labor Relations Board has found that we violated the Federal labor law and
has ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO10
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.15
WE WILL NOT interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT prohibit employees from discussing with other employees their terms and 20
conditions of employment, including those terms and conditions related to vacation time and
leave under the Family Medical and Leave Act.
WE WILL NOT tell employees that they jeopardize their employment or could be subject to
disciplinary action for discussing terms and conditions of employment with other employees or 25
for keeping track of the vacation and leave days which employees take.
WE WILL NOT tell employees that employees will not receive a pay increase because charges
had been filed with the National Labor Relations Board, and WE WILL NOT tell employees that
negotiations with a labor organization representing our employees will not proceed to completion 30
so long as unfair labor practice charges are pending.
WE WILL NOT tell employees that any employee who dislikes his job so much that he wishes
to put the company out of business should find work elsewhere, or otherwise imply that filing
charges with the National Labor Relations Board is incompatible with employment.35
WE WILL NOT suspend, transfer or otherwise discipline an employee because that employee
engaged in union or other protected activity, or because that employee filed an unfair labor
practice charge with the National Labor Relations Board, provided information to a Board
investigator, or gave testimony under the National Labor Relations Act.40
WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the suspensions we imposed on employee Rollie Powell on October 13, 2005 45
and July 12, 2006, and our July 12, 2006 transfer of Powell to a lower–paying job, will expunge
JD(ATL)–35–07
54
all references to those actions from our files, and will make Rollie Powell whole, with interest,
for all losses he suffered because of our unlawful discrimination against him.
5
10
15
20
25
MESKER DOOR, INC.___________
Respondent
Dated: _________________ By:_______________________________________________30
(Representative) (Title)
The National Labor Relations Board is an independent Federal Agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret–ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To 35
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to an agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
233 Peachtree Street, N.E., Harris Tower, Suite 1000, Atlanta, Georgia 30303–1531
(404) 331–2896, Hours: 8a.m. to 4:30 p.m.40
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED WITH ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING
THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (404) 331–2877.45