Mesker Door, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 2011

357 N.L.R.B. 591 (N.L.R.B. 2011)

MESKER DOOR, INC.
357 NLRB No. 59
591
Mesker Door, Inc. and United Steelworkers of Ameri-
ca, AFL–CIO–CLC and Rollie Powell and Cecil
Herren. Cases 10–CA–035863, 10–CA–035938,
10–CA–036270, 10–CA–036284, 10–CA–036363,
10–CA–036372, and 10–CA–036422
August 24, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On November 13, 2007, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Charging Party Union, Charging Party Rollie Pow-
ell, and Charging Party Cecil Herren each filed cross-
exceptions and a supporting brief. The Respondent filed
answering briefs to the exceptions and cross-exceptions.
The Charging Parties filed a joint reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions,1 cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
decision, and to adopt the judge’s recommended Order as
modified and set forth in full below.2
This case involves alleged unfair labor practices, the
majority of which were committed by the Respondent
during negotiations with the Union for an initial contract.
The complaint also alleges that after a year of negotia-
tions, the Respondent further violated the Act by with-

1 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by: (1) warning employee Janice Medlock in
March 2005 not to discuss medical leave and vacation issues with other
employees; (2) threatening employees, during contract negotiations in
September and October 2005, that there would be no pay increases
because of recently filed unfair labor practice charges against the Re-
spondent, and that negotiations would not progress while the charges
remained pending; and (3) implicitly threatening two employees, in a
speech on May 4, 2006, that they should find jobs elsewhere rather than
file charges and engage in other protected activity. There are also no
exceptions to the judge’s findings that the Respondent violated Sec.
8(a)(1), (3), and (4) by: (1) suspending employee Rollie Powell in
October 2005, and assessing him negative attendance points because he
filed charges against the Respondent and met with a Board agent inves-
tigating the charges; and (2) suspending Powell in July 2006, and de-
moting him to a lesser-paying job based in part on the October 2005
unlawful discipline.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), the Order shall require that backpay and other
monetary awards be paid with interest compounded on a daily basis.
Also, the Order will provide for the electronic posting of the notice in
accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons
stated in his dissenting opinion in J. Picini Flooring, Member Hayes
would not require electronic distribution of the notice.
drawing recognition from the Union and unilaterally im-
plementing changes in various terms and conditions of
employment of unit employees.
The judge found many of the alleged violations, and
many of those findings are not contested by the Re-
spondent. See footnote 1, above. Although one of those
uncontested violations was the plant manager’s threat
during a May 4, 2006 speech that two employees should
find jobs elsewhere, the judge dismissed allegations that
the speech contained additional threats that violated Sec-
tion 8(a)(1). In addition, the judge dismissed allegations
that the Respondent violated Section 8(a)(1) by disciplin-
ing employee Anthony Lyles; that it violated Section
8(a)(5) and (1) by withdrawing recognition from the Un-
ion and unilaterally implementing changes in terms and
conditions of employment; and that it violated Section
8(a)(4) and (1) by discharging employee Cecil Herren.
The General Counsel and the Charging Parties have
excepted to the dismissal of the additional 8(a)(1) threat
allegations regarding the plant manager’s speech, and to
the dismissal of the 8(a)(5) and (1) allegations. The
Charging Parties additionally except to the dismissal of
the 8(a)(1) allegation regarding Anthony Lyles and to the
dismissal of the 8(a)(4) and (1) allegations regarding
Cecil Herren. For the reasons discussed below, we re-
verse the judge and find that the Respondent committed
these additional violations, except with regard to Herren.3
I. THE DISCIPLINE OF ANTHONY LYLES
On June 8, 2005, the Respondent’s assistant manager,
James Smith, received a complaint from employee Ken-
neth Small that Lyles and employee Robert Bowser were
“talking about union business on company time.” Smith
informed Lyles and Bowser of the complaint, without
identifying Small. Smith instructed them that they
“shouldn’t be talking about the Union on company—
Mesker Door’s time” and that they were to confine their
union discussions to break- and dinner time. Suspecting
that Small had made the complaint, Lyles confronted
Small and threatened to physically harm him and damage
his truck. The next day, the Respondent suspended Lyles
for 1 day, without pay, “for making threatening remarks
to Kenneth Small’s person and vehicle.” The suspension
was later reduced to a written warning and loss of a day’s
pay.

3 We adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(1) and (4) by discharging Cecil Herren in June 2006. We find
that, even assuming that the General Counsel met his initial burden
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), the credited evidence
shows that plant manager, Roth, would have discharged Herren anyway
based on his demonstrated and repeated unwillingness to follow super-
visory instruction.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592
Applying Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), the judge dismissed the allegation that the Re-
spondent violated Section 8(a)(1) by disciplining Lyles
for discussing union matters with Bowser. The judge
found that the General Counsel had not met his initial
burden under Wright Line of proving that antiunion ani-
mus was a motivating factor for Lyles’ discipline, despite
finding that the Respondent knew that Lyles had engaged
in protected activity when discussing the Union with
Bowser, and that Lyles’ discipline was an adverse em-
ployment action. The judge found that the General
Counsel failed to establish that prohibiting Lyles from
discussing the Union during worktime constituted “anti-
union animus [that] was a substantial motivating factor in
the [Respondent’s] decision to suspend Lyles.” Never-
theless, the judge continued the Wright Line analysis,
explaining that, had the General Counsel satisfied his
initial burden, he would have found that the Respondent
failed to meet its rebuttal burden due to evidence of dis-
parate treatment.4
Contrary to the judge, we find that the General Coun-
sel established that Lyles’ 1-day suspension was unlaw-
ful. Wright Line requires the General Counsel to make
an initial showing that an employee’s protected conduct
was a motivating factor in an employer’s decision to take
adverse action against the employee. See Williamette
Industries, 341 NLRB 560, 562 (2004). The elements
commonly required to support a finding of discriminato-
ry motivation are union activity by the employee, em-
ployer knowledge of that activity, and antiunion animus
by the employer. Id.5 Proof of discriminatory motiva-
tion can be based on direct evidence or can be inferred
from circumstantial evidence based on the record as a
whole. See Fluor Daniel, Inc., 304 NLRB 970, 970
(1991). To support an inference of unlawful motivation,
the Board may look to, among other factors, disparate
treatment of the affected employee and the timing of the
discipline relative to the employee’s protected activity.
See Embassy Vacation Resorts, 340 NLRB 846, 848
(2003).
Here, as stated above and found by the judge, Lyles
engaged in protected activity when he discussed the Un-
ion with his coworker, and the Respondent was aware of
such activity. The Respondent demonstrated antiunion
animus through its violations of Section 8(a)(1), (3), (4),
and (5). In addition, contrary to the judge, we find that

4 The Respondent does not except to the judge’s finding that it en-
gaged in disparate treatment.
5 The judge incorrectly described the General Counsel’s initial bur-
den as including a fourth “nexus” element.
the General Counsel established that Lyles’ protected
activity was a motivating factor in his suspension.
We base our finding of unlawful motivation, in part,
on the evidence of disparate treatment cited by the judge.
The judge pointed to Small who, 1 month after the inci-
dent with Lyles, threatened to hit an employee “up the
side of the head” with a doorframe. Rather than suspend
Small for a day, as it did to Lyles, the Respondent merely
issued Small a written warning.6 We agree with the
judge that the “significantly harsher discipline” meted
out to Lyles constituted disparate treatment of two simi-
larly situated employees. That disparate treatment, along
with the timing of Lyles’ discipline, just 1 day after his
union discussion, fully supports a finding that Lyles’
discipline was unlawfully motivated by the Respondent’s
animus toward his union activity. See Sears, Roebuck &
Co., 337 NLRB 443, 445 (2002).
Turning to the Respondent’s Wright Line rebuttal bur-
den to establish that Lyles would have been disciplined
and docked a day’s pay even in the absence of his union
activity, the judge found, and we agree, that the Re-
spondent’s case is undermined by its disparate discipline
of Lyles.7 Accordingly, we conclude that Lyles was dis-
ciplined in violation of Section 8(a)(1).
II. THE PLANT MANAGER’S SPEECH ON MAY 4, 2006
The judge found that the Respondent’s plant manager,
George Roth, violated Section 8(a)(1) in a speech to em-
ployees on May 4, 2006, by implicitly threatening two
employees in telling them to either cease filing unfair
labor practice charges and engaging in other protected
activity, or seek employment elsewhere.8 However, the
judge dismissed complaint allegations that Roth made
additional unlawful threats during the speech. Viewing
the speech as a whole, we reverse the judge and find
those additional 8(a)(1) violations.
A. Background
In March 2005, the Union was certified as the collec-
tive-bargaining representative of a unit of production and
maintenance employees at the Respondent’s Huntsville,
Alabama manufacturing plant. The parties commenced
bargaining in April 2005, and met on 22 occasions over

6 After Small received his written warning, the Union requested that
Lyles’ 1-day suspension be similarly reduced to a written warning and
that Lyles receive backpay. The Respondent refused to pay Lyles
backpay, but it did change his suspension to a written warning.
7 The Respondent’s partial amelioration of its disparate treatment by
changing the suspension to a written warning, which occurred only
after the Union challenged the disparity and which still left Lyles short
a day’s pay, does not undermine our conclusion that the Respondent
acted unlawfully.
8 As noted above in fn. 1, the Respondent does not except to this
finding.
MESKER DOOR, INC. 593
the course of a year. They failed to reach agreement by
their last bargaining session on May 3, 2006.
The Respondent’s attorney, William Kaspers, was its
lead negotiator and admitted agent. The Union was rep-
resented by a four-person negotiating team that included
unit employee Rollie Powell, who filed several of the
unfair labor practice charges herein, some of which al-
leged conduct by Kaspers that the judge found unlawful.
Specifically, he found that Kaspers violated 8(a)(1) by
threatening the employee negotiators during bargaining
sessions in September and October 2005 that unit em-
ployees would not receive pay increases because charges
had been filed against the Respondent. The judge further
found that Kaspers violated Section 8(a)(1), (3), and (4)
by suspending Powell in October 2005, and assessing
him negative attendance points because he met with a
Board agent who was investigating the charges.9
Approximately 1 week before the last bargaining ses-
sion on May 3, 2006,10 Powell and fellow unit employee
Regan Long resigned from the Union’s negotiating team.
On May 4, Roth gave a speech to all unit employees.
The complaint alleges that the speech contains several
8(a)(1) threats. Roth’s May 4 speech, in its entirety, con-
sisted of the following:11

Good news! We hit the bonus numbers again last
month. The bonus checks for last month will be
about $100 per person, which equates to 62 [cents]
an hour.
I apologize for reading this letter, but it seems
like every time we turn around or say anything,
somebody files another charge about it with the
NLRB.
During the past 12 months, the Company gave 3
employees in the plant and warehouse 20 days off
from work so that they could negotiate in good faith
with the Company and try to get a collective bar-
gaining agreement between the Steelworkers Union
and the Company that made sense and was accepta-
ble to everyone.
Between you and me, it should not have taken 20
days to put together a collective bargaining agree-
ment. We had an agreement with the SheetMetal
[sic] Workers until the employees decided to get rid
of that union, and after the Sheetmetal [sic] Workers
were thrown out, we took many of the things that

9 As noted in fn. 1, the Respondent did not except to the judge’s
findings of violations committed by Kaspers.
10 All subsequent dates are in 2006, unless otherwise indicated.
11 The quoted text is taken from the Respondent’s script for the
speech, which is in the record. The judge found that Roth delivered the
speech substantially as it appears in writing and that any deviations
from the written text were inconsequential.
were in the union contract and put them into an em-
ployee handbook.
I understand that some changes were made to
certain parts of the handbook during the last couple
of years that upset a lot of people. However, 20
days of bargaining should have been more than
enough time to address those issues.
I’m told that the principal reason that the parties
spent 20 days bargaining and still don’t have an
agreement is that the employee members of the ne-
gotiating committee appear to have their own agen-
da. One has been more concerned about where he
parks than how the plant operates, and when it got to
economics, insisted that a truckdriver [sic] position
and rate of pay be included in the contract, even
though we no longer have a truck or a truckdriver’s
position. That’s nothing more than letting personal
self-interest predominate over what’s in the best in-
terests of all employees and the Company.
A year ago, they apparently told many of you
that if the union was voted in, they would negotiate a
written contract with certain guarantees. However,
when the contract negotiations finally get to [the]
point where it’s time to negotiate the terms that real-
ly matter—wages, profit-sharing, and other cost is-
sues that are generally referred to as “economic
items”—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 ap-
parently so that they can dedicate their time and ef-
forts to filing and pursuing allegations with the Na-
tional Labor Relations Board. That’s nuts. Since in-
terest in the Steelworkers surfaced a little more than
a year ago, they have either filed or supported the
filing of dozens of allegations with the National La-
bor 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 Company had done any-
thing 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 Company’s lawyer. Personal-
ly, 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 law-
yers at the bottom of the ocean? . . . A good start.”
With all of the charges and allegations that they
and others have filed with the NLRB, the Company
has had to have a lawyer present at all 20 of the bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594
gaining sessions to insure that we’re not inadvertent-
ly doing something that they might turn into yet an-
other NLRB charge.
Since the Steelworkers came in a year ago, the
Company has paid the Company’s lawyer over
$200,000 to protect the Company’s interests against
the charges that they and others have made or threat-
ened 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 Company’s lawyer rich, is
continue to foster an adversarial us-versus-them atti-
tude. Personally, I don’t really care whether we op-
erate under a union contract or not. We’ve operated
under a union contract and made money sometimes
and not made money other times, and we’ve operat-
ed 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 when we’re com-
peting against doors made in China, is the adversari-
al us-versus-them environment that they are attempt-
ing 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 sup-
ported it are solely to blame for the adversarial us-
versus-them environment. However, it all has to
stop, because it’s negative, counterproductive, and
very detrimental to the long term viability of this op-
eration and this Company.
I have been told that early on in the negotiations,
one man said that he didn’t care whether the Com-
pany went out of business, and another has very re-
cently said that if he 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 se-
riously consider putting this Company out of busi-
ness 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 neg-
ativity.
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 produc-
tive 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 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 refer-
ence. It is not in the best interest of you or the com-
pany to stay in a job you don’t like where you are
not happy. Life is too short.
B. The Judge’s Decision
The judge found that Roth’s description of two “un-
happy” employees was, in context, a reference to Powell
and Long, and that his statement that they should find
other jobs was an 8(a)(1) implied threat of discharge un-
der settled precedent holding that such statements sug-
gest that support for a union is incompatible with contin-
ued employment. Jupiter Medical Center Pavilion, 346
NLRB 650, 651 (2006); Paper Mart, 319 NLRB 9, 9
(1995) (finding unlawful employer statement that if em-
ployee was not happy, the employee should seek em-
ployment elsewhere). The judge found that the statement
also “implie[d] that engaging in protected activity—
filing charges with the Board—was incompatible with
continued employment,” and was thus unlawful because
it “interfered with an employee’s right to file charges
with the Board . . . [and] to engage in union activities,
such as serving on the Union’s bargaining committee.”12
The judge found, however, that Roth’s speech was not
unlawful in any other respect. He rejected the complaint
allegation that Roth threatened employees that filing
charges with the Board was futile, noting that Roth never
“state[d] explicitly that filing an unfair labor practice
charge was futile and, indeed, he did not use the word
‘futile’ at all.” The judge concluded instead that Roth’s
remarks about the effect of filing Board charges were
expressions of opinion protected by Section 8(c) of the
Act.
As to the complaint allegation that Roth additionally
threatened employees by stating that

[T]he Company has paid the Company’s lawyer over
$200,000 to protect the Company’s interests against the
charges . . . $200,000 that otherwise could have gone
into improving life here in the plant[,]

the judge acknowledged that “employees reasonably would
understand Roth to mean that the Respondent would have
used the $200,000 to improve their working conditions in
some unspecified way.” Nonetheless, the judge recom-
mended dismissing this 8(a)(1) allegation, noting that Roth
did not specifically state that the Respondent had taken

12 As stated in fn. 1, the Respondent did not except to this 8(a)(1)
finding.
MESKER DOOR, INC. 595
“money earmarked to improve working conditions and
spen[t] it instead on legal representation.”
The General Counsel excepted, and the Charging Par-
ties cross-excepted, to the judge’s dismissal of these
8(a)(1) allegations. In the context of the Respondent’s
speech as a whole, we find merit in their exceptions.
C. Analysis
The Board has long held that “an employer has a fun-
damental right, protected by [Section] 8(c) of the Act, to
communicate with its employees concerning its position
in collective-bargaining negotiations and the course of
those negotiations.” United Technologies Corp., 274
NLRB 1069, 1074 (1985) (footnotes omitted), enfd. sub
nom. NLRB v. Pratt & Whitney, 789 F.2d 129 (2d Cir.
1986). This includes informing employees of the status
of negotiations and the employer’s version of the causes
leading to their breakdown. Proctor & Gamble Mfg.,
160 NLRB 334, 340 (1966).
An employer’s right to communicate with employees
about these matters is not unlimited, however. Threats of
adverse consequences for filing charges with the Board
that are embedded in employer communications to em-
ployees transform 8(c) statements into 8(a)(1) violations.
M. K. Morse, 302 NLRB 924, 930 (1991); S. E. Nichols,
Inc., 284 NLRB 556, 558, 586 (1987). Where, as here,
certain statements in an employer’s speech are alleged as
unlawful, the Board analyzes the speech “as a whole” in
determining whether any individual statement violates
Section 8(a)(1). See Homer D. Bronson Co., 349 NLRB
512, 513 (2007); Stanadyne Automotive Corp., 345
NLRB 85, 87–90 (2005). Further, in accommodating
employer expression permitted by Section 8(c) with em-
ployees’ right to be free from threats prohibited by Sec-
tion 8(a)(1), we abide by the Supreme Court’s admoni-
tion that

any balancing of th[e]se rights must take into account
the economic dependence of the employees on their
employers, and the necessary tendency of the former,
because of that relationship, to pick up intended impli-
cations of the latter that might be more readily dis-
missed by a more disinterested ear.

NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). We
thus view employer statements “from the standpoint of em-
ployees over whom the employer has a measure of econom-
ic power.” Henry I. Siegel Co. v. NLRB, 417 F.2d 1206,
1214 (6th Cir. 1969). Evaluating Roth’s speech from this
perspective, we find merit to the General Counsel’s addi-
tional allegations.
Roth unlawfully threatened employees with economic
loss by stating that the multiple charges filed against the
Respondent had forced it to incur more than $200,000 in
legal fees that “could have gone into improving life here
in the plant.” The judge considered this statement in
isolation and found that it was too ambiguous to consti-
tute an unlawful threat to withhold economic benefits.
Our dissenting colleague takes a similarly isolated view
of Roth’s statement. However, viewed in the context of
Roth’s other statements about improving life at the plant,
we find that the threat is readily apparent.13
We rely particularly on Roth’s statements concerning
bonuses. Employers traditionally award bonuses to em-
ployees as a means of improving economic life at a
workplace, and the Respondent had a bonus award pro-
gram in place at the time of Roth’s speech. As noted,
Roth highlighted that program at the outset of his speech
by announcing that all employees would be receiving
$100 bonuses. He did not talk about bonuses again until
the end of his speech, when he cited much higher
amounts. Specifically, Roth told employees that if they
could “leave the us-versus-them attitude on the sideline
and be productive enough,” they could receive “monthly
bonus checks of over $300.”
Contrary to the judge and our dissenting colleague, we
find that Roth’s statement about the $200,000 in legal
fees that “could have gone into improving life here at the
plant” is not ambiguous when properly considered in
context with his statements about employee bonuses.
Both sets of statements centered on Roth’s criticism of
unfair labor practice charges that he believed were foster-
ing an “us-versus-them attitude” at the plant. There was
the $200,000 the Respondent spent to defend those
charges and Roth’s suggestion of improved bonuses of
over $300 absent those charges. We find that Roth’s
statement about the $200,000 reasonably conveyed the
message that an additional $200,000 would have been
allocated to fund bonuses of over $300, instead of $100,
had employees refrained from filing charges.14

13 Contrary to our colleague’s assertion in fn. 2 of his dissent, the
threat of economic loss violation that we find is fully in accord with
complaint par. 14, alleging that employees were told that charge filing
was “costing the Respondent money that would have otherwise benefit-
ted the employees.” The General Counsel argued to the judge that this
was an allegation of reduced bonuses because of the charge filing, and
the judge indicated several times in his analysis that he understood the
substance of this complaint as a “threat” allegation.
14 The coerciveness of Roth’s statement was heightened by his threat
elsewhere in the speech to discharge two employees for filing Board
charges, and by Kaspers’ dual role as the Respondent’s attorney and a
management spokesman, whose conduct was the subject of several of
the charges. Essentially, Roth told the employees that their charge-
filing activity not only took money out of their own pockets, it put that
money into the pockets of the very person whose wrongful actions they
opposed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
In Great Western Produce, 299 NLRB 1004 (1990),
the Board found a violation based on similar conduct.
There the respondent’s co-owner told two employees
who were named in one of several charges filed against
the company that “the charges were costing him money,
that only the lawyers were benefitting, and that neither
the Union nor he were gaining anything from the NLRB
proceedings.” 299 NLRB at 1023. The Board adopted
the judge’s finding that the

reference to money lost to the lawyers is essentially a
statement saying that the unionization process was
costing the employees money, for it would have gone
to them had they not begun the process . . . [and] . . .
violates Section 8(a)(1) for it attempts to teach the les-
son that unionization is self-defeating and thus a futili-
ty. Id.

As in Great Western, Roth’s statement—that the $200,000
spent defending against the charges could have been spent
on improving life at the plant—sent the message that filing
charges was a futile act that cost employees larger bonus-
es.15
Roth’s statement that “[i]t all has to stop” was unlaw-
ful as well. As the Supreme Court has explained, filing
charges with the Board is a vital employee right designed
to safeguard the procedure for protecting all other em-
ployee rights guaranteed by Section 7 and, therefore, “it
is unlawful for an employer to seek to restrain an em-
ployee in the exercise of his right to file charges.” NLRB
v. Scrivener, 405 U.S. 117, 121–122 (1972), quoting
Nash v. Florida Industrial Commission, 389 U.S. 235,
238 (1967). By telling employees that their charge filing
“has to stop,” Roth interfered with the exercise of their
statutory rights.16

15 We reject our colleague’s suggestion that Great Western may be
of limited precedential value because, in his view, it is unclear whether
exceptions were filed to the “money-lost-to-the-lawyers” unlawful
statement, and because the case has not been cited as supporting prece-
dent for this violation until today. There is no indication that excep-
tions were not filed to this violation found by the judge. Further, the
Board expressly relied on this violation (committed by co-owner Vic
Crispo) as evidence of animus in finding that employee Don Lowell
was unlawfully discharged. See 299 NLRB at 1007. Finally, the hold-
ing in a decision that has never been overruled or even questioned does
not cease to stand as precedent for not having been cited previously.
16 Our colleague contends that Roth’s statement that filing charges
“has to stop” was not encompassed within any complaint allegation,
and was not argued by the General Counsel as a violation in his brief on
exceptions. We disagree. The General Counsel argued in his excep-
tions brief (at 10) that Roth unlawfully stated in his speech that filing
charges “has to stop,” and the entirety of his speech, including this
statement and others, is reasonably encompassed within par. 13 of the
complaint alleging that employees were told that “filing charges . . .
was futile.” In any event, even were the statement not encompassed by
complaint par. 13, we would still find the violation under the two-part
In sum, we find that, when considered in all of its
parts, Roth’s speech to employees on May 4 violated
Section 8(a)(1).17
III. WITHDRAWAL OF RECOGNITION AND SUBSEQUENT
UNILATERAL CHANGES
On May 8, 4 days after Roth’s speech and 13 months
after the Union’s certification, the Respondent withdrew
recognition based on a petition signed by a majority of
unit employees between April 27 and May 8. The peti-
tion stated that the employees no longer wished to be
represented by the Union. Subsequent to the withdrawal
of recognition, the Respondent unilaterally changed em-
ployees’ working conditions by granting them a wage
increase, modifying the eligibility requirements for bo-
nuses, and altering discipline determinations under its
attendance policy.
The judge determined, under the test set forth in Mas-
ter Slack Corp., 271 NLRB 78 (1984), that there was no
causal relationship between the violations he found and
the employee petition. Accordingly, he found that the
Respondent did not violate Section 8(a)(5) by withdraw-
ing recognition from the Union, or by thereafter unilater-
ally implementing changes in working conditions. We
disagree. As explained below, we find that the petition
was tainted by the Respondent’s unlawful conduct and,
therefore, that the withdrawal of recognition and subse-
quent unilateral changes were also unlawful.
On expiration of the certification year, and in the ab-
sence of a collective-bargaining agreement, an incumbent
union is presumed to enjoy majority support among unit
employees it represents. An employer may rebut this
presumption and withdraw from the bargaining relation-
ship by introducing evidence, such as the petition relied
on by the Respondent, that the union no longer enjoys
majority support among the unit employees. Levitz Fur-
niture Co. of the Pacific, 333 NLRB 717, 725 (2001).
However, an employer may not rely on such evidence to
withdraw recognition where it has committed unfair la-
bor practices that have a tendency to cause the loss of
majority union support. Bunting Bearings Corp., 349
NLRB 1070, 1071–1072 (2007); NLRB v. Williams En-
terprises, 50 F.3d 1280, 1288 (4th Cir. 1995) (“company

test of Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990). Specifically, Roth’s statement was both
“closely connected” to par. 13 of the complaint and fully litigated. See,
e.g., Kenmor Electric Co., 355 NLRB 1038, 1043–1044 (2010); Park
‘N Fly, Inc., 349 NLRB 132, 133–134 (2007).
17 Children’s Center for Behavioral Development, 347 NLRB 35
(2006), on which the judge relied, does not support his finding that
Roth’s speech was lawful. Although the respondent’s memorandum in
that case blamed its “severe financial hardship” on various acts by the
union, it did not, as did Roth’s speech, threaten any employees that
they, in turn, would suffer adverse consequences.
MESKER DOOR, INC. 597
may not avoid the duty to bargain by a loss of majority
status caused by its own unfair labor practices”).
In Master Slack Corp., 271 NLRB at 84, the Board set
forth the following four-part test to determine whether
there is a causal connection between an employer’s un-
fair labor practices and the evidence indicating a loss of
majority union support:

(1) [t]he length of time between the unfair labor prac-
tices and the withdrawal of recognition; (2) the nature
of the illegal acts, including the possibility of their det-
rimental or lasting effect on employees; (3) any possi-
ble tendency to cause employee disaffection from the
union; and (4) the effect of the unlawful conduct on
employee morale, organizational activities, and mem-
bership in the union.

The unfair labor practices germane to this analysis in-
clude Roth’s unlawful May 4 speech, Kaspers’ threats
during contract negotiations in September and October
2005 that employees would not receive pay raises be-
cause of recently filed charges, and the suspension of
Rollie Powell in October 2005 and assessment of nega-
tive attendance points against him in response to his fil-
ing of charges and meeting with the Board agent investi-
gating the charges. Applying Master Slack, we find a
causal connection between these violations and the loss
of majority union support on which the Respondent re-
lied when withdrawing recognition.
With respect to timing, the judge found, and we agree,
that this causal factor was satisfied based on the with-
drawal of recognition just 4 days after Roth’s unlawful
May 4 speech in which Roth implicitly threatened to
discharge “unhappy employees,” led employees to be-
lieve that they would have received higher bonuses ab-
sent the Union, and by the fact that the employee who
solicited signatures for the petition “increased his efforts
to obtain signatures after the speech.” The timing factor
is further supported by the violations committed by
Kaspers in September and October 2005. Contrary to the
judge, we do not find the Kaspers violations too remote
in time from the withdrawal of recognition. They cen-
tered on the same theme as the conduct found unlawful
in the May 4 speech—that adverse consequences may
result from the filing of unfair labor practice charges.
Thus, like Roth’s May 4 implication that charge filing
was preventing employees from receiving higher bonus-
es, Kaspers threatened during September and October
2005 bargaining sessions that employees would not re-
ceive pay increases because of recently filed charges.
And, consistent with Roth’s May 4 warning that charge-
filing was incompatible with continued employment, the
Respondent unlawfully suspended Powell in October
2005 for filing the charges that Kaspers complained
about during the bargaining sessions, and because he met
with the Board agent investigating those charges. In the-
se circumstances, where Roth’s May 4 unlawful state-
ments essentially reprised Kaspers’ violations during
bargaining, we find that the 7-month passage of time did
not dissipate the earlier unlawful conduct’s causal effects
on the withdrawal of recognition. See, e.g., Beverly
Health & Rehabilitation Services, 346 NLRB 1319,
1328–1329 (2006) (employee poll showing loss of ma-
jority support was tainted by unlawful conduct that oc-
curred 6–8 months earlier); AT Systems West, Inc., 341
NLRB 57, 60 (2004) (passage of 9 months would not
reasonably dissipate effects of unlawful conduct).
With respect to the second Master Slack factor, the na-
ture of the Respondent’s illegal acts, we find that they
would tend to have a lasting negative effect on employ-
ees. Kaspers’ threat to eliminate employees’ pay raises
in retaliation for their filing charges, and Roth’s subse-
quent threat regarding the loss of significantly higher
bonus payments, were highly coercive and constituted an
assault on important Section 7 rights: the right to seek
improved economic employment terms through collec-
tive bargaining and the right to seek vindication of statu-
tory rights by filing charges with the Board. Indeed,
wage increases and higher bonuses involve “bread and
butter” issues that lead employees to seek union repre-
sentation, and threats to withhold them, “particularly
where the Union is bargaining for its first contract, can
have a lasting effect on employees.” Broadway
Volkswagen, 342 NLRB 1244, 1247 (2004).
We find that Kaspers’ and Roth’s threats against filing
charges with the Board would have an equally detri-
mental and lasting effect on employees. The Supreme
Court has emphasized that “Congress has made it clear
that it wishes all persons with information about [unfair
labor] practices to be completely free from coercion
against reporting them to the Board,” NLRB v. Scrivner,
405 U.S. at 121, quoting Nash v. Florida Industrial
Commission, 389 U.S. at 238. Consistent with this con-
cern, the Board has long “consider[ed] the unhampered
access to its processes as a valuable right to be given the
utmost protection.” Virginia-Carolina Freight Lines,
Inc., 155 NLRB 447, 452 (1965). By threatening to re-
taliate against employees for their filing of charges, the
Respondent interfered with and “chill[ed] the Section 7
rights of all the employees,” Metro Networks, 336 NLRB
63, 67 (2001), with the likely long-term effect of deter-
ring employees from filing future charges with the
Board.
The final two Master Slack factors focus on the effect
of the unlawful conduct on protected employee activities,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
including any possibility of causing employee disaffec-
tion from the Union. Bunting Bearing Corp., 349 NLRB
at 1072; Penn Tank Lines, Inc., 336 NLRB 1066, 1068
(2001). As stated above, the violations here occurred in
the midst of contract negotiations, and the May 4 viola-
tions occurred in the presence of all the unit employees,
including those on the Union’s negotiating team. Con-
sidered in this context, the threats by Kaspers and Roth
that filing charges during the bargaining process would
result in lost wage increases and lower bonus amounts
are the “type [of unlawful conduct] that reasonably tends
to have a negative effect on union membership and to
undermine the employees’ confidence in the effective-
ness of their selected collective-bargaining representa-
tive.” Penn Tank Lines, 336 NLRB at 1068; see also
RTP Co., 334 NLRB 466, 468–469 (2001). Moreover,
Roth’s May 4 speech appears to have directly affected
employees’ support for the Union. The disaffection peti-
tion had garnered 17 signatures in the week that it circu-
lated before the May 4 speech, but an additional 18 em-
ployees signed it during the 4 days after the speech, in-
cluding about four employees who had refused to sign it
before the speech.
In sum, applying the Master Slack factors to the instant
facts, we find a causal relationship between the Re-
spondent’s substantial unfair labor practices and the peti-
tion on which the Respondent relied to withdraw recog-
nition from the Union. Under these circumstances, the
Respondent could not lawfully challenge the Union’s
majority status on the basis of the petition that resulted
from its own unlawful conduct. Therefore, we conclude
that by withdrawing recognition from the Union, the Re-
spondent violated Section 8(a)(5) and (1) of the Act.
In addition, because the Respondent was not entitled to
withdraw recognition from the Union, it could not law-
fully change its employees’ terms and conditions of em-
ployment without providing the Union notice and bar-
gaining to impasse or agreement. By disregarding this
obligation and unilaterally implementing changes to the
employees’ wage rates, bonus eligibility requirements,
and attendance policy, the Respondent further violated
Section 8(a)(5) and (1). RTP Co., 334 NLRB at 481.
IV. AFFIRMATIVE BARGAINING ORDER
For the reasons set forth in Caterair International, 322
NLRB 64 (1996), we find that an affirmative bargaining
order is warranted in this case as a remedy for the Re-
spondent’s unlawful withdrawal of recognition. We ad-
here to the view that an affirmative bargaining order is
“the traditional, appropriate remedy for an 8(a)(5) refusal
to bargain with the lawful collective-bargaining repre-
sentative of an appropriate unit of employees.” Id. at 68.
In several cases however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir.
1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248
(D.C. Cir. 1994). In Vincent, supra, the court summa-
rized its requirement that an affirmative bargaining order
“must be justified by a reasoned analysis that includes an
explicit balancing of three considerations: (1) the em-
ployees’ Section 7 rights; (2) whether other purposes of
the Act override the rights of employees to choose their
bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the
Act.” Id. at 738. Although we respectfully disagree with
the court’s requirement for the reasons set forth in
Caterair, supra, we have examined the particular facts of
this case, as the court requires, and find that a balancing
of the three factors warrants an affirmative bargaining
order.
(A) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s withdrawal of recognition and refusal to con-
tinue bargaining with the Union. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation, because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violations. To the extent
such opposition may exist, moreover, it is at least partly
due, as found above, to the Respondent’s unfair labor
practices.
An affirmative bargaining order is also warranted be-
cause many of the Respondent’s unfair labor practices
occurred throughout the initial certification year. By this
conduct, the Respondent substantially undermined the
Union’s opportunity effectively to bargain, without un-
lawful interference, during the period when unions are
generally at their greatest strength. The parties had
reached agreement on many issues during collective bar-
gaining and were not at impasse at the time the Respond-
ent withdrew recognition. To the contrary, prior to the
May 8 withdrawal of recognition, the parties had sched-
uled another bargaining session for June 7. In these cir-
cumstances, the Union was never given a truly fair op-
portunity to reach an accord with the Respondent. It is
only by restoring the status quo ante and requiring the
Respondent to bargain with the Union for a reasonable
MESKER DOOR, INC. 599
period of time that employees will be able to assess for
themselves the Union’s effectiveness as a bargaining
representative.
(B) An affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. It removes the Re-
spondent’s incentive to delay bargaining in the hope of
further discouraging support for the Union. It also en-
sures that the Union will not be pressured by the Re-
spondent’s withdrawal of recognition to achieve immedi-
ate results at the bargaining table following the Board’s
resolution of its unfair labor practice charges and issu-
ance of a cease-and-desist order.
(C) Finally, a cease-and-desist order, alone, would be
inadequate to remedy the Respondent’s refusal to bargain
with the Union, because it would permit a decertification
petition to be filed before the Respondent has afforded
the employees a reasonable time to regroup and bargain
through their representative in an effort to reach an initial
collective-bargaining agreement. Such a result would be
particularly unfair in circumstances such as those here,
where the Respondent’s unfair labor practices are likely
to have a continuing effect, thereby tainting employee
disaffection from the Union arising during that period or
immediately thereafter. We find that these circumstances
outweigh the temporary impact the affirmative bargain-
ing order will have on the rights of employees who op-
pose continued union representation.
For all the foregoing reasons, we find that the affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for the judge’s Conclusion
of Law 5.
“5. On May 4, 2006, Respondent violated Section
8(a)(1) of the Act by, through its plant manager, George
Roth, interfering with, restraining, and coercing employ-
ees in the exercise of their Section 7 right to file unfair
labor practice charges, including by threatening them
with discharge by telling them that they should find other
employment if they are unhappy, telling them that they
could have received higher bonus payments if the Union
had not filed unfair labor practice charges, and threaten-
ing them that negotiations with the Union would not con-
tinue so long as the charges were pending.”
2. Substitute the following for the judge’s Conclusion
of Law 8.
“8. On June 9, 2005, Respondent violated Section
8(a)(1) by suspending Anthony Lyles, later reducing the
suspension to a written warning, and docking him a day’s
pay because he engaged in union discussions with a fel-
low employee.
9. On May 8, 2006, Respondent violated Section
8(a)(5) and (1) by withdrawing recognition from the Un-
ion and thereafter unilaterally implementing various
changes in the terms and conditions of employment of
unit employees.
10. Respondent did not violate the Act in any other
manner alleged in the complaint.”
AMENDED REMEDY
In addition to the remedies provided for in the judge’s
decision, and the affirmative bargaining order provided
for above, we shall order the Respondent to cease and
desist from its unlawful conduct, and to rescind its un-
lawful warning to Anthony Lyles, expunge any reference
to his warning and the prior 1-day suspension for the
same conduct in his personnel file, notify him in writing
that this has been done, and make him whole, with inter-
est, for any losses he suffered because of his unlawful
suspension and warning.
We shall further order the Respondent, if requested by
the Union, to rescind its unilateral wage increases, and
the changes made to its attendance system and bonus pay
practice, that were implemented after its unlawful with-
drawal of recognition from the Union. To the extent that
these changes have improved the terms and conditions of
employment of unit employees, the Order set forth below
shall not be construed as requiring the Respondent to
rescind such improvements, unless requested to do by the
Union.
ORDER
The Respondent, Mesker Door, Inc., Huntsville, Ala-
bama, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercing employees by instructing them not to dis-
cuss with other employees their terms and conditions of
employment, including matters related to vacation and
leave, and threatening employees that they will jeopard-
ize their employment and be subject to disciplinary ac-
tion if they engage in such discussions or keep records of
the vacation and leave taken by other employees.
(b) Interfering with, restraining, and coercing employ-
ees in the exercise of their Section 7 right to file unfair
labor practice charges, including by threatening them
with discharge by telling them that they should find other
employment if they are unhappy, telling them that they
could have received higher bonus payments if the Union
had not filed unfair labor practice charges, and threaten-
ing them that negotiations with the Union would not con-
tinue so long as the charges were pending.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
(c) Suspending, warning, transferring, docking the pay
of, or otherwise disciplining any employees because they
engaged in union activities or because they filed unfair
labor practice charges with the National Labor Relations
Board, provided information to a Board investigator, or
gave testimony under the Act.
(d) Withdrawing recognition from the Union and re-
fusing to bargain with it as the collective-bargaining rep-
resentative of the employees employed in the bargaining
unit described below in paragraph 2(e).
(e) Unilaterally changing wages, benefits, and other
terms and conditions of employment, without first notify-
ing and bargaining with the Union.
(f) In any like or related manner interfering with, re-
straining, 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 bargain-
ing or other mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the written warning and the prior 1-day
suspension it imposed on employee Anthony Lyles on
June 8, 2005; rescind the suspensions it imposed on Rol-
lie Powell on October 13, 2005 and July 12, 2006; and
rescind the July 12, 2006 transfer of Powell to a lower-
paying job.
(b) Within 14 days of the Board’s Order, remove from
its files any references to the written warning and prior 1-
day suspension issued to Lyles on June 8, 2005 and the
related loss of pay, the suspension issued to Powell on
October 13, 2005, and the suspension and transfer of
Powell to a lower paying job on July 12, 2006, and with-
in 3 days thereafter notify them in writing that this has
been done and that the unlawful actions will not be used
against them in any way.
(c) Make Lyles and Powell whole with interest, for the
loss of earnings and benefits that they may have suffered
as a result of the unlawful suspension and written warn-
ing issued to Lyles, and the suspensions of Powell and
his transfer to a lower paying job. Backpay shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest at the rate prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security records and reports, and all other records, in-
cluding an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of
backpay due under the terms of this order.
(e) Recognize and upon request, meet and bargain with
the Union as the exclusive bargaining representative of
the employees in the following certified unit:

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 em-
ployees, professional employees, guards, and supervi-
sors as defined by the Act.

(f) On the Union’s request, rescind any or all of the
unilaterally implemented changes made in the terms and
conditions of employment of employees since May 8,
2006.
(g) Within 14 days after service by the Region, post at
its facilities in Huntsville, Alabama, copies of the at-
tached notice marked “Appendix.”18 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 8,
2005.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Regional

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MESKER DOOR, INC. 601
Director, attesting to the steps that the Respondent has
taken to comply.

MEMBER HAYES, dissenting in part.
Reversing the judge, my colleagues find that Manager
Roth violated Section 8(a)(1) during a May 4, 2006
speech by threatening employees with economic loss and
informing them that filing charges with the Board was
futile. In so finding, my colleagues appear to
acknowledge that Roth’s speech statements considered
separately are too ambiguous to constitute violations of
the Act. They conclude, however, that when considered
in context of the rest of the speech, the violations are
“readily apparent.” In my view, although my colleagues
purport to view the speech “as a whole” to determine the
lawfulness of Roth’s remarks, they do so only to cherry
pick a few statements and read them together to support
finding the violations. As I do not agree with my col-
leagues’ reading of the speech or their conclusions that
Roth’s statements are unlawful, I do not join them in
finding the violations.1 As a result, I also disagree with
the majority’s application of the Master Slack test to
support finding two 8(a)(5) violations arising from the
Respondent’s withdrawal of recognition. Consistent
with the judge, I would find that insufficient evidence
exists to conclude that the decertification petition relied
on by the Respondent in withdrawing recognition was
tainted by the Respondent’s conduct. Accordingly, I
dissent.
My colleagues find that Roth threatened employees
with economic loss by informing them that the $200,000
it had spent on legal fees to respond to unfair labor prac-
tice charges could have been used to improve life at the
plant.2 In doing so, the majority homes in on Roth’s
comments about employee bonuses and, together with
his statement about the alternative use of the $200,000
spent on legal fees, concludes that Roth “reasonably

1 I join my colleagues in adopting the judge’s finding that the Re-
spondent violated Sec. 8(a)(1) by disciplining employee Lyles and in
adopting the judge’s dismissal of the allegation that the Respondent
violated Sec. 8(a)(4) by discharging employee Herren. In addition, in
the absence of exceptions, I join my colleagues in adopting the judge’s
finding that Roth violated Sec. 8(a)(1) during the May 4 speech by
informing employees that union activity was incompatible with contin-
ued employment.
2 I note that the complaint alleges, and the General Counsel (GC) ar-
gues in his exceptions, that the Respondent interfered with the employ-
ees’ Sec. 7 rights in violation of Sec. 8(a)(1) by informing them that
filing charges with the Board cost the Respondent money that otherwise
would have benefitted the employees. In reversing the judge, my col-
leagues characterize the violation found as an unlawful threat of eco-
nomic loss. Thus, while my colleagues state that they find the violation
alleged by the GC, they actually find a somewhat different violation.
Regardless of the characterization, I would find that the Respondent did
not act in an unlawful manner.
conveyed the message that an additional $200,000 would
have been allocated to fund bonuses of over $300, in-
stead of $100, had the employees refrained from filing
charges.” Contrary to the majority, I do not view Roth’s
references to employee bonuses as being so neatly linked
to his statement about the $200,000 spent on legal fees to
warrant finding a violation.
From my review of the speech as a whole, Roth’s ref-
erences to employee bonuses were not made in connec-
tion with one another, much less with his statement about
the alternative use of the $200,000 spent on legal fees.
In this regard, Roth began his speech by informing the
employees that they had “hit the bonus numbers” and
would each receive a $100 bonus. In the middle of his
speech, he commented that the Respondent had spent
$200,000 to respond to unfair labor practices, money that
he believed could have gone into “improving life here at
the plant.” And, at the end of his speech, he opined that
if everyone worked together they could be “productive
enough to share monthly bonus checks of over $300.”
These statements were separated by the rest of Roth’s
speech, which spans over five written pages in the record
and covers a variety of other topics, such as the Re-
spondent’s working relationship with the prior union, the
status of collective bargaining with the current union,
and company morale. Roth even shared a William
Shakespeare quote with the employees and spent some
time telling a lawyer joke.
Given the disconnected nature of the statements relied
on by the majority to find the violation, it is difficult for
me to conclude that the employees would reasonably
understand Roth’s statement about the $200,000 to be
linked to employee bonuses. At no point did Roth state,
or even indicate, that the employees had lost or would
lose a bonus because the Respondent had spent that
money on legal representation. Indeed, Roth referenced
the money spent on attorneys fees in only one portion of
his speech and did not elaborate at all on his statement
that the money could have been used on “improving life
here at the plant.”3 As such, I agree with the judge that
Roth’s statement is best classified as a mere statement of
opinion, protected by Section 8(c) of the Act, and not, as

3 This case is thus distinguishable from other cases where an em-
ployer has been found to have violated Sec. 8(a)(1) by specifically
linking money spent by the employer to defend against unfair labor
practice charges with economic benefits or consequences to employees.
See, for example, American Model & Pattern, 277 NLRB 176 (1985)
(respondent violated Sec. 8(a)(1) by telling employees that ULP charg-
es that cost the company money were “going to cost the employees as
well”); and Wayne J. Griffin Electric, 335 NLRB 1362 (2001) (regard-
ing money spent by the respondent to defend against ULP charges,
manager violated Sec. 8(a)(1) by asking employees “wouldn’t you
rather have that money in your profit sharing?”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602
my colleagues find, a threat in violation of Section
8(a)(1).
Regarding the futility allegation, I believe the majori-
ty’s finding of a violation suffers from a similar deficien-
cy. Again pointing to Roth’s comments about money the
Respondent had spent on attorneys fees, the majority
concludes the such a statement would send a message to
the employees that filing charges was a futile act that
cost the employees larger bonuses. But, as the judge
found, nothing in Roth’s statements would convey to the
employees that it would be futile for them to file charges.
Roth did not tell the employees not to file charges, in-
form them that doing so would have no effect, indicate
the Respondent’s willingness to defy any remedies ulti-
mately ordered by the Board related to the charges, or
otherwise attempt to chill the employees’ Section 7 right
to file charges. Instead, Roth truthfully informed the
employees of the fact that the Respondent had spent a
considerable amount of money responding to charges
and expressed his opinion that the money could have
been spent on other things. I thus agree with the judge
that the link between Roth’s statements and the finding
of a futility violation here is “tenuous.”4 Accordingly, I
disagree with the majority’s decision to find the viola-
tion.5

4 In finding the futility violation my colleagues rely on Great West-
ern Produce, 299 NLRB 1004, 1023 (1990), where the judge made an
incidental finding that money lost to lawyers is essentially costing
employees money that would have gone to them, thereby teaching them
a lesson that unionization is a futility. It is not clear that this finding
was contested by exceptions. In any event, the case has not been cited
for this proposition until today. I disagree both with my colleagues and
the judge in Great Western that statements about money paid for legal
expenses in Board proceedings invariably convey an implied threat of
futility.
In addition, the cases cited by the GC in his exceptions brief to sup-
port finding a violation do not require such a result here. In those cas-
es, the employers clearly communicated to employees the futility of
filing charges with the Board. See S. E. Nichols, Inc., 284 NLRB 556
(1987) (after respondent’s president read the text of a pending Board
complaint to employees, the president informed the employees that
there was “no way in hell” that the discriminatees involved in the com-
plaint “would ever come back and work in his store”); and 7UP Bot-
tling Co., 261 NLRB 894 (1982) (manager informed employee that it
had cost the respondent $1000 to visit the Board’s offices to discuss a
charge filed by the employee and told the employee to “make all the
allegations you want, nothing is going to change”).
5 My colleagues also find that Roth interfered with the employees’
exercise of their Sec. 7 rights, in violation of the Act, by telling the
employees that their charge filing “has to stop.” As an initial matter,
this violation is not alleged in the complaint, the judge did not address
such an allegation in his decision, and the GC makes no argument in
support of finding the violation in his exceptions brief. Thus, it is diffi-
cult to conclude if the matter was fully and fairly litigated consistent
with Pergament United Sales, 296 NLRB 333 (1989), enfd. 920 F.2d
130 (2d Cir. 1990). Even assuming the allegation is properly before the
Board, I would not find the violation. In context, I do not read Roth’s
As I would not find the above violations arising from
Roth’s May 4 speech, I do not join my colleagues in their
application of the Master Slack test to find that the decer-
tification petition was tainted by the Respondent’s un-
lawful conduct. In my view, most of the unfair labor
practices relied on by the majority are too remote in time
from the withdrawal of recognition to support a conclu-
sion that they tainted the decertification petition. And
although there is one unexcepted-to violation arising
from the May 4 speech, I would not find this single vio-
lation sufficient to taint the petition or to revive the older
violations for taint purposes, as the majority appears to
do. Instead, I agree with the judge that, under the Master
Slack framework, there is insufficient evidence of a caus-
al relationship between the unfair labor practices and
employee disaffection to find that the petition was taint-
ed.
For the foregoing reasons, in agreement with the
judge, I would dismiss the 8(a)(1) allegations arising
from Roth’s speech and the 8(a)(5) allegations related to
the withdrawal of recognition. And I dissent from my
colleagues’ conclusions to the contrary.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT interfere with, restrain, or coerce you in
the exercise of these rights, guaranteed to you by Section
7 of the National Labor Relations Act.
WE WILL NOT prohibit you from discussing with other
employees your terms and 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 you that you jeopardize your em-
ployment or could be subject to disciplinary action for

statement to convey an attempt by the Respondent to restrain employ-
ees in the exercise of their statutory rights to file charges.
MESKER DOOR, INC. 603
discussing terms and conditions of employment with
other employees or for keeping track of the vacation and
leave days that employees take.
WE WILL NOT interfere with, restrain, or coerce you in
exercising your right to file unfair labor practice charges
with the National Labor Relations Board, including by
threatening you with discharge by telling you that you
should find other employment if you are unhappy or tell-
ing you that you could have received higher bonus pay-
ments if charges had not been filed, and WE WILL NOT tell
you that if you file unfair labor practices with the Na-
tional Labor Relations Board, negotiations with a labor
organization representing you will not continue.
WE WILL NOT warn, suspend, or transfer you, or dock
your pay or otherwise discipline you because you en-
gaged in union or other protected activity, or because you
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.
WE WILL NOT withdraw recognition from the Union
and refuse to bargain with it in the appropriate unit.
WE WILL NOT change your wages, benefits, or other
terms and conditions of employment, without first notify-
ing and bargaining with the Union.
WE WILL NOT, in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.
WE WILL rescind the written warning and prior 1-day
suspension given to Anthony Lyles on June 8, 2005; the
suspensions imposed on Rollie Powell on October 13,
2005 and July 12, 2006; and our transfer of Powell to a
lower-paying job on July 12, 2006; and WE WILL expunge
all references to those actions from our files and notify
them in writing that this has been done.
WE WILL make whole Anthony Lyles and Rollie Pow-
ell for the loss of earnings and benefits they suffered as a
result of the written warning and prior 1-day suspension
given to Lyles and the suspensions imposed on Powell
and transfer to lower paying job.
WE WILL, on request, bargain with the Union as the ex-
clusive bargaining representative of employees in the
following bargaining unit:

All full-time and regular part-time production and
maintenance employees employed by us at our Hunts-
ville, Alabama facility, including all welding employ-
ees, quality assurance employees, shipping and receiv-
ing employees and warehouse employees, but exclud-
ing all office clerical employees, technical employees,
professional employees, guards, and supervisors as de-
fined by the Act.

WE WILL, upon the Union’s request, rescind any or all
of the unilaterally implemented changes that we made in
the terms and conditions of employment of employees
since May 8, 2006.

MESKER DOOR, INC.

John D. Doyle Jr., Esq., for the General Counsel.
William F. Kaspers, Esq., for the Respondent.
Mr. Morris Anderson, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. In this
case, the General Counsel alleges that Respondent violated
Section 8(a)(5) of the National Labor Relations Act (the Act)
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 relationship between
the unfair labor practices and the Union’s loss of majority sta-
tus. Therefore, I conclude that Respondent lawfully withdrew
recognition.
Procedural History
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
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.
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).
On December 15, 2005, the Regional Director issued an or-
der 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 schedul-
ing this matter for hearing on February 6, 2006. However, by
Order dated January 26, 2006, the Regional Director postponed
the hearing indefinitely.
On May 16, 2006, the Union filed a charge against Respond-
ent in Case 10–CA–36270.
On May 26, 2006, Charging Party Powell filed a charge
against Respondent in Case 10–CA–36284.
On July 14, 2006, Cecil Herren, an individual (Charging Par-
ty Herren), filed a charge against Respondent in Case 10–CA–
36363. Herren amended this charge on September 15, 2006.
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 Re-
spondent in Case 10–CA–36422.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604
On September 21, 2006, the Regional Director issued an Or-
der 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 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 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.
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 and on 8 through 12, 2007.
On February 20, 2007, counsel presented oral argument.
I. ADMITTED ALLEGATIONS
Based on admissions in Respondent’s answer and on stipula-
tions received during the 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 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 (i).
Based on Respondent’s admission, I find that at all material
times Respondent, an 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 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 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, Re-
spondent has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Moreover, based on Respondent’s answer and a stipulation
during the hearing, I find that the following persons were, dur-
ing the material time period, Respondent’s supervisors and
agents within the meaning of Section 2(11) and (13) of the Act,
respectively: Steven C. Frates, vice president; Michael Torres,
both in his present capacity of marketing and customer relations
manager and in his former capacity as plant manager; George
Roth, plant manager; James Smith, accounting manager; Karen
Temple, assistant to the comptroller; and Raymond Duncan,
frame line supervisor.
Although Respondent’s answer denied the legal conclusion
that the Union was a labor organization, it further stated that
“Respondent is willing to admit all of the facts necessary to
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 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 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 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.
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 em-
ployees constituted an appropriate unit for collective bargaining
within the meaning of Section 9(b) of the Act:

All full-time and regular part-time production and mainte-
nance employees employed by the Employer at its Huntsville,
Alabama facility, including all welding employees, quality as-
surance employees, shipping and receiving employees and
warehouse employees, but excluding all office clerical em-
ployees, technical employees, professional employees,
guards, and supervisors as defined by the Act.

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 contested issue which will be examined later in this decision.
Respondent has admitted, and I find, that it withdrew recog-
nition from the Union on May 8, 2006, as alleged in complaint
paragraph 20.
Based upon Respondent’s admission, I find that on June 8,
2005, it suspended employee Anthony Lyles for 1 day, as al-
leged in complaint paragraph 16(a). Also based upon Re-
spondent’s admission, I find that on October 13, 2005, it im-
posed on employee Rollie Powell a 1-day suspension, as al-
leged in complaint paragraph 16(c).
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).
MESKER DOOR, INC. 605
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, 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).
Respondent objected that the allegations in complaint para-
graph 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.
Respondent similarly objected to the relevance of the allega-
tions raised by complaint paragraph 22, but admitted them.
Accordingly, I find that on or about June 5, 2006, the Respond-
ent 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 which em-
ployees “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, Re-
spondent implemented a change to the rules pursuant to which
it calculated and determined whether to pay incentive 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 de-
pends upon productivity and profitability.” Based on this ad-
mission, 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 than in July 2006.
Complaint paragraph 25 alleges that Respondent unilaterally
engaged in the acts and conduct described in complaint para-
graphs 21 through 23, inclusive, without prior notice to the
Union and without having afforded the Union an opportunity to
negotiate and bargain as the exclusive representative of Re-
spondent’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 law-
fully 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 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 op-
portunity to negotiate and bargain as the exclusive representa-
tive 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 system, and modifi-
cation 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 faith
with the Union depends on whether it acted lawfully when it
withdrew recognition from the Union. That issue will be dis-
cussed later in this decision.
II. DISPUTED ISSUES
A. The 8(a)(1) Allegations
1. Complaint paragraphs 10 and 11
Complaint paragraph 10 alleges that on about March 9, 2005,
Respondent, by Michael Torres, at Respondent’s facility, reit-
erated an overly broad verbal admonition to employees not to
discuss the Respondent’s handling of requests for leave under
the Family and Medical Leave 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 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 em-
ployment. Complaint paragraph 26 alleges that this conduct
violated Section 8(a)(1) of the Act. Respondent has denied
both allegations.
The conduct described in complaint paragraphs 10 and 11 al-
legedly took place the day before the Board conducted the se-
cret 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.
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.”
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 pre-
sent during this discussion, neither McFall nor Medlock testi-
fied. Torres gave the only testimony concerning this matter,
but the record also includes a note describing the conversation.
(Procedurally, this exhibit came into the record in a some-
what 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 re-
ceived it without objection. It already was in evidence when,
after the General Counsel rested, Respondent moved to dismiss
the allegations raised by complaint paragraphs 10 and 11 for
want of proof. Based in part on this evidence, I denied the
motion.)
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606
missed. Pat was upset about it and brought it to Karen
Temple’s 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 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 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 rec-
ords on them. If it happened again she would be disci-
plined and receive up to a 1-day suspension.

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.
To support its argument that Torres’ comments to Medlock
violated Section 8(a)(1) of the Act, the Government cites Tria-
na Industries, 245 NLRB 1258 (1979); Scientific-Atlanta, Inc.,
278 NLRB 622 (1986); and Automatic Screw Products Co., 306
NLRB 1072 (1992). In these cases, the Board found that the
respondents had committed unfair labor practices by prohibit-
ing their employees from discussing their wages. In Triana
Industries, the Board stated:

Section 7, which grants employees the unfettered right to en-
gage in concerted activities for mutual aid and protection, en-
compasses 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 direct-
ing employees not to engage in such activity (and thus imply-
ing that the Employer does not look with favor upon employ-
ees who engage in such activity) clearly tends to inhibit em-
ployees 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
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 rights, the Board does not con-
sider 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
NLRB 52 (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 un-
comfortable by Medlock’s unexplained watchfulness. Follow-
ing 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 Med-
lock might have with other employees concerning the way Re-
spondent administered its leave policy.
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.
Therefore, if establishing an 8(a)(1) violation required evi-
dence of unlawful intent, I would recommend dismissal of the-
se 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
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 con-
siders the statement in its total context. When a speaker’s un-
lawful intent reasonably would be obvious to the listener, the
presence of such animus certainly affects the message commu-
nicated 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’ mo-
tive was so obvious that a listener reasonably would not under-
stand his words to prohibit discussion protected by Section 7.
Whatever force such an argument might have in other cir-
cumstances, 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 discuss-
ing certain terms and conditions of employment. An employee
reasonably would conclude that any discussion of these work-
ing 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 find
that Respondent violated Section 8(a)(1) of the Act by the con-
duct 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 Manager Torres
first cautioned Medlock before March 9, and that this earlier
discussion took 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, Re-
spondent appears to recognize that these allegations are, in fact,
timely and it appears that Respondent is not raising a 10(b)
defense with respect to them. However, even if Respondent
MESKER DOOR, INC. 607
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.
The Union filed the first charge in this proceeding on Sep-
tember 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 re-
spect to its handling of absences by unit employees, a term
and condition of employment.

Notwithstanding that the charge alleges that the incident oc-
curred “in about April 2005,” this language clearly describes
Torres’ warning to Medlock on March 9, 2005. Alleging an
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 “not to pursue any allegations
predating the [March 10, 2005] election except [the allegations]
involving the termination of Nathan Vereen.” However, Re-
spondent 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 withdraw, the charge in Case 10–
CA–35863. The record also does not establish that the Charg-
ing Party ever amended this charge to delete the language quot-
ed above. Accordingly, it remained within the General Coun-
sel’s discretion to proceed on this allegation. In these circum-
stances, I reject Respondent’s argument and adhere to my rec-
ommendation that the Board find that Respondent violated
Section 8(a)(1) of the Act by the conduct alleged in complaint
paragraphs 10 and 11.
2. Complaint paragraph 12
Complaint paragraph 12 alleges that on occasions in mid-
September and mid-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 Act. Complaint
paragraph 26 alleges that this conduct violated Section 8(a)(1)
of the Act. Respondent has denied these allegations.
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 nego-
tiations with the Union and the statements he made during the
course of the bargaining are attributable to Respondent. Credi-
ble evidence clearly shows that Kaspers possessed both actual
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 Rep-
resentative Morris Anderson and three employees, Rollie Pow-
ell, Anthony Johnson, and Regan Long. As noted above, Wil-
liam Kaspers served as Respondent’s chief negotiator. Michael
Torres, who held the positions of plant manager and, subse-
quently, 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
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 sin-
cere and honest witness. At times during his testimony, Powell
appeared to become indignant, but I discerned no artifice or
lack of sincerity. Additionally, based upon my observations, I
conclude that the third employee member of the Union’s nego-
tiating committee, Anthony Johnson, also brought to the wit-
ness stand an earnest intent to testify accurately. At times,
Johnson’s memory of events lacked detail, but the want of spe-
cifics did not lead to confabulation. In sum, I conclude that the
testimony of Long, Powell, and Johnson concerning the negoti-
ating sessions should be credited, and I rely on 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 is-
sues raised by the charges, rather than taking those issues to the
Board.
Manager Torres testified that at “[p]retty much every bar-
gaining 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 remembered “comments
being made” during the September and October 2005 bargain-
ing 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 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 employ-
ee members of the Union’s bargaining committee provide a
consistent picture.
Long testified that during a bargaining session in mid-
September 2005, Kaspers said, “I hope you all know for keep-
ing 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 para-
phrased some of Kaspers’ words does not diminish his credibil-
ity. Based on Long’s testimony, which I credit, 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, Rol-
lie Powell, testified that during the mid-September 2005 bar-
gaining session, Kaspers said that “you people” would not get a
35 cents per hour pay raise “because of these charges. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608
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.
Further, I find that Kaspers told them that they would have to
drop the charges to move the negotiations along. The com-
plaint does not allege this statement, linking progress in negoti-
ations 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
Kaspers’ words about the unfair labor practice charges reason-
ably would convey to employees.
Kaspers’ words about “moving the negotiations along” ac-
quire additional significance in light of the parties’ bargaining
framework. The parties had deferred the negotiation of eco-
nomic terms until after reaching agreement on noneconomic
items. Thus, a statement that the Charging Parties would have
to drop their unfair labor practice charges to “move these nego-
tiations along” implies that the Union might not even reach the
point of discussing a pay raise so long as the unfair labor prac-
tice charges remained pending.
The third employee member of the Union’s negotiating
committee, Anthony Johnson, 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, “[Y]ou’re talking yourself out of raises, you
know.”
Union Representative Morris Anderson testified that Kaspers
discussed the filing of charges, but Anderson could not recall
clearly what Kaspers said. “I believe,” Anderson testified,
“[H]e 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 Ander-
son’s attention to the September 2005 bargaining session, An-
derson testified that he believed Kaspers had raised the subject
of unfair labor practice charges at this meeting: “I think 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 Johnson. To summarize, based on
the credited testimony of these three employee witnesses, I find
that during the September 2005 bargaining session, Kaspers
said that because of the unfair labor practice charges, the em-
ployees 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.”
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 un-
fair labor practice charges 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.
However, even assuming that Respondent articulated this
reasoning as clearly at the bargaining table as it did in this pro-
ceeding, 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 mes-
sage those words would communicate to employees. Then, I
must weigh what effect that message reasonably would have on
employees’ willingness to exercise their statutory rights, in-
cluding, 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.
However, the threat carries the additional connotation that the
speaker, through some action, is going to bring about the pre-
dicted 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 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 demon-
strably probable consequence beyond the Respondent’s control.
Obviously, Respondent does not have an unlimited amount
of money. No one does. But 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, “[W]e
have ‘x’ dollars to spend and 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.
Similarly, the record does not demonstrate that filing the un-
fair 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 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 increase,
constitute a threat of adverse consequences for engaging in
MESKER DOOR, INC. 609
protected activity. See Chinese Daily News, 346 NLRB 906
(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 find.
3. Complaint paragraphs 13 and 14
Complaint paragraphs 13, 14, and 15 concern a speech which
Plant Manager George Roth made to employees at a meeting on
May 4, 2006. Complaint paragraph 26 alleges that the state-
ments described in those three complaint paragraphs violated
Section 8(a)(1) of the Act. Respondent denies all of these alle-
gations.
More specifically, complaint paragraph 13 alleges that on or
about May 4, 2006, the Respondent, by George Roth, at Re-
spondent’s facility, interfered with employees’ Section 7 rights
by telling them that filing charges with the 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 would had [sic] otherwise benefited
the employees.”
Complaint paragraph 15 alleges that on this date, Respond-
ent, 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 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 Roth delivered this speech
substantially as it appears in written form, and that any devia-
tions from the text were inconsequential.
The first part of Roth’s speech concerned the collective bar-
gaining between Respondent and the Union. Roth told the
employees that 20 negotiating sessions should have been suffi-
cient to reach a contract and he blamed some employees on the
Union’s bargaining committee. According to Roth, who did
not identify the employees by name, they had allowed “person-
al 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 re-
signing from the bargaining 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 work-
force knew that the resigning committee members were Regan
Long and Rollie Powell.
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:

[W]hen the contract negotiations finally got to [the]
point where it’s time to negotiate the terms that really mat-
ter . . . 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 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 Au-
gust—not because the 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 con-
victed 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 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 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 Com-
pany has paid the Company’s 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 Company’s lawyer rich, is continue to
foster an adversarial us—versus—them attitude. Personal-
ly, I don’t really care whether we operate under a union
contract or not. We’ve operated under a union contract
and made money sometimes and not made money other
times, and we’ve operated without a union and made mon-
ey sometimes and not made money other times.
What doesn’t work, however, and never will, particu-
larly in competitive times 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 indus-
trial setting. I’m not saying that the union or the employ-
ees who supported it are solely to blame for the adversarial
us—versus—them environment. However, it all has to
stop, because it’s negative, counterproductive, and very
detrimental to the long term viability of this operation and
this Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610
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 didn’t get his way, he’d put the Company out of busi-
ness. Well, too many of us have worked too long and too
hard for anyone to seriously consider putting this Compa-
ny out of business or even talking about it. If that’s where
they are today, then they should find another job else-
where and stop infecting the rest of us with all of their
negativity.
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 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.

In addition to the text quoted above, Roth’s speech did make
one additional, passing reference to unfair labor practice charg-
es. 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.
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.
Roth did tell the employees that since the arrival of the Un-
ion, “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
Regan Long and Rollie Powell, two employees serving on the
Union’s negotiating team.
Roth’s statement—that “they” filed or supported the filing of
“allegations” with the Board—does not communicate a mes-
sage 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 employees that
Respondent had settled “several of the charges” but “not be-
cause the Company had done anything wrong.” Rather, Re-
spondent 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 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 em-
ployee 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 “nui-
sance value,” reasonably would increase the employee’s expec-
tation 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, since a person filing a charge
could not “win,” filing a charge was “futile.”
Such reasoning requires drawing an inference from an impli-
cation and is thus quite tenuous. Moreover, Section 8(c) pro-
tects 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 on whether the particular opin-
ion 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 that filing charges with the Board
was futile. For the reasons discussed above, applying an objec-
tive 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 para-
graph 13.
Complaint paragraph 14 alleges, in effect, that Roth inter-
fered 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 ex-
ceeding $200,000 to defend against the unfair labor practice
charges and also had paid an 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. Howev-
er, complaint paragraph 14 further alleges that Roth said that
the unfair labor practice charges were costing money which
otherwise would have benefited the employees.
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 im-
proving life here in the plant.” However, employees 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 connec-
tion with complaint paragraph 12. However, the statements
which Roth made to employees on May 4, 2006, differ signifi-
MESKER DOOR, INC. 611
cantly from the remarks of Respondent’s attorney at the Sep-
tember 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 commu-
nicated that negotiations would not progress unless the charges
were withdrawn. From Kaspers’ statements and the total con-
text, employees reasonably would conclude that the detriment
he predicted would not happen automatically as a natural con-
sequence 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.
When Roth told employees that Respondent had paid a law-
yer $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
recipient of an unfair labor practice charge and, likewise, such
payments did not turn on events beyond the Respondent’s con-
trol.
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 attor-
ney. 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 Respondent paying a lawyer money
which could better have been spent for other things. Express-
ing 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 burden of proving that a particular state-
ment carries a threat of reprisal or force, or a promise of bene-
fit, 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 35 (2006), the Board considered a respondent’s memo
to its employees with content not unlike Roth’s speech. 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 opin-
ion about the Union and does not violate the Act.” 347 NLRB
at 35. Similarly, I conclude that Roth’s speech constituted a
lawful expression of opinion.
As the Board held in Children’s Center for Behavioral De-
velopment, supra, “an employer may criticize, disparage or
denigrate a union without running afoul of Section 8(a)(1) pro-
vided that its expression of opinion does not threaten employ-
ees or otherwise interfere with the Section 7 rights of employ-
ees.” 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 complaint paragraphs 13 and 14.
Therefore, I recommend that the Board dismiss these allega-
tions. 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 allega-
tions.
4. Complaint paragraph 15
Complaint paragraph 15 raises one other allegation related to
Roth’s May 4, 2006 speech. This paragraph alleges that Re-
spondent interfered with employees’ Section 7 rights by “invit-
ing and requesting employees to quit their employment because
they had engaged in Union and 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 con-
duct which forms the basis for complaint paragraph 15.
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:

[A]nyone who’s so unhappy here that you think you need to
put this Company out of business needs to move on, find an-
other 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.

The General Counsel argues that this statement violated Sec-
tion 8(a)(1) of the Act. For the following reasons, I agree.
In Jupiter Medical Center Pavilion, 346 NLRB 650 (2006),
the respondent conducted a number of employee meetings in
response to a union organizing campaign. At one such meet-
ing, 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 admin-
istrative law judge, the Board held that the statement, suggest-
ing 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 sup-
port for the union is incompatible with continued employment.
Rolligon Corp., 254 NLRB 22 (1981). Suggestions that em-
ployees who are dissatisfied with working conditions should
leave rather than engage in union activity in the hope of rectify-
ing matters coercively imply that employees who engage in
such activity risk being discharged.
As discussed above, Section 8(c) recognizes and protects an
employer’s right to express an opinion, so long as the expres-
sion 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. Consid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612
ered in a “vacuum”—free of context—such a statement does
not implicate an employee’s protected activities.
However, context can shape the same words into a less be-
nign message. As the Board observed in Jupiter Medical Cen-
ter Pavillion, supra, 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.”
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 activi-
ty.
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 “incompat-
ible with continued employment.”
Early in the speech, which Roth gave to bargaining unit em-
ployees, he discussed the status of Respondent’s negotiations
with the Union. He vigorously criticized two employee mem-
bers 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 union,” as the Board used that term in Jupiter Medical Cen-
ter Pavillion, supra.
Moreover, Roth strongly criticized those who had filed
charges with the Board, and claimed that, because of the charg-
es, 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 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 mon-
ey for something it did not do.
After criticizing employees for filing charges and after stat-
ing how much defending against those charges had cost Re-
spondent, Roth mentioned an employee who reportedly had
said that he didn’t care whether Respondent went out of busi-
ness. 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.
Roth’s further statement, that “they should find another job
elsewhere and stop infecting the rest of us with all of their neg-
ativity,” clearly implies that engaging in protected activity—
filing charges with the Board—was incompatible with contin-
ued employment. In effect, Roth’s words require employees to
chose between engaging in protected activity and holding a job.
In 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 criti-
cized their performance. However, Section 7 of the Act pro-
tects 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 bargaining commit-
tee.
In sum, I conclude that, by the conduct described in com-
plaint paragraph 15, Respondent violated Section 8(a)(1) of the
Act. I recommend that the Board so find.
5. Complaint paragraph 16(a)
Respondent has admitted that on June 8, 2005, it suspended
employee Anthony Lyles for 1 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 complaint paragraph 17.
Complaint paragraph 26 alleges that the June 8, 2005 sus-
pension 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 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 moved from employee to em-
ployee 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 em-
ployees Anthony Lyles and Robert Bowser were “talking about
union business on company time” and that this discussion was
slowing the work.
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 breaktime
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 had been the certified bargaining repre-
sentative for about 2-1/2 months.
Lyles asked Smith if Kenneth Small was the employee who
had complained. Smith declined to say. Lyles and Bowser
returned to work.
Smith’s testimony indicates that he did not consider his dis-
cussion 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 wit-
MESKER DOOR, INC. 613
nesses, I credit Smith’s testimony rather than Bowser’s, and
find that Smith did not give either Lyles or Bowser a “warn-
ing,” as that term is used to signify disciplinary action.
Later that same day, Small made a “formal” (written) com-
plaint to Smith. It stated (with grammar and spelling uncor-
rected) as follows:

I, Kenneth Small Life has been threaten and property meaning
truck. Now I am suppose 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 incident at an unrelated employer’s
facility. Smith credibly testified that he took Small’s complaint
seriously and conducted an investigation, which included inter-
viewing Lyles and Bowser. They denied threatening Small in
any way.
Based on that investigation, management issued an “Em-
ployee Disciplinary Report” dated June 9, 2005. 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.
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 Gov-
ernment must show the existence of activity protected by the
Act. Second, the Government must prove that Respondent was
aware that the employees had engaged in such activity. Third,
the General Counsel must show that the alleged discriminatees
suffered an adverse employment action. Fourth, the Govern-
ment must establish a 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, 346 NLRB 1099 (2006).
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 prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct. Wright
Line, 251 NLRB at 1089; Hyatt Regency Memphis, 296 NLRB
259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th Cir.
1991). See also Manno Electric, Inc., 321 NLRB 278, 280 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 Gov-
ernment has proven the first Wright Line element.
Uncontradicted 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.
The General Counsel also has proven the third Wright Line
element. The 1-day suspension certainly is an adverse em-
ployment action. However, I conclude that the Government has
not established the fourth Wright Line requirement, a link be-
tween the protected activity and the adverse employment ac-
tion.
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 proxim-
ity 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 worktime, this
instruction manifested Respondent’s hostility towards the Un-
ion.
The General Counsel correctly notes that a supervisor’s re-
mark 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 Bow-
ser—that they could not discuss “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 8(a)(1) and I reach no conclu-
sions 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.
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 im-
posing discipline. However, the weight properly attached to
this evidence can vary widely, depending on specific circum-
stances. For example, an 8(a)(1) violation which preceded the
discipline by 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.
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 moti-
vation for a subsequent act, the trier of fact must draw upon
logic, common sense, and at least a smattering of familiarity
with human nature.
As noted above, I assume for the sake of analysis that Assis-
tant 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 the statement, because in general, proof
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614
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 pro-
hibit employee discussion of a 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 2-1/2 months
after the Union had won that campaign, in fact, after the Re-
spondent 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 sig-
nificance, the 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 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 rele-
vant to another issue, the extent to which the rule evinces an
intent to discriminate unlawfully against union adherents. Evi-
dence which shows not only a hostile attitude towards the Un-
ion but also a reason or inclination to act on it provides persua-
sive evidence of a link between the protected activities and the
adverse employment action. An absence of such evidence
makes a nexus less likely.
In considering this issue, I may take into account Bowser’s
testimony that when Smith told them that they could not dis-
cuss “union business” on working time, he explained, in Bow-
ser’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.
Based on uncontradicted testimony, I also find that Smith told
Bowser and Lyles that they could discuss “union business”
during breaktime 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.
Moreover, other evidence supports the conclusion that con-
cerns about production, not hostility towards the Union, moti-
vated Smith. The record establishes that Respondent was in-
deed having production problems, and that these problems be-
came 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.
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 activi-
ty, it likely would have disciplined both of the employees who
had been talking about union business while production slowed.
In these circumstances, I conclude that Smith’s rule prohibit-
ing 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 Line requirement, the Government must pre-
sent 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
“[w]here a witness to a disputed event 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 ac-
counts 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 respondent’s unexplained failure to call one
of its managers when that person has relevant knowledge con-
cerning 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.
If the General Counsel had presented evidence which Re-
spondent manifestly had needed to rebut, and if Frates clearly
appeared to be the one who could do the rebutting, Respond-
ent’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.
Respondent did not have to decide which witnesses to call
until after the Government rested its case. Based on the evi-
dence 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-
examined the Government’s witnesses and could make a judg-
ment 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 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 ad-
mitted a retaliatory motive for redirecting a fan away from
Small and, when Small protested, saying, “[W]e’re doing it
now.”
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 quick-
ly to prevent its escalation. The presence of legitimate reasons
for 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 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 pro-
MESKER DOOR, INC. 615
tected activities of Lyles and Bowser and the suspension which
Lyles received. Accordingly, I further conclude that the Gov-
ernment 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 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.
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.
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.
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 re-
sponse than a threat solely with words. Although Respondent’s
decision to discharge the knife-wielding employee is not pa-
tently inconsistent with its decision only to suspend Lyles for a
day, the two situations are not similar enough to allow a mean-
ingful comparison.
In September 2004, as a practical joke, employee Don Lar-
son 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, 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 sus-
pension of Small for threatening another employee, Gary Bai-
ley. Respondent issued Lyles the suspension notice in early
June. About a month later, during a negotiating session, union
committeeman Rollie Powell informed management that Ken-
neth 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. 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 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
yielding to the steward’s continued entreaties. However, a
careful examination of Torres’ testimony reveals a rather dif-
ferent 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 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 1-day suspension or give him a written write up. And
Rollie asked that I give him a written write up.”
The options which Torres offered Powell—suspending Small
or simply warning him—provided as much real choice as ask-
ing 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. Re-
spondent, not the Union, bears responsibility for deciding to
impose a milder discipline on Small than Lyles received.
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. Respond-
ent would not agree to pay Lyles for this time, but it did agree
to reduce Lyles’ discipline from a suspension to a written warn-
ing.
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
the General Counsel had established the initial four elements,
thus, placing a rebuttal burden on Respondent, I would con-
clude 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).
6. Complaint paragraph 16(b)
Complaint paragraph 16(b) alleges that on October 13, 2005,
Respondent imposed a 1-day suspension on employee Rollie
Powell. Respondent admits doing so. However, Respondent
denies that it suspended Powell because of employees’ union
activities and concerted protected activities and because em-
ployees filed charges and gave testimony pursuant to the 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.
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616
As noted above, Powell was a member of the Union’s nego-
tiating committee. The Union and Respondent had scheduled a
bargaining session for October 12, 2005. However, a Board
agent investigating an unfair labor practice charge against Re-
spondent 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.
Bargaining sessions typically began, or were scheduled to
begin, at 8 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 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 you.”
The next day, October 11, Torres informed Powell that the
bargaining session would remain scheduled to begin at 1 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 work until 11 a.m., time when Powell
usually began his lunchbreak. Torres told Powell he could 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 a.m., as Torres had instruct-
ed, went home, changed clothes, and arrived at the Hampton
Inn at 12:50 p.m., that is, 10 minutes before the bargaining
session was scheduled to begin. The remaining members of the
Union’s bargaining committee arrived and then went into the
negotiating room at 1 p.m., discovering that no one on the Re-
spondent’s bargaining team was there.
When Respondent’s negotiators still had not arrived by 1:15
p.m., Union Representative 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 men-
tioned to Anderson that he needed to be at the union hall by 3
p.m. to meet with the Board investigator, and that he intended
to explain his situation to the Respondent’s representatives
when they arrived and then leave. However, when Respond-
ent’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.
Respondent’s negotiators arrived somewhat later. Based on
Regan Long’s testimony, which I credit, I find that the mem-
bers of Respondent’s bargaining committee arrived some time
around 2:30 p.m. 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, “[T]he cost of all this litigation . . . whatever
raises you was going to get, you’re not going to 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 did make the statement quoted
above.
For the reasons discussed above in connection with com-
plaint 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 indi-
cating that the unfair labor practice charges vexed Respondent
considerably.
When Kaspers asked about Powell’s whereabouts, Long re-
plied 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.
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 in-
vestigation.” According to Powell, Kaspers said, “The Compa-
ny doesn’t pay you to investigate. You are suspended for a
day. That will be tomorrow. Enjoy your day off. You are
going to lose a day from your attendance.” Kaspers added,
“You lied. You weren’t here.”
At this point, Long interjected that Powell had been at the
bargaining location. Powell confirmed that he had been pre-
sent. “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.”
Powell told Kaspers that he had not lied and hadn’t done an-
ything 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 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.
Accordingly, it doesn’t damage the credibility of either Pow-
ell 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, “[W]e let you off work to come to nego-
tiations, 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 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 wit-
nesses. Typically, the most vivid 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.
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.
MESKER DOOR, INC. 617
Although Kaspers, as a witness, did not deny making the
statements quoted above, Kaspers, as the Respondent’s attor-
ney, did assail Powell’s credibility during oral argument.
Kaspers pointed to a seeming inconsistency between Powell’s
testimony on direct and cross-examination.
Kaspers noted that on direct examination, Powell had testi-
fied 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
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 no
further communication that your absence was for any oth-
er 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.
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 Octo-
ber 12, was that you had taken off work at 11:00 to attend
the bargaining, and that you—and no other communica-
tion was made as to any reason other than attending bar-
gaining, 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 arbi-
trarily said, “You’re a liar. You’re suspended.”

Clearly, Respondent has identified an inconsistency between
Powell’s testimony on direct and cross-examination. Potential-
ly, 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.
The complaint alleges that Respondent’s suspension of Pow-
ell violated both Section 8(a)(3) and (4) of the Act, the latter
making it unlawful to discriminate against an employee be-
cause 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,
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 manage-
ment did not know about Powell’s participation in the NLRB
investigation.
However, three other witnesses—Morris Anderson, Regan
Long, and Anthony Johnson—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 13, but rather what he told Re-
spondent on October 12. After an objection, I asked Respond-
ent’s counsel to rephrase the question. In doing so, Respond-
ent’s counsel again focused on the knowledge Respondent pos-
sessed 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:

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 authorization
from the company to leave work at 11:00 o’clock yester-
day 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 reason
that he was absent from work. The bad news is for not giv-
ing the company a straight reason why you were absent af-
ter 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.
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 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.”
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 exami-
nation.
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 John-
son, 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 authoriza-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618
tion to be absent to leave work at eleven o’clock 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.

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 pos-
sibility. Significantly, one portion of Torres’ testimony casts
doubt on the sequence of events propounded by Respondent’s
counsel. In that scenario, Kaspers simply asked Powell if he
had obtained authorization to leave work at 11 o’clock a.m. to
attend bargaining and then, when Powell answered affirmative-
ly, then and there told Powell that he was being suspended for a
day.
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.”
For still another reason, I reject the argument that Kaspers,
on October 13, simply asked Powell if he had received permis-
sion to leave work at 11 a.m. to attend bargaining, received an
affirmative answer and then, without further inquiry, told Pow-
ell he was being suspended. Such a brusk and precipitous ac-
tion would be out of character.
During the 9 days of hearing, 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 Kaspers’ meticulousness
would not 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 bar-
gaining session. A lawyer of Kaspers’ civility and profession-
alism would not accuse Powell of lying without first inviting
him to present his side of the story and considering it.
In sum, it would be quite out of character for Kaspers to im-
pose 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, 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 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, Kaspers
learned that Powell had been participating in the Board’s inves-
tigation.
It may be noted that even if I assumed, for the sake of analy-
sis, that Respondent had not known about Powell’s protected
activity before Kaspers announced the suspension, the immedi-
ate 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 Pow-
ell’s protected activities, it proceeded with the suspension.
Before deciding which analytical framework should be used
in evaluating the facts, some further discussion may be war-
ranted 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 sus-
pended for a day. . . . You lied. You weren’t here.” This re-
mark indicates that Respondent suspended Powell for suppos-
edly 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,” Respondent did not pay Powell or any
of the Union’s negotiating committee members for the 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 Respond-
ent 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 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 ne-
gotiating site at the appointed time, a fact Respondent knew
when it imposed the discipline. Powell’s presence at the bar-
gaining table 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 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 ses-
sion between the United Steelworkers Union and Mesker
Door scheduled for that afternoon. While the commence-
ment of the scheduled 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 bar-
gaining session. Mr. Powell’s absence during the last half
of the workday on 10/12 was, therefore, not only unex-
cused, but the reason he provided to the Company prior to
leaving work on 10/12 proved to be a false reason. While
providing the Company with a false reason for being ab-
sent 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
MESKER DOOR, INC. 619
hour bargaining session on the afternoon of 10/12 had on
the progress that the Union and the 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” 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 nei-
ther.
The credited evidence convincingly establishes that Powell
did not falsify the reason for 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. Moreo-
ver, 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.
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 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 protec-
tion of the Act. Beverly Health & Rehabilitation Services, 346
NLRB 1319 (2006). Sometimes, this method of analyze is
called the Burnup & Sims framework because of the Supreme
Court decision which informed its development. See NLRB v.
Burnup & Sims, Inc., 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 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 61 (2002).
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 1187 (2005).
Accordingly, whether the Burnup & Sims or the Wright Line
framework should be used in this case turns on whether Re-
spondent held an honest, good-faith belief that Powell had en-
gaged in misconduct. The credited evidence compels a conclu-
sion that Respondent did not hold such a good-faith, honest
belief.
Respondent’s assertion that Powell lied assumes that Powell
asked management for permission to leave work at 11 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 Manager Torres in-
formed Powell of the change in meeting time and instructed
Powell to leave work at 11 a.m.
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,
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?
A. No, he did not.

Powell’s supposed failure to request time off for another rea-
son becomes, in Respondent’s argument, a lie. However, this
argument not only is disingenuous but transparently so.
Credited evidence establishes that the management negotia-
tors did not arrive at the meeting place until about 1-1/2 hours
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 mes-
sage to the Union’s bargaining team by calling 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 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 tele-
phone.
Both Kaspers and Torres testified, but neither offered any
reason to disbelieve the 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 testi-
mony. 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.
Respondent has cited no basis for an honest belief that Pow-
ell 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 ad-
hered to its claim—that Powell had lied—even in the absence
of evidence to support that claim and in the presence of evi-
dence which contradicted it. More than that, Respondent of-
fered 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620
Were I to conclude that Respondent held an honest belief
that Powell had lied, or 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 long past the
scheduled starting time, and after attempts to contact the Re-
spondent’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 ne-
gotiators. At that point, leaving was not misconduct.
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 pro-
cedure described earlier in this decision.
The General Counsel has satisfied the first Wright Line re-
quirement by proving that Rollie Powell engaged in activities
protected by the Act. Powell’s service as a member of the Un-
ion’s negotiating committee certainly enjoys the Act’s protec-
tion.
Moreover, on September 9. 2005, Powell filed an unfair la-
bor 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. How-
ever, Powell signed the charge, which listed his title as “Nego-
tiating Committee Member.” Filing this charge, of course, con-
stituted protected activity. Powell also engaged in protected
activity on October 12, 2005, 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 bar-
gaining committee brought him into contact with management
and identified him with the Union.
Respondent also had notice of Powell’s protected activity fil-
ing the unfair labor practice charge. As discussed above, Pow-
ell’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, because the next day, Powell told Respond-
ent’s attorney and plant manager. Powell made this disclose in
explaining why he had not participated in the October 12 bar-
gaining session.
The Government also has proven the third Wright Line ele-
ment. Respondent suspended Powell for 1 day and this suspen-
sion certainly constituted an adverse employment action.
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.
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.
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.
The next day, when Kaspers learned that Powell had been
meeting with the Board agent the previous afternoon, he sus-
pended Powell. This sequence establishes a nexus between
Powell’s protected activity and the adverse employment action.
In sum, the General Counsel has proven all four of the
Wright Line elements. At this point, the burden of going for-
ward normally would shift to the Respondent, to present evi-
dence that it would have taken the same action even in the ab-
sence of protected activity. However, when a respondent has
asserted a pretextual reason for taking an adverse employment
action, that 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 Respond-
ent’s action are pretextual . . . the Respondent fails by defini-
tion 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 mis-
conduct, it reveals that Respondent tried to hide its discrimina-
tion behind a pretext. Indeed, when ranked against the pretexts
typically encountered in labor law, this one is particularly obvi-
ous, 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 bargaining session. Respond-
ent’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.
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 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
MESKER DOOR, INC. 621
arrive at the bargaining site, did more than remind Respondent
of Powell’s initial involvement with the charge. Now, it ap-
peared, Powell had “stood up” the management negotiators,
choosing to meet instead with the Board investigator. Thus
scorned, Respondent reacted with fury. Kaspers accused Pow-
ell 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 re-
spondent to show that it would have discharged a discriminatee
even 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
8(a)(4) as well as Section 8(a)(3) and (1) of the Act. I recom-
mend that the Board so find.
7. 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 alle-
gation but it denies that it did so because of employees’ pro-
tected activities, as alleged in complaint paragraph 18. Re-
spondent 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 stipu-
lation:

Without waiving Respondent’s position that every-
thing 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.
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 at-
tendance point, and an employee who received a 1-day suspen-
sion 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 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 imposi-
tion of points as a separate act of unlawful discrimination, but it
can also be regarded as a part of the violation alleged in com-
plaint paragraph 16(b).
Either way, the imposition of negative points violated Sec-
tion 8(a)(1), (3), and (4) of the Act. But for Respondent’s un-
lawful suspension of Powell, he would not have been assessed
negative points under the attendance system. Accordingly, the
imposition of points was 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 unlaw-
ful imposition of negative points resulted in Powell being ineli-
gible for a paid day off to which he otherwise would have been
entitled. Such an issue must be left for resolution in the compli-
ance phase of this proceeding.
8. Complaint paragraph 16(d)
Complaint paragraph 16(d) alleges that on about June 21,
2006, Respondent discharged employee Cecil Herren. Re-
spondent admits this allegation.
Complaint paragraph 19 alleges that Respondent discharged
Herren because employees advised Respondent of their inten-
tion to seek recourse for perceived discrimination for union
activities through the Board and to discourage employees from
filing charges and giving testimony under the Act. Respondent
denies this 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 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 opera-
tor must measure every 20th door to make sure that it meets
specifications.
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. Addi-
tionally, Assistant Plant Manager Smith testified that, on this
same day, he heard Herren say that he was 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 admit-
ted making that statement later the same day. He testified as
follows:

Q. At the front end of that day did you have a discus-
sion 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?
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, alt-
hough not dispositive, certainly does not weigh in Herren’s
favor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
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 20th door because of his skill, it
would be quite odd for him to make this claim later, while dis-
cussing 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 morn-
ing conversation, claim that his skill exempted him from need-
ing to follow the check-every-20 rule. Notwithstanding Her-
ren’s claim, Supervisor Watson told him to follow the rule.
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 to the office, suspended him for 1
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 be-
cause “I messed them [the doors] up, it was my fault.” Howev-
er, the severity of the discipline surprised him. Herren told 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 the meeting. This report
included an “Employee’s Remarks” section in which the fol-
lowing 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 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 disci-
plinary interview on June 19, 2006. The witnesses agree, how-
ever, 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.
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 sug-
gests that Respondent created the arbitration procedure, but
does not disclose exactly when Respondent did so.
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.
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 peri-
od before Roth came back from retirement.
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 took on additional significance.
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 suspen-
sion into a discharge.
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 previ-
ous Board proceeding in August 2005.
The General Counsel argues that Herren engaged in other
protected activity more proximate to his discharge. According
to Herren, when he received the suspension, he told the super-
visors that Respondent was taking that action because Herren
voted for the Union. Herren also testified that he told the su-
pervisors he would take the matter to arbitration and to the
Board.
For the reasons discussed above, I do not credit Herren’s tes-
timony that he told the 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 be-
tween Respondent and the Union, Herren’s statement that he
intended to use this procedure would constitute an assertion of
a right under a collective-bargaining agreement and therefore
would enjoy the Act’s protection. White Electrical Construc-
tion Co., 345 NLRB 1095 (2005); NLRB v. City Disposal Sys-
tems, 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.
The General Counsel argues that Herren’s expression of in-
tent to seek arbitration still would enjoy the Act’s protection
because arbitrator would decide whether Herren had been dis-
criminated against because of his support for the Union, a ques-
tion relating to the Act. “Mr. Herren clearly indicated an intent
on his part to vindicate rights that are provided to employees
only by the National Labor Relations Act,” the General Coun-
sel 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 an
employee because he has filed charges or given testimony un-
der this Act.” 29 U.S.C. § 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 noncon-
tractual 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 protects Herren’s remark about
taking the matter to arbitration.
MESKER DOOR, INC. 623
Herren did engage in one other protected activity. After be-
coming disaffected with the Union, Herren signed the petition
on which Respondent relied in withdrawing recognition. Be-
cause the Act protects both this petition signing and Herren’s
earlier testimony in the August 2005 Board proceeding, I con-
clude that the General Counsel has established that Herren en-
gaged 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 was
a party. Respondent also knew about Herren’s signing the peti-
tion, because Respondent received that petition and relied on it
when it withdrew recognition from the Union.
The General Counsel also has established that Herren suf-
fered an adverse employment action. Discharge was adverse to
his employment.
However, the Government has not proven a connection be-
tween Herren’s protected activity and his discharge. About 10
months elapsed between Herren’s testimony in the Board pro-
ceeding 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
decision to discharge him.
It seems unlikely that Respondent would retaliate against
Herren for signing an antiunion petition and I conclude that
Respondent did not.
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.
Section 10(c) of the Act includes the proviso that “[n]o 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 sus-
pended or discharged for cause.” Crediting Plant Manager
Roth’s testimony, I conclude that Herren’s termination was a
discharge 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 recom-
mend that the Board dismiss the allegations relating to Herren’s
discharge.
9. Complaint paragraphs 16(e), (f), and (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 July 14, 2006, Respondent reassigned Powell to take off
duties on the frame department paint line. Complaint para-
graph 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 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. Re-
spondent also denies that its actions violated Section 8(a)(1),
(3), and (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 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 fo-
cused its attention on Powell because of his protected activities,
and subjected him to more scrutiny than other employees. 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 mak-
ing door frames. The credited evidence establishes that on July
7, 2006, Powell produced 130 frames which significantly de-
parted 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.
The General Counsel’s argument goes into considerable de-
tail concerning exactly how the frames failed to meet Respond-
ent’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 estab-
lishes that the defects were serious.
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 deter-
mining 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.
Although Thompson testified that he measured all 130
frames, I am skeptical. Thompson testified that the measure-
ments took “maybe five, ten minutes.” Completing the meas-
urements in only 10 minutes would require Thompson to have
measured 13 frames a minute or 1 frame every 4.6 seconds.
That pace sounds rather rapid, particularly for an employee
whose regular job 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 specifica-
tions required the measurement of miters, but Thompson testi-
fied 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 fol-
lows:
0
Q. Do you know what the tolerances are for a throat
opening on an 800 series frame?
A. Throat opening, no.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
Q. Have you ever seen the Steel Door Institutes pub-
lished technical data series manufacturing tolerance stand-
ard 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 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 would cause him to make a mistake. The General Coun-
sel 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 situa-
tion: Powell either had to sacrifice quality to meet the produc-
tion standard or else attend to quality and fail to meet the stand-
ard.
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 credit-
ing 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 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 im-
posed on Powell any production standard more onerous than
that placed on other employees. Roth’s instruction that 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 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 dispro-
portionately on Powell.
In sum, I conclude that on July 7, 2006, Powell made 130 de-
fective 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.
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 stat-
ed: “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 con-
clude that the General Counsel has proven the first three re-
quirements. Powell had engaged in extensive protected activi-
ty, including serving on the Union’s bargaining committee,
filing charges with the Board, and meeting with the Board
agent. For the reasons discussed above, I conclude that Re-
spondent 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 adverse employment action. As
discussed above in connection with complaint paragraphs 16(b)
and (c), in October 2005, Respondent had disciplined Powell in
retaliation for his protected activities and had resorted to a pre-
text 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.
Respondent also committed certain other unfair labor prac-
tices, discussed above. Accordingly, I conclude that animus
towards union and other protected activity constituted a sub-
stantial 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, 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 dis-
charge notice explaining that “due to past history (3 additional
write ups) we are terminating 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 him to a lower paying job. To
the contrary, Respondent’s own evidence indicates the oppo-
site.
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:

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.
George told Rollie that the customer, Wheeler Hard-
ware 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 sus-
pended for running parts that you are going to ship to a
customer.
George said no, I’m telling you that you were sus-
pended for running 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.

MESKER DOOR, INC. 625
Based on Torres’ notes, I conclude that Respondent’s unlaw-
ful suspension of Powell in October 2005 resulted in Respond-
ent’s July 2006 decision to suspend Powell for 2 days, rather
than for a lesser period. Therefore, I further conclude that Re-
spondent 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
the Act.
B. Withdrawal of Recognition
Respondent has admitted that, during the period March 22,
2005, until May 8, 2006, the Union was the exclusive repre-
sentative, by virtue of Section 9(a) of the Act, of the appropri-
ate bargaining unit described above under “Admitted Allega-
tions.” It also admits that on May 8, 2006, it withdrew recogni-
tion 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 recogni-
tion because the Union no longer enjoyed the support of a ma-
jority of bargaining unit employees.
Alan Frazier, an employee in Respondent’s seamless de-
partment, prepared a petition stating, “We, the undersigned, no
longer wish to be represented by the United Steelworkers Un-
ion.” Frazier signed it on April 27, 2006, and then began ask-
ing other employees to sign it. 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 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, Re-
spondent withdrew recognition.
The Government has not asserted that Frazier was Respond-
ent’s supervisor and the record 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.
The General Counsel, however, argues that Respondent law-
fully 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 Govern-
ment contends that unlawful statements in Plant Manager
Roth’s May 4, 2006 speech to employees caused them to aban-
don support for the Union.
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 & Build-
ing Material Corp., 322 NLRB 175, 177 (1996). In cases in-
volving unfair labor practices other than a general refusal to
recognize and bargain, there 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 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 detri-
mental or lasting effect on employees; (3) the tendency to cause
employee disaffection; and (4) the effect of the unlawful con-
duct on employees’ morale, organizational activities, and mem-
bership in the union. Master Slack Corp., 271 NLRB 78, 84
(1984).
In the present case, I will not, of course, consider the unfair
labor practice which occurred after the withdrawal of recogni-
tion. Respondent’s suspension of Rollie Powell for 2 days in
July 2006 could not have affected employee support for the
Union before Respondent withdrew recognition 2 months earli-
er.
However, the following unfair labor practices, discussed
above, will be considered:

1. Manager Torres’ March 9, 2005 statements to
Janice Medlock that “that going around talking to people
about FMLA, vacations, etc. could jeopardize her job” that
if he heard again that she was keeping records on employ-
ees she would be disciplined.
2. The statements of Respondent’s chief negotiator,
William Kaspers, at the September and October 2005 bar-
gaining sessions, that employees would not receive a 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 Rol-
lie 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 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 senti-
ment more than a year later. Besides the amount of time which
elapsed, only one employee heard what Torres said. Therefore,
it would appear unlikely to have a detrimental or lasting effect
on employees. Additionally, the statement did not directly
concern the Union, making it unlikely to cause employee disaf-
fection. Similarly, it had little potential to affect employees’
morale, organizational activities or union membership.
Respondent’s statements at the bargaining table in Septem-
ber and October 2005 similarly 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 disaffec-
tion with the Union, and would have minimal effect on em-
ployees’ morale, organizational activities, and union member-
ship.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
Respondent’s October 13, 2005 suspension of Powell also
occurred half a year before the withdrawal of recognition. Alt-
hough 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 mem-
bership.
On the other hand, Plant Manager Roth’s May 4, 2005
speech came at a pivotal time in Frazier’s efforts to obtain sig-
natures on his petition. Indeed, the General Counsel notes that
Frazier increased his efforts to obtain signatures after the
speech. Accordingly, the first Master 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,
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 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 vi-
olated the Act because, in the context of Roth’s entire speech, it
referred to employees who had filed unfair labor practice
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 mes-
sage 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.
Roth’s statement might arouse sentiment against the employ-
ees 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.
Likewise, the implication inherent in Roth’s violative state-
ment, 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 member-
ship. 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.
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 disaffec-
tion. Therefore, I conclude that the existence of these unreme-
died unfair labor practices did not preclude Respondent from
lawfully withdrawing recognition. See Champion Home Build-
ers Co., 350 NLRB 788, 791–792 (2007).
Accordingly, I recommend that the Board dismiss the com-
plaint allegations that Respondent violated Section 8(a)(5) and
(1) by withdrawing recognition from the Union.
C. Unilateral Change Allegations
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 ad-
mits these changes, although it objects that the allegations are
irrelevant because Respondent lawfully withdrew recognition
from the Union.
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 em-
ployees “earn back” attendance points assessed to them, the
number of allowable points, and the cap on the number of
points that may be “earned back” under the system. Respond-
ent’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 produc-
tion, 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 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 para-
graph 22 . . . the Respondent, therefore, denies said allegations
and any remaining allegations in paragraph 22.”
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 Respond-
ent 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, 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 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. How-
ever, 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,
2006, with respect to changes in wage rates, the attendance
MESKER DOOR, INC. 627
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 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
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.
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 inform-
ing her that she would be subject to disciplinary action if 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 negotia-
tions with the Union would 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 un-
happy that they felt they needed to put the Respondent out of
business should find other employment.
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.
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.
8. Respondent did not violate the Act in any other manner
alleged in the complaint.
REMEDY
To remedy the unfair labor practices described above, Re-
spondent must rescind its unlawful suspensions of its employee
Rollie Powell and its transfer of Powell to a lower-paying 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 de-
scribed below, the notice to employees attached hereto as Ap-
pendix A.
[Recommended Order omitted from publication.]