MEYER TOOL INC.

National Labor Relations Board - Board Decisions

Mar 9, 2018

366 NLRB No. 32 (N.L.R.B. 2018)

366 NLRB No. 32
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Meyer Tool, Inc. and William Cannon-El III. Case
09–CA–185410
March 9, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
AND EMANUEL
On June 12, 2017, Administrative Law Judge Andrew
S. Gollin issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and conclu-
sions2 and to adopt the recommended Order as modified
and set forth in full below.3

1 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by summoning the police for, suspending, and later
discharging employee William Cannon-El III, the Board notes that the
proper inquiry, pursuant to the Board’s decision in Atlantic Steel Co.,
245 NLRB 814 (1979), is whether the conduct is sufficiently egregious
or opprobrious to remove it from the protection of the Act. Thus, we
disavow the portion of the judge’s analysis that describes the appropri-
ate inquiry as whether Cannon-El was “engaged in the sort of miscon-
duct that is so violent or of such a character as to render him unfit for
further service.” Chairman Kaplan and Member Pearce agree with the
judge that all four Atlantic Steel factors weigh in favor of finding that
Cannon-El’s conduct remained protected. Member Pearce would find
that, in addition to the reasons set forth by the judge, the Respondent
also provoked Cannon-El by refusing to accept his complaint, which, in
a workplace where employees are unrepresented, was akin to a griev-
ance. See Mast Advertising & Publishing, Inc., 304 NLRB 819, 819
(1991) (two employees in an unrepresented workforce going to Human
Resources about a complaint is tantamount to presenting a grievance);
Overnite Transportation Co., 343 NLRB 1431, 1438 (2004) (supervisor
provoked union steward who was seeking information relevant to pos-
sible discharge grievances, by supervisor’s “complete” and “hostile”
refusal to discuss the situation).
Member Emanuel concurs in finding the violation, but finds that the
third Atlantic Steel factor—nature of the outburst—weighs against
continued protection. Member Emanuel finds that Cannon-El’s repeat-
ed refusals, after several direct orders, to leave the Respondent’s Hu-
man Resources Department constitute serious insubordination. None-
ORDER
The National Labor Relations Board orders that the
Respondent, Meyer Tool, Inc., Cincinnati, Ohio, its of-
ficers, agents, successors, and assigns shall
1. Cease and desist from
a. Summoning the police to remove employees from
its premises because they engaged in protected, concert-
ed activity.
b. Indefinitely suspending, discharging, or otherwise
discriminating against employees because they engaged
in protected, concerted activity.
c. In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
a. Within 14 days from the date of this Order, offer
William Cannon-El III reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
b. Make William Cannon-El III whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in the
remedy section of the judge’s decision.
c. Compensate William Cannon-El III for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director for Re-
gion 9, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
year.
d. Compensate William Cannon-El III for his search-
for-work expenses and interim employment expenses

theless, given that the other three factors weigh in favor of protection,
Member Emanuel agrees that the Respondent’s suspension and dis-
charge of Cannon-El violated Sec. 8(a)(1). See Kiewit Power Con-
structors Co. v. NLRB, 652 F.3d 22, 27 fn. 1 (D.C. Cir. 2011) (“It is
possible for an employee to have an outburst weigh against him yet still
retain protection because the other three factors weigh heavily in his
favor.”).
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language and in accordance with our
decisions in Excel Container, Inc., 325 NLRB 17 (1997), and Ferguson
Electric Co., 335 NLRB 142 (2001). We shall also substitute a new
notice to conform to the Order as modified.
The General Counsel seeks a make-whole remedy that includes con-
sequential damages incurred as a result of the Respondent’s unfair labor
practice. The relief sought would require a change in Board law. Hav-
ing duly considered the matter, we are not prepared at this time to devi-
ate from our current remedial practice. Accordingly, we decline to
order this relief at this time. See, e.g., Laborers International Union of
North America, Local Union No. 91 (Council of Utility Contractors),
365 NLRB No. 28, slip op. at 1 fn. 2 (2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
regardless of whether those expenses exceed interim
earnings.
e. Within 14 days from the date of this Order, remove
from its files any reference to the unlawful summoning
of the police for, suspension of, and discharge of William
Cannon-El III, and within 3 days thereafter, notify Wil-
liam Cannon-El III in writing that this has been done and
that the summoning of the police, suspension, and dis-
charge will not be used against him in any way.
f. 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, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
g. Within 14 days after service by the Region, post at
its facilities in Cincinnati, Ohio, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since May 26, 2016.
h. Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 9, 2018

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted [Mailed] by Order of
the National Labor Relations Board” shall read “Posted [Mailed] Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 summon the police to remove you from
our premises for engaging in protected, concerted activi-
ty.
WE WILL NOT indefinitely suspend, discharge, or oth-
erwise discriminate against you for engaging in protect-
ed, concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer William Cannon-El III full reinstatement to
his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously en-
joyed.
WE WILL make William Cannon-El III whole for any
loss of earnings and other benefits resulting from his
suspension and discharge, less any net interim earnings,
plus interest.
WE WILL compensate William Cannon-El III for the
adverse tax consequences, if any, of receiving a lump-
MEYER TOOL, INC. 3
sum backpay award, and WE WILL file with the Regional
Director for Region 9, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WILL make William Cannon-El III whole for his
reasonable search-for-work and interim employment
expenses, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful summoning of the police for, suspension of, and dis-
charge of William Cannon-El III, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the summoning of the police, suspension,
and discharge will not be used against him in any way.
MEYER TOOL, INC.
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-185410 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Zuzana Murarova, Esq., for the General Counsel.
Ryan M. Martin and Daniel Rosenthal, Esqs., for the Respond-
ent.
Natalie F. Grubb, Esq., for the Charging Party.
DECISION
I. INTRODUCTION
ANDREW S. GOLLIN, Administrative Law Judge. This case
was tried before me on April 10–11, 2017, in Cincinnati, Ohio.
The complaint alleges that Meyer Tool, Inc. (Respondent) vio-
lated Section 8(a)(1) of the National Labor Relations Act (Act)
when it summoned the police to remove, indefinitely suspend-
ed, and later discharged William Cannon-El, III, because he
and other employees made complaints, orally and in writing,
related to Respondent’s creation of a new “go-to-guy” position,
the individual selected for the position, and management’s reac-
tions to their concerns about the alleged need for this new posi-
tion. Respondent denies the alleged violations, contending that
Cannon-El was not engaged in protected, concerted activity,
and that the actions taken against him were because he engaged
in intentionally intimidating and threatening behavior and re-
peatedly refused to leave Respondent’s premises when so di-
rected.
Based upon the evidence and applicable law, I find that Can-
non-El was engaged in protected, concerted activity, and that
Respondent took the actions at issue against him because of
that activity. I further find that, under the circumstances, Can-
non-El’s statements and conduct, including his failure to imme-
diately leave when so directed, did not cause him to lose the
protection of the Act. As a result, I find that Respondent vio-
lated the Act as alleged in the complaint.1
II. STATEMENT OF THE CASE
On September 29, 2016, Cannon-El filed an unfair labor
practice charge against Respondent, which was docketed as
Case 09–CA–185410. He filed a first-amended unfair labor
practice charge against Respondent on October 7, 2016, and a
second-amended charge on November 18, 2016. Based on its
investigation, on January 31, 2017, the Regional Director for
Region 9 of the National Labor Relations Board (Board) issued
a complaint, alleging that Respondent violated Sections 8(a)(1)
of the Act when it called the police, suspended, and later dis-
charged Cannon-El because he engaged in protected, concerted
activity. On February 14, 2017, Respondent filed its answer,
denying all alleged violations of the Act.
At the hearing, all parties were afforded the right to call, ex-
amine, and cross-examine witnesses, present any relevant doc-
umentary evidence, and argue their respective legal positions
orally.2 Respondent and General Counsel both filed posthear-
ing briefs, which I have carefully considered. Accordingly,
based upon the entire record, including the posthearing briefs
and my observations of the credibility of the witnesses, I make
the following
III. FINDINGS OF FACT3
JURISDICTION
At all material times, Respondent has been a corporation
with an office and place of business in Cincinnati, Ohio, and
has been engaged in the manufacture of components for aero-
space and industrial gas turbine engines. In conducting its op-

1 Abbreviations in this decision are as follows: “Tr.___” for tran-
script; “GC Exh.__” for General Counsel’s Exhibit; “R. Exh. __” for
Respondent’s Exhibit; “GC Br.____” for General Counsel’s brief; and
“R. Br. ___” for Respondent’s brief.
2 The General Counsel filed a posthearing motion to correct the rec-
ord to: (1) include the second page of GC Exh. 2, which had been inad-
vertently omitted from the record; and (2) remove pages 1 and 2 from
the four-page copy of GC Exh. 8, as those first two pages (which were
from a different document) were withdrawn and not received into the
record, causing the remaining pages of GC Exh. 8 to be renumbered as
pages 1 and 2, respectively. Respondent also filed a posthearing mo-
tion to correct the transcript to replace the word “shouldn’t” on page
407, line 18 with the word “should” because the word “should” is cor-
rect and consistent with the remainder of the sentence. After reviewing
the record, I grant both unopposed motions to make the necessary cor-
rections.
3 Although I have included citations to the record to highlight par-
ticular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
erations during the 12-month period ending December 1, 2016,
Respondent has performed services valued in excess of $50,000
for customers outside the State of Ohio. Respondent admits,
and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Based on the foregoing, I find this dispute affects commerce
and that the Board has jurisdiction of this case, pursuant to
Section 10(a) of the Act.
IV. UNFAIR LABOR PRACTICES4
Background
Cannon-El worked for Respondent at its Cincinnati, Ohio
manufacturing facility from September 4, 2007 to June 8, 2016.
At the time of his termination, Cannon-El was assigned to the
New Product Introduction (NDI) department, where he worked
the night shift (approximately 5 p.m. to 4 a.m.). Chris Bauer
and John Poff are two of the other employees who worked the
night shift in the NDI department. Their direct supervisor was
Rick Ackerson.
Prior to the events at issue, the NDI department experienced
production-related issues, and a conflict arose between night-
shift and day-shift employees regarding which shift was pri-
marily responsible for causing the issues. Poff informed mem-
bers of management that certain day-shift employees were
making false accusations about night-shift employees, particu-
larly Cannon-El, not performing their jobs properly. Poff and
other employees presented management with reports showing
that the accusations were untrue. At some point Respondent’s
vice president of operations, Gordy McGuire, appointed Huck
Finn to be the plant manager to oversee the night shift.
McGuire held a meeting where he instructed the night-shift
employees to report to Finn. (Tr. 286–287.)
May 25 Meeting
On May 25, 2016,5 Rick Ackerson held a departmental meet-
ing in the employee breakroom at the start of their shift. Can-
non-El, Poff, and Bauer attended this meeting, along with
night-shift employees Glenn Young, Steve Korb, and Mark
Metcalf. Ackerson began the meeting by announcing that the
company had created a new “go-to-guy” position for their area,
and that Mark Metcalf was selected to fill the position.
Following the announcement, Ackerson opened it up to
questions. Poff, Bauer, and Cannon-El each asked questions or
raised concerns. Poff asked what the go-to-guy was supposed

4 The following factual summary is a compilation of the credible
and uncontradicted testimony. To the extent that there was a dispute in
testimony, I have assessed the witnesses’ credibility considering a
variety of factors, including the context of the witness’ testimony, the
witness’ demeanor, corroboration, the weight of the respective evi-
dence, established or admitted facts, inherent probabilities, and reason-
able inferences that may be drawn from the record as a whole. Double
D Construction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group,
321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C.
Cir. 2003). Credibility findings need not be all-or-nothing propositions.
Indeed, nothing is more common in judicial decisions than to believe
some, but not all, of a witness’ testimony. Daikichi Sushi, supra.
5 Hereinafter all dates refer to 2016, unless otherwise stated.
to do, what authority did he have, and to whom did he report.
Specifically, Poff asked if the night shift was now supposed to
report to Mark Metcalf, and not Huck Finn. Ackerson respond-
ed that was what he had planned, and that was how it was going
to work. Ackerson then said, “If you don’t like it, there is the
door.” (Tr. 272.) Bauer and Cannon-El asked questions about
Metcalf, his qualifications, and how he was selected for the
position. Ackerson responded that Metcalf was qualified be-
cause he had 30 years of experience. Bauer stated that he
would not listen to Metcalf, who Bauer considered to have less
experience than he had, and Bauer did not think Metcalf knew
the area well enough.
At some point during the discussion, Poff got up and walked
out of the breakroom. The meeting continued. Bauer and Can-
non-El asked Ackerson more questions. Cannon-El asked why
their area needed a “babysitter.” Ackerson responded it was
because Cannon-El was not doing his work, and that he was
never in his assigned area. Cannon-El asked for proof of that.
Ackerson responded he did not have to prove anything.
Ackerson then telephoned Gordy McGuire to inform him
about what was happening at the meeting. Ackerson reported
to McGuire that Cannon-El and Bauer had stated that they were
not going to listen to the go-to-guy. Cannon-El spoke up and
said, ‘Rick, you’re lying on me, I never said that.” Bauer then
raised his hand and said, “Will didn’t say that, I said that.”
Cannon-El then asked if McGuire could come to the meeting so
they could all discuss the matter in person. Ackerson spoke
with McGuire, hung up the phone, and stated that McGuire was
on his way to the facility. Bauer got up and went back to work.
Cannon-El and the other employees (Young, Korb, and
Metcalf) remained in the breakroom waiting for McGuire to
arrive.
About 10 minutes later, McGuire arrived and headed to the
breakroom. McGuire walked in and started yelling at Cannon-
El, telling him, “Rick is your supervisor. He tells you what to
do. I don’t care who he appoints. You listen to him.” Cannon-
El responded that he never said that he was not going to listen
to Metcalf, and that Ackerson was making false statements. By
this point, McGuire was standing over Cannon-El, their faces
inches apart. Cannon-El asked McGuire if he could back up
and calm down. McGuire responded, “I don’t have to calm
down. Don’t tell me what to do.” Cannon-El leaned away to
create some distance. (Tr. 40–41.)6 By this point, Poff had
returned to the breakroom. (GC Exh. 8.)
Ackerson then raised that the day shift outperformed the
night shift by 4-to-1, and they had the data to prove it. When
Cannon-El asked for proof, Ackerson refused, stating it was
“none of their business.” Cannon-El then brought up that man-

6 After leaving the meeting, Poff went to human resources and
spoke to Deanna Adams, who at the time was a human resources gen-
eralist. Poff informed Adams about his concern that his supervisor,
Ackerson, was telling him to report to Mark Metcalf, not Huck Finn.
Poff explained that he was concerned that he would get disciplined if he
did not report to Finn. (Tr. 273–274.) Adams called Gordy McGuire
on the telephone to tell him what was happening. After Adams hung
up, she informed Poff that McGuire was on his way to the meeting, and
she suggested that Poff return there and talk directly to McGuire. Poff
then left and returned to the employee breakroom. (Tr. 274.)
MEYER TOOL, INC. 5
agement previously had made allegations against night-shift
employees, which were later proven to be false, but nothing
was done to correct the matter. (GC Exh. 8.)
At some point, McGuire turned the topic to Cannon-El being
away from his work area. He told Cannon-El they had him on
video regularly being outside during his shift. Cannon-El again
asked for proof. He explained to McGuire that there were
times he would go outside because one of the machines they
worked on was in a room with no ventilation, and there were
times the air in the room would be so thick with coolant that he
needed to step outside to get fresh air. Cannon-El asked, “I
don’t have the human right just to get some fresh air?”
McGuire answered, “No. The State of Ohio said that the air [in
the facility] is good enough for you to breath, so that’s it.”
McGuire then said “you are just like everybody else.” (Tr.
280.)
Poff spoke up and asked McGuire if Huck Finn was the su-
pervisor, or was he supposed to listen to Metcalf. McGuire
responded that he was to listen to Finn. Poff said that was all
he needed to know. Poff left the breakroom but remained out
in the hallway and was able to overhear the rest of what was
said. (Tr. 41, 276–280.)
According to Poff, McGuire continued to “jump on” Can-
non-El for the concerns he was raising. (GC Exh. 8.) McGuire
then told the employees to get back to work. (Tr. 42–43.) As
Cannon-El was leaving, McGuire stopped him and asked him,
“Do you think it was smart of you and a good worker of you to
disrespect your supervisor the way you did?” Cannon-El then
looked to Ackerson and asked, “Rick, did you think anything
that I did today was disrespectful?” Ackerson responded, “You
did call me a liar.” Cannon-El said, “Rick, you were lying on
me.” Cannon-El then asked McGuire, “Do you think it was
professional of you to get in my face the way you did?”
McGuire responded, “I did not get in your face.” He then
turned to Ackerson and said, “I did not get in his face.” Acker-
son then said to Cannon-El, “He did not get in your face.” (Tr.
43–44.) Cannon-El laughed this off and said, “Oh, I see you
guys can work together just fine.” (Tr. 284.) Cannon-El then
went back to work.7
Later during the shift, Cannon-El, Bauer, and Poff spoke
about the meeting. They discussed their issues, including the
announced new go-to-guy position, the confusion over who
they were to report to, and the way Ackerson and McGuire
handled themselves during the meeting. They agreed that the
next day before work they would go to human resources to file
complaints about what happened. Poff commented to Cannon-
El that the way McGuire spoke to him at the meeting was not

7 Poff, Bauer, and Cannon-El were the only witnesses who testified
about this meeting. Neither Ackerson nor McGuire was called to testi-
fy. I draw an adverse inference against Respondent for failing to pre-
sent Ackerson or McGuire, both admitted statutory supervisors and
agents, to provide testimony regarding the context and contents of this
May 25 departmental meeting. See Roosevelt Memorial Medical Cen-
ter, 348 NLRB 1016, 1022 (2006) (noting an ALJ may draw an adverse
inference from a failure to call a witness who may reasonably assumed
to be favorably disposed to a party, and who could reasonably be ex-
pected to corroborate its version, particularly when the witness is an
agent).
right. (Tr. 287–288.)
Events of May 26
The following day, Cannon-El arrived at Respondent’s hu-
man resources department at around 4:30 p.m. He was the first
of the three to arrive. The human resources department is locat-
ed in a separate building, away from the production areas. It
consists of several small offices on each side of a narrow hall-
way that is approximately 4 feet wide. There is a door on one
end that goes outside, and a set of double doors on the other
end that goes into the reception/lobby area of the building.
Cannon-El had been to human resources before to file com-
plaints, including ones against Ackerson. However, the human
resources employees he usually dealt with were not there, so he
went to Tina Loveless’ office. Loveless is a senior human re-
sources assistant. Cannon-El told Loveless that he was in-
volved in a situation the night before and wanted to file a com-
plaint. She gave Cannon-El a piece of paper and told him to
write his complaint out and return it. As she handed him the
paper, Poff and Bauer arrived. Loveless assumed they were all
together, so she also gave them paper and told them to write out
their statements. (Tr. 517–518.) Cannon-El, Poff, and Bauer
then went in to the training room down the hall to write their
complaints. They did not discuss or review each other’s com-
plaints before submitting them.
Bauer finished first and headed back to hand in his com-
plaint. He saw Deanna Adams, a human resources generalist,
in her office. Adams’ office is approximately 6-by-9 feet, with
a desk in the center of the room, with two chairs in front and
one behind. Bauer took the chair farthest from the door, across
the desk from Adams. Bauer told Adams about the meeting
and his concerns about this new go-to-guy position. Bauer
explained he did not know who he was supposed to listen to,
Metcalf or Finn. The two discussed the matter, and Adams
informed Bauer that if he did not trust Metcalf’s decision mak-
ing, then he should go to Finn because Finn was the boss.8 At
some point, Bauer gave Adams his written complaint.9 (Tr.
178–179.)

8 Bauer testified that Adams had addressed his concerns, but that he
stayed in the room. When asked at hearing why he did not leave, Bauer
responded, “I don’t know. Because we were all together. I believe we
came together, we were going to leave together.” (Tr. 223–224.)
9 In his written complaint, Bauer described the meeting to announce
the new “go-to-guy” position and Metcalf’s selection to fill the posi-
tion, and that he had stated he would not listen to someone that was not
an official supervisor because he needed someone that was going to be
held accountable for making work decisions. Bauer also commented
that Ackerson’s demeanor during the meeting was unprofessional, and
that he was concerned that McGuire was not aware of all of the issues
occurring in the department. In his complaint, Bauer asked certain
questions, including whether he could be punished for refusing to listen
to someone that was not his official boss; whether if the bosses com-
pared employees to one another were they required to provide infor-
mation/numbers to back up what they are saying, or was that slander;
and at what point does a boss step over the line verbally. Bauer added
that he was concerned about retaliation for raising these questions. (GC
Exh. 6.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Poff finished his complaint a few minutes after Bauer.10 He
got up and headed to Loveless’ office. Upon arriving there,
Poff saw that Loveless was helping someone else. He then saw
Bauer sitting and talking to Adams in her office. He went in
and gave Adams his complaint. He stood behind the chair next
to where Bauer was sitting, closest to the door, across from
Adams. Poff began by telling Adams that every time employ-
ees try to report an issue, they are met with opposition. Then,
he told Adams he believed the night-shift employees were be-
ing treated like second-class citizens. He said that the day-shift
employees were making false accusations about second-shift
employees, specifically Cannon-El, not getting their work done,
and that the managers would then yell at the second-shift em-
ployees based on these false accusations. (Tr. 295–296.) Poff
told Adams he had pulled data from the company’s computer
system which proved that it was actually one of the day-shift
employees who had made the false accusations against Cannon-
El that was not getting his work done, and the data showed
Cannon-El was, in fact, getting his work done. (Tr. 296.)
Cannon-El finished his complaint a few minutes after Poff.11
He went to turn it in to Loveless, but saw that she was with
someone. He then saw Bauer and Poff with Adams in her of-
fice, with the door open. Cannon-El walked in and stood just
inside the doorway to her office. Cannon-El asked Adams if he
could ask her a question, and she said yes.12 Cannon-El asked
that if he was filing a complaint against the vice president of
the company, who holds the vice president accountable. Ad-

10 In his written complaint, Poff began by describing what occurred
during the departmental meeting on May 25. The first paragraph
tracked what he already had discussed with Adams the night before.
Poff’s complaint then described what he observed when he returned to
the meeting in the breakroom. Specifically, he described how Acker-
son and McGuire were berating Cannon-El for asking questions, and
how they made false allegations about the night shift’s work perfor-
mance. Poff also noted that when Cannon-El asked them to provide
evidence to support their allegations, McGuire and Ackerson both
refused. Poff noted that Ackerson made a statement that the day shift
outperformed the night shift 4-to-1, and that they had the data to prove
it. When Cannon-El again asked to see it, McGuire and Ackerson said
that it was none of their business. Poff described how Cannon-El had
brought up past allegations that were proven to be false, and nothing
was done to correct the public berating the night-shift employees re-
ceived. Poff addressed his exchange with McGuire about who he
should report to, Finn or Metcalf, and McGuire telling him to report to
Finn. (GC Exh. 8.)
11 In his written complaint, Cannon-El described the May 25 de-
partmental meeting. He described how Ackerson called McGuire dur-
ing the meeting and falsely stated that Cannon-El had indicated that he
was not going to listen to the new go-to-guy, and that Ackerson falsely
alleged that Cannon-El was not doing his job, did bad work, and was
never in his assigned area. Cannon-El noted that when he asked for
these claims to be proven, he was attacked further. He also described
how when McGuire arrived at the facility, he was rude, disrespectful,
and highly unprofessional. Cannon-El described that when McGuire
accused him of regularly being outside during his shift, Cannon-El
explained that it was because of the air quality issues in his work area.
To which, McGuire responded that the State of Ohio considered the air
to be fine, and that he (Cannon-El) was just like everybody else. (GC
Exh. 3.)
12 Prior to this, Adams and Cannon-El had never interacted with one
another.
ams asked what the complaint was about. Cannon-El stated that
the vice president had physically assaulted him. Adams asked
what happened. Cannon-El then explained, demonstrating on
Poff of how McGuire was standing over him, in his face, yell-
ing at him. Adams commented that was not physical assault.
She said that if McGuire did not touch him, it was not physical
assault. Poff spoke up and said it probably was not physical
assault, unless McGuire spat on Cannon-El. But Poff added that
what McGuire did probably was verbal assault. Adams then
told Cannon-El that she was trying to help him by telling him
the law. Cannon-El then smirked at Poff and told Adams he
was not asking her about the law and that she was acting out-
side of her field by telling him the law. Cannon-El then cor-
rected himself and said that McGuire had verbally assaulted or
threatened him during the meeting, and he added he thought it
was racially motivated. Adams asked him what McGuire said.
Cannon-El told her about the exchange in which McGuire said
that he (Cannon-El) “was just like everybody else.” According
to Cannon-El, Adams responded that “race had nothing to do
with it, so just throw that out.” Adams, on the other hand, testi-
fied that she told Cannon-El that she would not consider that a
racial slur, noting that everyone else in Cannon-El’s department
was Caucasian.13 The bottom line was Adams stated she did
not think it was a racist comment.
Cannon-El and Adams continued to go back and forth brief-
ly. As they did, their voices got louder. Adams began repeated-
ly saying “whatever” and motioning with her hands to move the
conversation along.14 Cannon-El smirked again and said, “You
know what, I see we’re not going anywhere. I’m going to add
your name to my complaint because you’re acting very unpro-
fessional, and to me you’re conspiring against me from filing
my complaint.” (Tr. 55.) Cannon-El then stepped into Adams’
office to use her cabinet to write her name and department on
the bottom of his complaint. Adams then told Cannon-El to
leave her office. He took a step back into the hallway but was

13 From someone unfamiliar with Cannon-El, he would appear to be
African-American. However, Cannon-El does not identify himself that
way. He has gone through a process and now identifies himself as
being of Asiatic race and Moorish-American nationality. (Tr. 137–
138.)
14 Adams testified that after she said “whatever” to Cannon-El, he
accused her and the human resources department of being racist, and
that was when she told him to leave her office. Adams testified that
Cannon-El was “loud” and that he was “waving his hands” and “was
using them in the extreme.” She testified she thought that Cannon-El
was “trying to intimidate” her. (Tr. 408–409.) Adams testified that
after she told Cannon-El to leave her office, he became louder and
angrier, and he accused her of unprofessionalism. (Tr. 409–410.) At
which point, she told him to clock out and go home because she was
concerned that he was going to take his anger out on someone on the
production floor. Cannon-El denied being loud, waiving his hands
around, or trying to intimidate Adams. Poff and Bauer confirmed that
Cannon-El and Adams both raised their voices during the exchange, but
they never observed him waiving his hands around or acting in an
intimidating or threatening manner. (Tr. 184–186; 191–192; 305–307.)
Overall, I credit Cannon-El, Poff and Bauer over Adams regarding
Cannon-El’s demeanor, tone, and actions during this exchange, as their
versions largely corroborate one another and are more consistent with
the overall evidence.
MEYER TOOL, INC. 7
still visible from inside the office. At some point during the
exchange, and it is not clear when, Adams telephoned the re-
ceptionist to have her call the police, stating that she had an
employee that would not leave her office. (Tr. 413–414.) From
the hallway near the door to Adams’ office, Cannon-El asked
Adams if he could leave his complaint with her, and Adams
answered “no.” She then told Cannon-El to clock out and go
home. Cannon-El asked her “Why?” or “What did I do?” Ad-
ams told him that he was being very aggressive. Cannon-El
denied being aggressive and stated that he just wanted to file
his complaint. At some point, Adams walked toward Cannon-
El and told him that if he did not leave, she was going to call
the police. Adams then told Cannon-El that she was going to
give him until the count of three to leave, or she was going to
call the police. She then started to count. She began with
“one” and Cannon-El finished with “two, three.” Cannon-El
then said, “I have done nothing wrong.” (Tr. 362.) Adams
then walked passed Cannon-El to head toward the reception
area to ask the receptionist contact the police (again).15 The
period of time between when Adams told Cannon-El to leave
her office to when she left to go to the reception area was very
short; it was estimated to be a couple of minutes. (Tr. 57, 244–
246.)
Cannon-El saw Loveless and asked if he could file his com-
plaint with her. He also asked if she could make a copy for him
to have.16 Loveless took his complaint, made the copy, and
gave it back to Cannon-El. Cannon-El remained in the hallway
and called his sister on his cell phone to ask her to come to
Respondent’s facility, telling her that they had contacted the
police when he tried to file his complaint and he wanted her
there to be a witness when the police arrived. As he was doing
this, Adams was coming back from the opposite direction,
heading to her office. As she passed, Adams said, “If you
would have let it go, none of this would have happened.” She
then informed Cannon-El that she had called the police. (Tr.
58.)17 Adams then headed back into her office. Cannon-El

15 Several witnesses testified that Rick Ackerson was standing in the
hallway of the human resources department on May 26, while this
exchange took place. As previously stated, Respondent did not call
Ackerson to testify. Because of the dispute over what occurred, I have
drawn an adverse inference against Respondent for failing to present
Ackerson. See Roosevelt Memorial Medical Center, supra.
16 At some point, while Loveless was helping another employee in
the training room, Cannon-El came in to gather his belongings that he
left there while writing his complaint. He asked Loveless what Adams’
last name was, and Loveless told him. Cannon-El stated, “Well, she’ll
pay for her actions.” (Tr. 522.) Cannon-El denied making this state-
ment. However, I credit Loveless’ testimony on this point. I find that
Cannon-El was angry at how Adams had treated him when he tried to
raise his complaints, and told her he was going to add her name to that
complaint. When Cannon-El handed his complaint to Loveless it had
Adams’ last name at the bottom. A logical inference is he added it
before he submitted it. (GC Exh. 3.) However, I do not credit Love-
less’ testimony regarding the exchange between Cannon-El and Adams.
She acknowledged she was not present and only overheard portions of
what was said. (Tr. 534–535.)
17 Adams denies making this statement, but I do not credit her deni-
al. Based on the context of their exchange, I believe Adams was frus-
trated with Cannon-El and his insistence that he had been assaulted by
remained in the hallway while he talked to his sister on the
phone, and then he left the human resources department
through the double doors, and went and sat in the lobby en-
trance area.18 As he sat there, he saw Adams go outside and
stand with two other individuals to smoke. After seeing her
outside, Cannon-El decided to remain seated in the lobby en-
trance area.19
According to the police report, the police were called at 5:16
p.m., and officers arrived at Respondent’s facility at 5:30 p.m.20
(R. Exh. 1.) Cannon-El’s sister arrived a minute or two before
the police, and Cannon-El went outside to meet her. The offic-
ers spoke to Adams and Cannon-El, separately. Cannon-El
used his cell phone to record the interaction. He provided the
police with little information. Adams informed the police that
Respondent wanted him to leave the premises. One of the of-
ficers asked her whether Cannon-El had been discharged, and
Adams replied he had not. Thereafter, the police informed
Cannon-El that Respondent wanted him to leave, and he left.
No charges were filed.
Events on around May 27
The following day, Cannon-El went to Respondent’s facility
to pick up his paycheck and to put in a request for leave. He
attempted to gain access to the facility using the thumbprint
scanning system, but it did not work. A night-shift supervisor
met Cannon-El, gave him his paycheck, and told him that Re-

McGuire and that McGuire’s statements were racially motivated. I find
that she made this comment out of frustration about how things had
transpired in her office.
18 It is unclear how long Cannon-El remained in the hallway after
Adams told him the police had been called, or how long he sat in the
lobby entrance area waiting for his sister to arrive.
19 At the hearing, Cannon-El testified that he remained at the facility
because he was “fearful for [his] life” because he did not know what
Adams had reported to the police. (Tr. 58.) When asked why he wait-
ed in the lobby, Cannon-El testified because Adams was outside, and
he “didn’t want to go outside and make a scene, make this a bigger
scene than it was.” He testified that he figured if he sat peaceably,
when the police arrived, they would see that he was not doing anything
wrong. Cannon-El also stated he wanted to be present to hear what
Adams said to police about him. (Tr. 66.)
Poff testified he heard Cannon-El say to his sister on the phone that
he wasn’t leaving until the cops got there because he did nothing wrong
and was just trying to file a complaint. (Tr. 362.) Shireen Flick, a
human resource employee, testified she overheard Cannon-El tell
someone on the phone that he was going to remain there until the police
arrived because he wanted it on record that the company called the
police to escort him out. (Tr. 566–567.) Based on the record evidence
and logical inferences therefrom, I find Cannon-El remained at the
facility because he did not want to be accused of fleeing the scene, and
he wanted to show the police that he was acting peacefully and was
doing nothing wrong. But I also find that he wanted to have it docu-
mented that Respondent called the police to have him removed after he
attempted to file his complaint.
20 It is unclear whether this 5:16 p.m. call to the police was from
when Adams called from her office to have the receptionist contact the
police, or from when Adams left her office to go to the receptionist area
to have her call the police. The police report reflects a second call from
Respondent to the police, requesting an estimated time the police were
going to arrive. (R. Exh. 1.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
spondent did not want him on its premises.21
Thereafter, Cannon-El called Loveless to inquire about his
employment status. Loveless called him back with Nikki Fu-
gate, a training instructor, also on the phone. Loveless and
Fugate informed Cannon-El that they were conducting an in-
vestigation and they would let him know what happens after the
investigation. Cannon-El did not work after May 26.
Respondent’s Investigation and Determination
Respondent later formed a three-member investigative com-
mittee, initially to look into the complaints Poff, Bauer, and
Cannon-El filed regarding the May 25 departmental meeting,
and later (after interviewing Adams) to also examine the events
of May 26. The committee consisted of Fugate, Becky
Schwartz (quality assurance manager), and Paul Rowland
(manufacturing process director). The committee conducted
their investigation from May 31 to June 6. During that time,
the committee obtained written statements and/or conducted
interviews of several witnesses, including Cannon-El, Poff,
Bauer, Adams, Loveless, Ackerson, McGuire, and others.
Cannon-El, Poff, and Bauer each addressed the contents of the
May 25 meeting, the confusion surrounding the go-to-guy posi-
tion, the conduct of Ackerson and McGuire during this meet-
ing, and their decision to go to human resources the next day to
file complaints. Each also discussed the issues the night-shift
employees were having, and that the company seemed to do
nothing about these issues. Each of them also provided the
committee with their recollection of May 26, when they went to
file their complaints.
After completing its investigation, including reviewing all
the statements, the committee prepared written recommenda-
tions and submitted them to Respondent’s owners. The commit-
tee made several recommendations, including: requiring man-
datory group-oriented training for all of the NPI night-shift
employees and Ackerson to help promote a team-oriented envi-
ronment and open communications; and requiring individual-
ized mandatory training for Ackerson (leadership development
and communication with employees), Adams (employee rela-
tions), and McGuire (communication) “because their behaviors
contributed to the escalation of both incidents.” (R. Exh. 8.)
Additionally, the committee recommended the next appropriate
step of disciplinary action should be issued to Poff and Bauer in
light of their refusal to comply with their supervisor’s instruc-
tions and because they both were directly involved in creating
“a negative and argumentative environment” during the May 25
meeting. Finally, the committee recommended that Cannon-El
be terminated, finding that his behavior was intentionally intim-
idating and threatening, and that he escalated the situation by
repeatedly refusing to leave the premises when requested to do
so. There is no explanation as to what the committee found
Cannon-El to have done that was intentionally intimidating or
threatening. Respondent’s owners reviewed the investigative
committee’s findings (including their investigative notes and
witness statements) and adopted their recommendations. On

21 At some point, Ackerson informed night-shift employees that he
did not think Cannon-El would be coming back. (Tr. 344–345.) It is
unclear if Ackerson had information or was simply stating his opinion.
June 10, Respondent informed Cannon-El that he was being
terminated for violating the company’s workplace violence and
other policies. (GC Exh. 5.)22
Legal Analysis
A. Overview
As previously stated, the General Counsel alleges that Re-
spondent took the adverse actions at issue against Cannon-El
because he engaged in protected, concerted activity when he,
Poff, and Bauer made complaints, orally and in writing, related
to Respondent’s creation of the go-to-guy position, the individ-
ual selected for the position, and management’s reaction when
they raised concerns about the alleged need for this new posi-
tion, in violation of Section 8(a)(1) of the Act.23 Respondent
denies the alleged violations, contending that Cannon-El was
not engaged in protected, concerted activity, and that the ac-
tions taken against him were because he engaged in intentional-
ly intimidating and threatening behavior and repeatedly refused
to leave Respondent’s premises when directed to do so. For the
reasons stated below, I find that Cannon-El was engaged in
protected, concerted activity, and Respondent knew of and took
the actions at issue against Cannon-El because of that activity. I
further find that, under the circumstances, Cannon-El’s state-
ments and conduct, including his failure to immediately leave
Respondent’s premises, did not cause him to lose the protection
of the Act.
B. Cannon-El was engaged in protected, concerted activity on
May 25 and 26
Cannon-El was engaged in statutorily protected activity dur-
ing the events at issue. To be protected under Section 7 of the
Act, the employee’s conduct must be both “concerted” and for
the purpose of “mutual aid or protection.” Fresh & Easy
Neighborhood Market, 361 NLRB 151, 153 (2014). The Board
has held that activity is concerted if it is “engaged in with or on

22 On June 13, Respondent issued Poff and Bauer each an employee
warning report (verbal warning) for improper conduct, lack of coopera-
tion/teamwork, and insubordination. The reports each stated that they
were “directly involved in creating a negative and argumentative envi-
ronment during a [May 25] meeting.” (GC Exhs. 7 and 10.) After
these disciplines were issued, both Poff and Bauer were, at different
times, temporarily assigned to other departments. In her posthearing
brief, counsel for General Counsel argues that these temporary reas-
signments were retaliatory or proof of discriminatory motive because
Poff and Bauer engaged in protected, concerted activity on May 25 and
26. I note that there are no allegations in the complaint, and no motions
to amend to include allegations, regarding these disciplines or tempo-
rary reassignments. Moreover, as for the temporary reassignments, the
counsel for General Counsel questioned Poff and Bauer regarding these
reassignments, and each offered his opinion and the basis for his opin-
ion for why they were temporarily reassigned. I find their observations
and opinions are, without more, insufficient evidence to conclude that
these reassignments were retaliatory or otherwise unlawful.
23 Sec. 8(a)(1) of the Act makes it an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in Sec. 7 of the Act. The rights guaranteed in
Sec. 7 include the right “to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.”
MEYER TOOL, INC. 9
the authority of other employees, and not solely by and on be-
half of the employee himself.” Meyers Industries (Meyers I),
268 NLRB 493 (1984), revd. sub nom Prill v. NLRB, 755 F. 2d
941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), on
remand Meyers Industries (Meyers II), 281 NLRB 882 (1986),
affd. sub nom Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988). Concerted activity also
includes “circumstances where individual employees seek to
initiate or to induce or to prepare for group action” and where
an individual employee brings “truly group complaints to man-
agement’s attention.” Meyers II, 281 NLRB at 887. Further-
more, the Board has held it is concerted activity for an individ-
ual to raise a complaint that is a “logical outgrowth” of the
concerns raised with the group. Mike Yurosek & Son, Inc., 306
NLRB 1037, 1038 (1992), after remand, 310 NLRB 831
(1993), enfd., 53 F.3d 261 (9th Cir. 1995).
The question of whether an employee has engaged in con-
certed activity is a factual one based on the totality of record
evidence. National Specialties Installations, Inc., 344 NLRB
191, 196 (2005); and Ewing v. NLRB, 861 F.2d 353 (2d Cir.
1988). The Board had found that “ostensibly individual activity
may in fact be concerted activity if it directly involves the fur-
therance of rights which inure to the benefits of fellow employ-
ees.” Anco Insulations, Inc., 247 NLRB 612 (1980). Converse-
ly, concerted activity does not include activities of a purely
personal nature that do not envision group action or seeking
changes affecting the group. See United Association of Jour-
neymen and Apprentices of the Pipefitting Industry of the Unit-
ed States and Canada, Local 412, 328 NLRB 1079 (1999);
Hospital of St. Raphael, 273 NLRB 46, 47 (1984).
The “concertedness” and “mutual aid or protection” elements
are analyzed under an objective standard, whereby motive for
taking the action is irrelevant. Fresh & Easy Neighborhood
Market, supra, at 153. The Board has noted that employees act
in a concerted fashion for a variety of reasons, some altruistic
and some selfish. Id. citing Circle K Corp., 305 NLRB 932,
933 (1991), enfd. mem. 989 F.2d 498 (6th Cir. 1993). Whether
an employee’s activity is “concerted” depends on the manner in
which his/her actions may be linked to those of his/her cowork-
ers. Fresh & Easy Neighborhood Market, supra at 153.24 The
Supreme Court has observed that “[t]here is no indication that
Congress intended to limit [Section 7] protections to situation
in which an employee’s activity and that of his fellow employ-
ees combine with one another in any particular way.” Id. quot-
ing NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984).
The concept of “mutual aid or protection” focuses on the
goal of the concerted activity; whether the employee or em-
ployees involved are seeking to improve terms and conditions
of employment or otherwise improve their lot as employees.
Fresh & Easy Neighborhood Market, supra at 153 citing East-
ex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). The analysis focus-

24 In Fresh & Easy Neighborhood Market, the Board found that an
employee engaged in concerted activity when she approached cowork-
ers to sign a copy of a reproduction of an offensive whiteboard message
in support of her sexual harassment complaint, even though the
coworkers were annoyed and uncomfortable with her request, and the
employee was acting for selfish reasons.
es on whether there is a link between employee activity and
matters concerning the workplace or employees’ interests as
employees. Id. Although personal vindication may be among
the soliciting employee’s goals, that does not mean that the
soliciting employee failed to embrace the larger purpose of
drawing management’s attention to an issue for the benefit of
all of his or her fellow employees. St. Rose Dominican Hospi-
tals, 360 NLRB 1130, 1134 (2014).
During the May 25 departmental meeting, Cannon-El was
engaged in protected, concerted activity in the classic sense
when, in the presence of Poff, Bauer, and the other NDI em-
ployees, he raised questions and concerns about the newly an-
nounced go-to-guy position, the qualifications of the person
selected to fill the position, and the reasons why management
believed this new position was needed. See generally, Modern
Honolulu, 361 NLRB 228, 229, 2403 (2014) (employee en-
gaged in protected activity at mandatory meeting by raising
questions about supervisors behavior); Avery Leasing, Inc., 315
NLRB 576, 580 fn. 5 (1994) (“where an employee in the pres-
ence of other employees, complains to management concerning
wages, or other terms and conditions of employment, such
complaints constitute protected concerted activity”); and Enter-
prise Products, 264 NLRB 946 (1982) (employee remarks
about an employer’s plan related to wages, hours, and other
terms and conditions of employment found protected and con-
certed). As for this last point, when Cannon-El asked why the
night-shift needed a babysitter, Ackerson and McGuire accused
the night shift generally, and Cannon-El specifically, of under-
performing. Cannon-El disputed those accusations and asked
for proof, which he was denied. Cannon-El pointed out that, in
the past, he and other night-shift employees had disproven
similar allegations, and management did nothing to
acknowledge their error, and now management was again rely-
ing upon false accusations.
During this meeting, Ackerson and McGuire also accused
Cannon-El of frequently being outside during his shift. Can-
non-El responded that if he took breaks outside it was usually
because he needed a break from the fumes caused by the ma-
chines in his area. The Board has held that an employee who
raises safety issues affecting employees is engaged in protected,
concerted activity. St. Bernard Hospital & Health Care Cen-
ter, 360 NLRB 53, 61 (2013). See also NLRB v. Washington
Aluminum Co., 370 U.S. 9 (1962); and Daniel Construction
Co., 277 NLRB 795 (1985). Moreover, Poff testified that prior
to this May 25 meeting, he had raised similar issues with Ack-
erson about the air quality and need for converters for the ma-
chines. Therefore, I find that Cannon-El’s statements were a
continuation of the concerns Poff raised earlier.
On May 26, Cannon-El continued to engage in protected,
concerted activity when he, Poff, and Bauer went to human
resources together to file complaints about what happened dur-
ing the meeting, as well as how management treated the night-
shift employees. Respondent contends that Cannon-El was not
engaged in concerted activity because his concerns were sepa-
rate and distinct from the concerns Poff and Bauer raised. Re-
spondent claims Poff and Bauer spoke to Adams because they
did not know who they were supposed to report to after Acker-
son announced the new go-to-guy position, and that Adams
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
spoke with each of them and satisfactorily addressed their con-
cerns. Respondent argues it was thereafter that Cannon-El
came into Adams’ office wanting to file a complaint alleging
that he had been assaulted by McGuire, and that McGuire had
made a racially offensive comment by telling Cannon-El that he
“was just like everybody else.” Respondent asserts that Can-
non-El’s sole interest was in pursuing these personal concerns.
The Board has held that employees need not present the
same issues or concerns in order for the conduct to be concert-
ed. See Mast Advertising & Publishing, Inc., 304 NLRB 819
(1991) (two employees who went to human resources together,
with one primarily there as a witness, regarding concerns relat-
ed to terms and conditions of employment were engaged in
protected, concerted activity). Concertedness “is not dependent
on a shared objective or on the agreement of one’s coworkers
with what is proposed.” Fresh & Easy Neighborhood Market,
supra at 153. An employee “may act partly from selfish moti-
vations and still be engaged in concerted activity, even if [the
employee] is the only immediate beneficiary of the solicita-
tion.” Id. Furthermore, the Board has held that ““[w]here an
employee’s objectives in taking certain action may be mixed,
and one supports a finding of concertedness, [the Board] may
not ignore it in favor of one that does not.” Id. As a result, Poff
and Bauer did not have to agree with Cannon-El or join his
cause in order for his activity to be concerted, nor did they have
to share an interest in the matters he raised for the activity to be
concerted.
That being said, I find they did share an interest in the mat-
ters Cannon-El raised with Adams. Cannon-El, Poff, and Bau-
er went to human resources with concerns over how manage-
ment was communicating with employees, whether it was the
information being shared or how it was communicated. Adams
was already aware of some of the issues because of her conver-
sation with Poff the night before, and she also was aware that
McGuire was coming back to the facility to talk to employees
about these issues. When Bauer spoke with Adams on May 26,
it was clear that he shared the same concerns that Poff had
raised the night before. But when Poff spoke with Adams
again on May 26, in the presence of Bauer, he provided her
more information and context. He explained how, in his opin-
ion, the night-shift employees were being singled out with this
go-to-guy position, and that management was treating them like
second-class citizens. He also informed her that the day-shift
employees were making false accusations that certain second-
shift employees, like Cannon-El, were not getting their work
done, and that management was relying on that false infor-
mation to berate the second-shift employees. Poff also told
Adams that it seemed like every time the night-shift employees
tried to report an issue, they were met with opposition. It was
at this point that Cannon-El came in and told Adams that he
wanted to file a complaint against McGuire for his conduct the
night before. When Cannon-El explained to Adams what
McGuire had said and done, Cannon-El demonstrated on Poff,
claiming it was physical assault. Poff opined that it may not
have been physical assault, but that McGuire had verbally as-
saulted Cannon-El. Cannon-El then brought up how he be-
lieved that McGuire was racially biased based on what he had
said. Although Poff had brought up how he believed manage-
ment was biased based on what shift employees worked, and
Cannon-El believed that management was racially biased, I find
that they both, within a matter of a few minutes, informed hu-
man resources of at least perceived biases on the part of man-
agement.25 All of which, I find, is more than sufficient to con-
stitute protected, concerted activity.
Moreover, even if, as Respondent argues, Cannon-El was fil-
ing an individual complaint on May 26 about how he personal-
ly was treated during the May 25 meeting, I find that such a
complaint constitutes concerted activity because it is the “logi-
cal outgrowth” of the concerns he and others raised during the
meeting the night before. Consumers Power Co., 282 NLRB
130, 131-132 (1986) (finding that even if employee had acted
alone, his individual complaint would have been concerted
because it was a continuation of his and his coworkers’ earlier
concerted complaints raised at the employer’s weekly meet-
ings); and JMC Transport, 272 NLRB 545 fn. 2 (1984), enfd.
776 F.2d 612 (6th Cir. 1985) (finding an employee’s pay pro-
test concerted because it was “a continuation of protected con-
certed activity” involving a meeting wherein two employees
jointly complained to management about wage payments). The
complaint Cannon-El wanted to file with Adams, and later filed
with Loveless, arose from how he was treated by Ackerson and
McGuire after he raised collective concerns affecting the em-
ployees’ terms and conditions of employment (e.g., the role and
duties of the go-to-guy position, false accusations against the
night shift, the air quality concerns, etc.).
In light of the overall circumstances, I find that Cannon-El
was engaged in protected, concerted activity prior to and during
his interaction with Adams on May 26. Respondent certainly
was aware of Cannon-El’s protected, concerted activity by the
end of its investigation, and that activity is what led Respondent
to take the adverse employment actions at issue.
C. Cannon-El did not lose the protection of the Act
There is no dispute Respondent took the actions at issue be-
cause of Cannon-El’s statements and conduct on May 26.
When an employee is disciplined or discharged for conduct that
is part of the res gestae of protected, concerted activity, the
question is whether the conduct is sufficiently egregious or

25 Respondent argues that Adams was not aware of any protected,
concerted activity because she did not read the written complaints that
Cannon-El, Bauer, or Poff submitted, and she was not on the investiga-
tive committee that recommended the adverse actions against Cannon-
El. I find that, regardless of whether she read the complaints, Adams
was aware of Cannon-El’s protected, concerted activity based on what
was said in her office on May 26. Moreover, even if Adams was some-
how in the dark, I find that Respondent’s investigative committee was
not. Nikki Fugate testified that the committee had written and oral
statements from all of the individuals involved, including from Poff,
Bauer, and Cannon-El, which covered their collective concerns related
to the need for the go-to-guy position, the air quality issues, and man-
agement’s overall treatment of the night-shift employees, particularly
Cannon-El. The committee had this information at the time it made its
recommendation (which was ultimately followed) to suspend and later
discharge Cannon-El. In light of the foregoing, I find the investigative
committee had all the information regarding Cannon-El’s protected,
concerted activity at the time it made its recommendations.
MEYER TOOL, INC. 11
opprobrious to remove it from the protection of the Act.26
Stanford Hotel, 344 NLFB 344, 358 (2005). The Board recog-
nizes that employees are permitted some leeway for impulsive
behavior when engaged in protected activity, because the “pro-
tections Section 7 afford would be meaningless were we not to
take into account the realities of industrial life and the fact that
disputes over wages, hours, and working conditions are among
the disputes most likely to engender ill feelings and strong re-
sponses.” Consumer Power Co., 282 NLRB 130, 132 (1986).
But this leeway is balanced against “an employer’s right to
maintain order and respect.” Piper Realty, 313 NLRB 1289,
1290 (1994). To determine whether an employee loses the
Act’s protection, the Board balances the following four factors:
(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by the employ-
er’s unfair labor practices. Atlantic Steel Co., 245 NLRB 814
(1979). In assessing whether the employee’s conduct removed
the protections of the Act, the asserted impropriety “cannot be
considered in a vacuum” nor “separated from what led up to it.”
NLRB v. Thor Power Tool, Co., 351 F.2d 584, 586 (7th Cir.
1965); Emarco, Inc., 284 NLRB 832, 834 (1987).
The first Atlantic Steel factor looks to the place of the discus-
sion. In evaluating the place of the discussion, the Board con-
siders the circumstances, such as whether it occurred in the
work area or during work time, was observed by other employ-
ees or customers, caused a disruption in the employer’s opera-
tions, and/or undermined workplace discipline. See generally,
Kiewit Power Constructors Co., 355 NLRB 708 (2010) (fa-
vored protection where employer determined the location by
distributing warnings in a work area during work time, and in
front of other employees); Datwyler Rubber & Plastics, Inc.,
350 NLRB 669, 670 (2007) (favored protection where discus-
sion took place away from customary work area); Noble Metal
Processing, Inc., 346 NLRB 795, 800 (2006) (favored protec-
tion where outburst occurred during meeting held away from
work area causing no disruption to the work process); Daim-
lerChrysler Corp., 344 NLRB 1324, 1329 (2005)(did not favor
protection where disruption occurred in a work area and was
overheard by other employees); and Beverly Health & Reha-
bilitation Services, 346 NLRB at 1322, fn. 20, 1323 (favored
protection when confrontation was not overheard by patients or

26 The legal framework generally used to evaluate whether an ad-
verse employment action violates Sec. 8(a)(1) of the Act is set forth in
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the
General Counsel must make an initial showing that the employee’s
protected activity was a substantial or motivating factor for the employ-
er’s adverse employment decision, which requires: (1) the employee
engaged in protected concerted activity; (2) the employer had
knowledge of that activity, and (3) the employer had animus towards
the protected activity. If the General Counsel makes the required initial
showing, then the burden shifts to the employer to prove that it would
have taken the same action in the absence of the employee’s protected
activity. However, the Wright Line framework is not applied where, as
here, there is no dispute that the employer took the adverse action in
response to conduct that occurred while the employee was engaged in
protected activity. Phoenix Transit System, 337 NLRB 510, 510
(2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003).
nonemployees).
The exchange at issue occurred in Respondent’s human re-
sources department, which is in a separate building, away from
production areas. Like most employers, Respondent expects its
employees to go to human resources with workplace questions
or concerns. Human resources often deals with disputes over
wages, hours, and working conditions, and, as previously stat-
ed, these disputes are among the most likely to engender ill
feelings and strong responses, including expressions of fear,
anger, or frustration. For these reasons, I find that, akin to
grievance meetings, a human resources department is a forum
in which employees should be afforded greater latitude to ex-
press their views. See Mast Advertising & Publishing, Inc.,
supra at 819 (two employees going to human resources at a
non-union company about a complaint tantamount to filing a
grievance); Stanford Hotel, supra; Winston-Salem Journal, 341
NLRB 124, 126 (2004); Spann Maintenance Co., 289 NLRB
915, 920 (1988); and Crown Central Petroleum Corp., 177
NLRB 322 (1969), enfd. 430 F.2d 724 (5th Cir. 1970).
Although Cannon-El’s conduct had no effect on production,
it did occur in the presence of other human resources employ-
ees who heard loud voices and saw Cannon-El in the hallway
on his phone. One of these other employees later reported to
Respondent that it caused her to feel unsafe. But all of these
other employees continued working, with their doors open.
Based on the overall evidence, I find the location of the discus-
sion was reasonable under the circumstances and favors contin-
ued protection, even though it was overheard by other human
resource employees.27
I find that the second Atlantic Steel factor—the subject mat-
ter of the discussion—also favors protection. As previously
stated, Cannon-El was engaged in protected, concerted activity
when he went with Poff and Bauer to file complaints about
what happened the night before. The exchange began when
Cannon-El asked Adams a question related to the complaint he
wanted to file about the treatment he received from Ackerson
and McGuire when he raised collective concerns during the
meeting. The exchange that followed revolved around how the
treatment that he received should be perceived, and what could
or would be done about it.28 In light of the foregoing, I find
that the nature and purpose of Cannon-El’s discussion with
Adams, with both Poff and Bauer present, favors protection.
Datwyler Rubber & Plastics, 350 NLRB at 630 (outburst of
employee occurred during discussion of employee complaints
about terms and conditions of employment, and weighs in favor
of protection).
I find the third Atlantic Steel factor--the nature of the out-

27 While the location of Cannon-El’s comments and behavior to-
ward Adams—an admitted supervisor—could be viewed as undermin-
ing her authority and workplace discipline, I find, and will discuss more
fully herein, that Adams was at least equally as responsible for the
escalation of their exchange by her statements and conduct when Can-
non-El attempted to explain the basis for his complaints.
28 In his written complaint, Bauer also asked “at what point does a
boss step over the line verbally?” (GC Exh. 6.) He, Poff, and Cannon-
El each told the investigative committee about their concerns with how
McGuire and Ackerson responded when employees asked questions or
raised concerns.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
burst—favors protection. In assessing whether an employee’s
protected, concerted activity loses the protection of the Act, the
Board has held that a line “is drawn between cases where em-
ployees engaged in concerted activities that exceed the bounds
of lawful conduct in a moment of animal exuberance or in a
manner not motivated by improper motives and those flagrant
cases in which the misconduct is so violent or of such a charac-
ter as to render the employee unfit for further service.” Prescott
Industrial Products Co., 205 NLRB 51, 51–52 (1973). The
nature of the outburst must be examined in the context in which
it occurred. NLRB v. Thor Power Tool, Co., supra. The Board
uses an objective standard, rather than a subjective standard, to
determine whether the conduct in question is threatening. Pla-
za Auto Center, Inc., 360 NLRB 972, 975 (2014).
Respondent contends that Cannon-El engaged in intentional-
ly intimidating and threatening behavior during this exchange,
but it failed to articulate specifically what constituted such be-
havior.29 I find that Cannon-El did not use profanity, engage in
any physically intimidating conduct, or make any threats of
physical harm.30 He did, however, act defiantly when he fin-
ished Adams’ count to three when she threatened to call the
police if he did not leave, and when he briefly remained in the

29 According to Nikki Fugate, there were two individuals who re-
ported feeling threatened by Mr. Cannon-El’s statements and conduct:
Adams and Shireen Flick. (Tr. 617–618.) Flick testified that she never
heard what Adams or Cannon-El said during their exchange, only that
she heard loud voices in the hallway, Flick also testified to hearing
Cannon-El tell someone (his sister) on the phone that he was going to
wait until the police arrived so that he could have it documented that
the company called the police to escort him out. Respondent relied
upon these two employees’ subjective opinions about feeling unsafe to
take the actions it did against Cannon-El. However, Loveless was
asked if she felt threatened or unsafe by Cannon-El’s conduct, and she
said she did not. Poff and Bauer also informed Respondent that they
did not feel as though Cannon-El engaged in any threatening conduct or
conduct that warranted discipline. Applying an objective standard, I
conclude based on the entire chain of events that Cannon-El did not
engage in intentionally intimidating and threatening behavior.
30 Respondent contends that Cannon-El threatened physical harm
when he told Loveless that Adams would “pay for her actions.” Again,
based on the context in which it was said, I do not interpret this state-
ment as a threat of physical harm. Cannon-El told Adams during their
exchange that based on her responses to his questions he was going to
add her name to his complaint because he thought that she was conspir-
ing to keep him from filing his complaint. Thereafter, Cannon-El went
into the training room to retrieve his belongings, and he saw Loveless
and asked her what Adams’ last name was. After Loveless told him
Adams’ last name, he said, “Well, she’ll pay for her actions.” He did
not say anything else. At some point, Cannon-El wrote Adams’ first
and last name onto his complaint. Under these circumstances, I do not
find that Cannon-El was threatening Adams with physical harm, but
rather he was threatening to include her in his complaint. [At some
point, Cannon-El filed a separate lawsuit alleging discrimination.
There are references to the lawsuit, and the deposition he provided, in
the record.] Without more, I do not find that this vague statement con-
stituted a threat sufficient to cause Cannon-El to lose the protection of
the Act. See Kiewit Power Corp., 355 NLRB 708, 710 (2012) (telling
supervisors that the situation could “get ugly” and that supervisor “bet-
ter bring his boxing gloves” did not lose the protection of the Act).
hallway after she instructed him to leave.31
In evaluating the nature of an employee’s outburst or mis-
conduct, the Board considers whether it was the result of em-
ployer provocation. Plaza Auto Center, Inc., supra at 979. I
find Cannon-El’s conduct at issue was in direct response to
Adams’ seemingly dismissive reaction to his complaints, her
demands that he leave, and her threats to call the police if he
did not.32 Both Poff and Bauer confirmed that Cannon-El’s
demeanor was calm at the outset. It only changed after Adams
began saying “whatever” when he tried to explain himself and
press forward with his complaint. The situation further escalat-
ed when, in rather rapid succession, she demanded that Can-
non-El leave her office, told him to clock out and leave for the
day, and threatened to call the police if he did not leave. It was
at this point that Cannon-El, acting out of frustration and disbe-
lief, finished Adams’ count to three and remained briefly in the
hallway to ask Adams if he could file his complaint, what had
he done wrong, and why he had to leave.33 I find that Cannon-
El would not have engaged in this conduct--which ultimately
resulted in the adverse actions at issue--but for Adams’ provo-
cation, particularly her threats to involve the police. Moreover,
I note that there is no evidence that Cannon-El had ever en-
gaged in any even remotely similar conduct during his em-
ployment, and there is no evidence that his conduct was pre-
meditated. See id. See also Felix Industries, Inc., 339 NLRB at
196-197 (absence of prior similar misconduct coupled with
timing of outburst supports that outburst would not have oc-
curred but for supervisor’s expression of hostility towards em-
ployee’s protected conduct).
Respondent contends that the adverse employment actions
were taken because Cannon-El was being insubordinate. The
Board distinguishes between true insubordination and behavior
that is only disrespectful, rude, and defiant. Goya Foods, Inc.,
356 NLRB 476, 478 (2011), citing Severance Tool Industries,
301 NLRB 1166, 1170 (1991), enfd. mem 953 F.2d 1384 (6th
Cir. 1992). In Goya Foods, an employee was present for a
heated discussion among employees and union agents in the
employee cafeteria. A supervisor nearby overheard loud voices
and told the employee to leave the cafeteria. The employee
refused. The supervisor loudly repeated his instruction to leave
the area, to which the employee loudly replied (in Spanish) to
“come and take me out.” The supervisor then directed the em-
ployee to punch out and go home. The employee initially ei-

31 Respondent contends that Cannon-El raised his voice during the
exchange. However, Poff and Bauer confirmed that both Cannon-El
and Adams raised their voices during the exchange. Regardless, the
Board has held that merely speaking loudly or raising one’s voice in the
course of protected activity generally does forfeit of the Act’s protec-
tion. Crowne Plaza LaGuardia, 357 NLRB 1097, 1101 (2011).
32 Respondent ultimately found that Adams was partially responsi-
ble for escalating the incident and recommended that she be required to
receive individual training on employee relations. (R. Exh. 8.)
33 Respondent contends that the exchange escalated after Cannon-El
accused Adams, the human resources department, and the company as a
whole of being racist. While such an accusation is serious, it is not so
inflammatory as to lose the protection of the Act. See Winston-Salem
Journal, 341 NLRB 124, 126 (2004), enf. denied 394 F.3d 207 (4th Cir.
2005).
MEYER TOOL, INC. 13
ther sat down or said he would sit down, but he eventually got
up and left. The Board found that while the employee engaged
in disrespectful, rude, and defiant behavior, it was not the sort
of insubordination that lost the Act’s protection. Id.
Similarly, in Postal Service, 360 NLRB 677 (2014), the
Board found that a union steward did not lose the protection of
the Act when during a confrontation with a supervisor he defied
repeated instructions to leave the area. The steward wanted to
file a grievance and he requested union time to do so. The su-
pervisor asked for more information about the grievance, and
the steward refused, stating that he was not obligated to provide
any more information. The supervisor asked if he was trying to
say that she did not know the contract, and the steward replied
he did not think that she did. A confrontation ensued, and the
supervisor told the steward to leave the area. The steward re-
fused. The supervisor repeated, at least once, that she was giv-
ing him a direct order, and the steward repeated his response.
The steward then moved in closer, said that he was not going to
follow the supervisor’s order, and pointed his finger at her. The
supervisor then got up from her desk and said that she was
calling the police, which she did. The steward then returned to
his work station. The police arrived, and the steward was later
discharged. The Board, in adopting the administrative law
judge’s findings, concluded that the nature of the steward’s
outburst, including his defiant refusal to leave the area, did not
cause him to lose the protection of the Act. In that case, the
judge found that, under the circumstances, the supervisor’s
calling the police “was wholly unjustified and a gross over-
reaction to their argument.” Id. at 684.34
Overall, I find that while Cannon-El was engaged in disre-
spectful, rude, and defiant behavior when he finished Adams’
count to three and when he briefly remained after being told to
leave, he was not engaged in the sort of misconduct that is so
violent or of such a character as to render him unfit for further
service. As previously stated, the employee’s conduct must be
examined in the context in which it occurred. NLRB v. Thor
Power Tool, Co., supra. I find that because Adams provoked
Cannon-El’s response, and the amount of time between when
Adams first told Cannon-El to leave her office and when she
went to the reception area to have the police called was a matter
of a few minutes, the circumstances do not support finding that
Cannon-El lost the protection of the Act.
Respondent argues that I also should consider the time Can-
non-El remained in the hallway and lobby reception area after
Adams informed him that she contacted the police, as further
evidence of insubordination. I decline to do so. By the time
Adams informed Cannon-El that the police were on their way,
he had basically ceased interacting with anyone in the human
resources area. He called his sister to request that she come

34 In Mast Advertising & Publishing, Inc. 304 NLRB 819, 826
(1991), an employee attending a meeting in human resources with
another coworker was asked to leave after she made repeated interrup-
tions and profane outbursts. She refused twice but eventually complied
3 to 5 minutes later. After she left the room, she engaged in a conversa-
tion in the hallway near where the meeting was taking place. Her sub-
sequent suspension was, in part, because of her refusal to leave. The
Board found she was engaged in protected, concerted activity and did
not lose the protection of the Act by her statements or conduct.
down to be his witness when the police arrived, and then he
went and sat down in the lobby reception area. As Cannon-El
testified, once he knew the police were on their way, he re-
mained at the facility because he did not want to be accused of
fleeing the scene, and he wanted the police to see that he was
acting peacefully and not doing anything wrong. He also testi-
fied that he waited in the lobby rather than go outside because
he saw Adams outside smoking a cigarette, and he did not want
to have a “bigger scene.” All of which I find to be reasonable
under the circumstances. Similar to Postal Service, supra, I
find that but for Adams’ overreaction to the questions and con-
cerns raised in her office, the police would not have been
called. But once Cannon-El knew the police had been called,
and without knowledge as to what Adams had reported to them,
it was prudent for Cannon-El to remain at the facility, away
from others, as opposed to leaving.35
The fourth Atlantic Steel factor is whether the misconduct
was provoked by the employer’s unfair labor practices. This
does not require that the employer’s conduct be explicitly al-
leged as an unfair labor practice, but rather includes conduct
evincing intent to interfere with protected rights. Postal Ser-
vice, supra, citing Network Dynamics Cabling, Inc., 351 NLRB
1423, 1429 (2007), and Overnite Transportation Co., 343
NLRB 1431, 1438 (2004). In this case, during the May 25
meeting, Ackerson and McGuire both harassed Cannon-El in
response to him raising collective concerns. It was, in part, this
harassment that led Cannon-El, Poff, and Bauer to go to human
resources the following day to file their complaints. Then, after
Cannon-El continued to persist in asserting the basis for his
complaint, Adams demanded that he leave and threatened to
call the police if he did not do so, which I already have found
provoked the conduct at issue. Based on this evidence, I find
the fourth factor favors protection.
In summary, I conclude that all four Atlantic Steel factors,
individually and in the aggregate, favor Cannon-El’s protection
under the Act.36 Accordingly, I conclude that the Respondent
violated Section 8(a)(1) of the Act by contacting the police to
remove him from the premises on May 26, indefinitely sus-
pending him on around May 26, and terminating him on June
10.37

35 The fact that Cannon-El also wanted proof that Respondent con-
tacted the police to escort him out because he attempted to file a com-
plaint does not, in my opinion, negate his other reasons for staying.
36 Even if I found the third factor did not favor protection, Cannon-
El would still retain the protection of the Act under the Atlantic Steel
test because the other three factors strongly favor protection. See Post-
al Service, 360 NLRB 677 fn. 2 (2014) (citing to Kiewit Power Con-
structors Co. v. NLRB, 652 F.3d 22, 27 fn. 1 (D.C. Cir. 2011) (“It is
possible for an employee to have an outburst weigh against him yet still
retain protection because the other three factors weigh heavily in his
favor.”)).
37 Although Wright Line does not apply in this case, I find that the
result would be the same if it did. As previously stated, Cannon-El was
engaged in protected, concerted activity on May 25 and 26; Respondent
was aware of that activity; and Adams’ statements on May 26, includ-
ing her seemingly dismissive responses, her ordering him to leave, and
her threat to call the police when he continued his protected, concerted
activity, is evidence of animus. Respondent has failed to prove that it
would have taken the same action in the absence of the Cannon-El’s
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
CONCLUSIONS OF LAW
1. The Respondent, Meyer Tool, Inc., is an employer en-
gaged in commerce out of its Cincinnati, Ohio facility within
the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of
the Act that affect commerce within the meaning of Section
2(6) and (7) of the Act:
(a) Summoned the police to remove William Cannon-El, III,
from it premises.
(b) Suspended indefinitely William Cannon-El, III.
(c) Terminated William Cannon-El, III.
REMEDY
Having found that the Respondent violated Section 8(a)(1) of
the Act by summoning the police to remove, indefinitely sus-
pending, and later discharging William Cannon-El, III, because
he engaged in protected, concerted activities, I recommend an
order requiring that Respondent offer him full reinstatement to
his former job or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed, and to make
him whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). In
accordance with the recent decision in King Soopers, Inc., 364
NLRB No. 93 (2016), Respondent shall compensate Cannon-El
for his search-for-work and interim employment expenses re-
gardless of whether those expenses exceed interim earnings.
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra. Addi-
tionally, Respondent shall be required to compensate William
Cannon-El, III, for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and to file with the Re-
gional Director for Region 9, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board or-
der, a report allocating the backpay award to the appropriate
calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).38 Finally, Respondent shall be ordered to remove

protected activity, because there is no evidence that Respondent treated
another employee similarly. There is no evidence that an employee
was suspended or discharged for a single occurrence of allegedly
threatening or insubordinate behavior. Each of the examples in the
record involved repeated acts of harassment, threats, or insubordina-
tion—and in some of those instances, the employee was not discharged.
(R. Exh. 4.) If anything, these examples show Respondent treated
Cannon-El differently than it treated other employees, and evidence of
disparate treatment supports a finding of animus. Camaco Lorain Mfg.
Plant, 356 NLRB 1182, 1186 (2011). This is particularly true where
there is no evidence of any prior discipline to Cannon-El.
38 The General Counsel argues Cannon-El is entitled to consequen-
tial damages. I cannot order Respondent to pay consequential damages
for costs Cannon-El may have incurred as a result of Respondent’s
from its files any reference to contacting the police, indefinitely
suspending, and discharging William Cannon-El, III, and to
notify him in writing that this has been done and that none of
these adverse actions will be used against him in any way.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended39
ORDER
Respondent, Meyer Tool, Inc. at its Cincinnati, Ohio facility,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Summoning the police to remove, indefinitely suspend-
ing, discharging, or otherwise discriminating against employees
because they engage in protected, concerted activity.
(b) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights listed above.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order,40 of-
fer William Cannon-El, III, reinstatement to his former job,
remove from its files all references to summoning the police to
remove, indefinitely suspending, and/or discharging William
Cannon-El, III, and notify him in writing that this has been
done, and that none of these adverse actions will be used
against him in any way. Make William Cannon-El, III, whole
for any loss of earnings and other benefits resulting from his
unlawful suspension and discharge, less any net interim earn-
ings, plus interest, plus reasonable search-for-work and interim
employment expenses.
(b) Within 14 days after service by the Region, post at its
facilities in Cincinnati, Ohio copies of the attached notice
marked Appendix A. Copies of the notice, on forms provided
by the Regional Director for Region 9 after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places throughout its Cincinnati, Ohio facility, includ-
ing all places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or

unfair labor practices. As the Board has recognized, it would require a
change in Board law for me to award consequential damages. See, e.g.,
Guy Brewer 43 Inc., 363 NLRB No. 173, slip op. at 2 fn. 2 (2016).
Since I must follow existing Board law, and current law does not au-
thorize me to award consequential damages, the General Counsel must
direct its request to the Board.
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
40 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.”
MEYER TOOL, INC. 15
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has closed cer-
tain facilities 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 employed
by the Respondent at any time since May 25, 2016.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., June 12, 2017
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union;
Choose a representative to bargain with us on your be-
half;
Act together with other employees for your benefit and
protection;
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT summon the police to remove, suspend, dis-
charge, or otherwise discriminate against you because you en-
gage protected, concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL offer William Cannon-El, III, full reinstatement to
his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
WE WILL make William Cannon-El, III, whole for any loss of
earnings and other benefits resulting from his unlawful suspen-
sion and discharge, less any net interim earnings, plus interest,
plus reasonable search-for-work and interim employment ex-
penses.
WE WILL compensate William Cannon-El, III, for the adverse
tax consequences, if any, of receiving a lump sum backpay
award, and WE WILL file a report with the Social Security Ad-
ministration allocating the backpay award to the appropriate
calendar quarters.
WE WILL remove from our files any reference to our unlawful
summoning of the police, suspension, and discharge of William
Cannon-El, III, and we will notify him in writing that this has
been done and that the contacting of the police, suspension, and
discharge will not be used against him in any way. WE WILL
NOT do anything to prevent you from exercising the above
rights.
MEYER TOOL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09–CA–185410 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.