Mid-South Electronics, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 9, 2003

09-CA-040301 (N.L.R.B. Dec. 9, 2003)

JD(ATL)–83–03
Annville, KY

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

MID–SOUTH ELECTRONICS, INC.

and CASE 9–CA–40301

TEAMSTERS LOCAL UNION NO. 783,
affiliated with the INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
AFL–CIO

Kevin P. Luken, Esq.,
for the General Counsel
Mr. James Thomason,
of Louisville, Kentucky,
for the Charging Party
R. Kent Henslee, Esq.,
(Henslee, Robertson, Strawn
and Knowles, L.L.C.) ,
of Gadsden, Alabama,
for the Respondent

BENCH DECISION AND CERTIFICATION

Statement of the Case

KELTNER W. LOCKE, Administrative Law Judge: I heard this case on October 29,
2003 in London, Kentucky. After the parties rested, I heard oral argument, and on October 30,
2003, issued a bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing this decision.1 The Conclusions of Law, and Order
provisions are set forth below.

1 The bench decision appears in uncorrected form at pages 237 through 250 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–83–03

CONCLUSIONS OF LAW

1. The Respondent, Mid–South Electronics, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
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2. The Charging Party, Teamsters Local Union No. 783, affiliated with the
International Brotherhood of Teamsters, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.

3. The Respondent violated Section 8(a)(1) of the Act as alleged in paragraph 6 of
the Complaint and Notice of Hearing but did not otherwise violate the Act.

4. The unfair labor practice described in paragraph 3, above, affects commerce
within the meaning of Section 2(6) and (7) of the Act, but is isolated and de minimus.

5. Further action in this matter would not effectuate the purposes and policies of the
Act.

On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended2

ORDER

The Complaint is dismissed.

Dated Washington, D.C.

________________________________________
Keltner W. Locke
Administrative Law Judge

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
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Appendix A

Keltner W. Locke, Administrative Law Judge. This is a bench decision issued pursuant to
Section 102.35(a)(10) and Section 102.45 of the Board’s Rules and Regulations. The complaint
alleges two violations of Section 8(a)(1) of the Act. I find that the first of these alleged
violations did not occur. Although I find that the second did take place, I conclude that it was
isolated and de minimus.
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Procedural History

This case began on June 10, 2003, when the Charging Party, Teamsters Local Union
Number 783, affiliated with the International Brotherhood of Teamsters, AFL–CIO, filed its
initial charge in this proceeding. I will refer to the Charging Party as the “Union.”

On August 13, 2003, the Union amended its unfair labor practice charge. On August 29,
2003, after investigation of the charge, the Regional Director for Region 9 of the National Labor
Relations Board issued a Complaint and Notice of Hearing, which I will call the “Complaint.”

In issuing this complaint the Regional Director acted on behalf of the General Counsel of
the Board, whom I will refer to as the “General Counsel” or as the “government.” Respondent
filed a timely answer to the complaint. On October 29, 2003, a hearing in this matter opened
before me in London, Kentucky. After all parties rested, Counsel presented oral argument.
Today, October 30, 2003, I am issuing this bench decision.

Undisputed Matters

In its answer, Respondent has admitted many of the allegations raised by the complaint.
Based on these admissions, I find that the Government has proven the allegations set forth in
Complaint Paragraphs 1(a) and 1(b), 2(a), 2(b) and 2(c), 3 and 4.

More specifically, I find that Respondent is a corporation which manufactures
refrigerator ice makers in its facility in Annville, Kentucky. At all times material to this case,
Respondent has been an employer engaged in commerce within the meaning Sections 2(2), (6)
and (7) of the Act, and thereby falls within the Board’s statutory jurisdiction. Additionally,
based upon its purchase and receipt of goods directly from sources outside the State of Kentucky,
I conclude that Respondent satisfies the Board’s discretionary standards for the assertion of
jurisdiction.

Based on the admissions in Respondent’s answer, I find that at all material times, the
union has been a labor organization within the meaning of Section 2(5) of the Act. Also based
on Respondent’s admissions, I find that at all material times, Human Resources Manager Frank
D. Elkins and Second Shift Superintendent John L. Neely were Respondent’s supervisors and
agents within the meaning of Sections 2(11) and 2(13) of the Act, respectively.

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Disputed Allegations

The Complaint alleges that Respondent violated Section 8(a)(1) of the Act by two
specific actions described in Complaint paragraphs 5 and 6. Respondent has denied these
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Complaint paragraph 5 alleges as follows: “About May 28, 2003, Respondent, by John
L. Neely, at its Annville, Kentucky facility, threatened an employee with physical harm for
engaging in protected concerted activity.”

Complaint paragraph 6 alleges as follows: “About May 29, 2003, Respondent, by Frank
D. Elkins, at its Annville facility, threatened an employee with unspecified reprisals in order to
discourage the employee from engaging in protected concerted activity.”

The remaining disputed complaint paragraphs allege that these actions constituted unfair
labor practices effecting commerce and violate Section 8(a)(1) of the Act.

Credibility of Witnesses

In this case various witnesses gave markedly conflicting testimony. The case turns on
which witnesses were telling the truth. Therefore it may be helpful to begin by evaluating their
credibility.

The General Counsel’s main witness, Dorothy Baker, gave testimony supporting both of
the 8(a)(1) allegations. Baker participated in the Union’s campaign to organize Respondent’s
workers. She described an incident which took place on May 28, 2003, near the assembly line
on which she works.

Another employee, Virgil Hollan, had initiated a conversation wit Superintendent Neely,
and was asking Neely about unions. Baker overheard part of this conversation from her work
station and she testified that she “hollered over and tell him you can not trust a salaried man to
answer a Union question.”

According to Baker, Superintendent Neely came over to her and stood so close that his
nose and hers were only a hands–breadth apart. She testified that he pointed his finger at her and
said “You’d better shut that mouth. We don’t pay you for running your mouth. You shut that
mouth or I’ll bust your face.” This is the conduct alleged in Complaint paragraph 5.

However, I do not have confidence in Baker’s testimony and do not credit it. I base that
decision in part on my observations of Baker’s demeanor as she testified. During much of her
testimony, Ms. Baker’s voice sounded tremulous, suggesting a level of apprehension beyond the
degree of anxiety a witness typically manifests on the stand.

However, when Ms. Baker described how Neely spoke to her during this confrontation,
she became loud and dramatic. This shift in tone gave her testimony a certain theatrical quality
which made me doubt its fidelity to fact.

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Portions of Ms. Baker’s testimony also were implausible. For example, she testified that
when Superintendent Neely threatened to “bust her face” she was “scared to death.” However,
she then testified that she responded to Neely’s statement by telling him that if there was to be
any face–busting then “I’ll bust yours.” A person so intimidated that she is “scared to death”,
does not stand up to a threat in so bold a manner and counter with a threat of her own. 5
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Ms. Baker further testified that after she told Neely “I’ll bust yours,” he trembled.
Having observed both Baker and Neely as they testified, I find it highly improbably that Neely
would tremble.

Both Baker’s testimony and that of other witnesses creates a consistent picture of Baker
as a person who construed negative or slightly negative remarks as being highly offensive. For
example, at the start of an employee meeting, superintendent Neely offered Baker a chair. She
testified that when Neely made this gesture, “I was in a state of shock” and responded by asking
Neely, “What? Am I special now?” Normally a person does not go into a “state of shock” or
react with a sarcastic remark when someone else extends a courtesy.

For these reasons, I conclude that Ms. Baker viewed events from the perspective of a
dramatist rather than a reporter, and I have substantial doubts about her testimony. Therefore I
do not credit it.

Based upon my observations of John Neely as he testified, I have considerable
confidence that his recollection of the facts is accurate. Moreover, other witnesses who worked
under Neely’s supervision consistently described him in a favorable manner, consistent with the
impression he made while on the witness stand. I conclude that his testimony is accurate and
credit it.

Additionally, based upon my observation of the witnesses, I conclude that Human
Resources Manager Frank D. Elkins testified honestly and accurately. As in the case of Neely, I
credit Elkins’ testimony over that of conflicting witnesses and rely on the testimony of Neely and
Elkins in describing what actually happened.

Also, certain of the General Counsel’s witnesses gave testimony consistent with Baker’s
account. I do not credit this testimony in part because fewer witnesses corroborated Baker than
contradicted her.

Moreover, I focus considerable attention on the testimony of one witness, Virgil Hollan,
because he was in a position to observe the events up close. Hollan had asked Neely a question
when Baker interrupted. Thus he was close when the alleged confrontation between Baker and
Neely took place. However Hollan testified that Neely was not in Baker’s face, and in fact at no
time was Neely close enough to Baker to touch her. Moreover, Hollan credibly testified that he
heard nothing about hitting from either Baker or Neely.

In sum, I do not credit the General Counsel’s witnesses concerning the exchange between
Baker and Neely on May 28.
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Complaint Paragraph 5

In evaluating the credibility of the various witnesses, I have already described the events
which formed the basis for Complaint paragraph 5. 5
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Crediting Neely, I find that he did not threaten Baker with physical harm. He did tell
Baker to quote, “Watch your mouth.” Under certain circumstances, such a statement in context
might constitute a threat which interfered with employees in the exercise of Section 7 rights.

A number of factors could make Neely’s irritated remark be understood as a threat of
unspecified reprisal for union activity. These factors include: Management committing other
unfair labor practices which communicated hostility to the union, management campaigning
against the union in such a way that it manifested hostility to the union, and other action by
Superintendent Neely that would show his tendency to retaliate against employees who
supported the union.

None of these factors is present in the instant case. No employee described Neely as
being hostile to the Union. Instead, employee witnesses uniformly characterized him as a “nice
guy.” Similarly, the record contains no evidence to suggest that Respondent campaigned against
the union organizing effort, displayed hostility to the union, or created an atmosphere in which
employees would fear retaliation for union activity.

It is true that Neely was talking with an employee about unions when Baker interrupted
with a comment that the employee should not trust what a salaried person said about unions. It is
also true that Neely reacted with irritation to this intrusion even though he did not, as the
complaint alleged, threaten any physical harm. However in context, employees reasonably
would not view Neely’s comment as signifying anti–union animus, but rather as his momentary
reaction to being interrupted in an annoying way.
Neely credibly described Baker as not simply yelling but screaming. Even Baker herself
admitted that she hollered. Neely’s “watch your mouth” comment was simply an impulsive
reaction to this annoyance and employees reasonably see it in that light.

Crediting Neely, I find that he did not threaten an employee with physical harm as
alleged in Complaint Paragraph 5, and that he did not otherwise engage in conduct which
violated the Act. Therefore, I recommend that these allegations be dismissed.

Complaint Paragraph 6

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Complaint paragraph 6 alleges that on about May 29, 2003, Respondent’s human
resources manager, Frank Elkins, “Threatened an employee with unspecified reprisals”, end
quote, to discourage the employee from engaging in protected activity.” However the General
Counsel actually litigated this allegation under a different theory. Namely that Elkins had
prohibited an employee from discussing a work related matter with other employees.

After the May 28 exchange between Baker and Neely, Baker went to the human
resources office to file a complaint against Neely. She talked to Elkins about this matter and he
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said he would investigate. Baker testified, in essence, that Elkins told her not to discuss the
matter with other employees.

Additionally she testified that when she returned to Elkins’ office for a second meeting,
Elkins told her to “keep her mouth shut.” For reasons already discussed, I do not credit Baker’s
testimony.
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Crediting Elkins, I find that at the end of his first meeting with Baker, he told her that he
was going to investigate her complaint and that he would appreciate her not talking about the
matter with other employees until he completed the investigation.
Elkins made this request for much the same reason that the General Counsel invoked the
sequestration rule at the start of this hearing. He didn’t want the memory of one witness to affect
the recollection of another.

Further crediting Elkins, I find that when he met with Baker again, he did not tell her or
even request that she not discuss this matter with other employees. Elkins had arranged this
second meeting with Baker to report the results of his investigation. He told Baker that most of
the witnesses interviewed did not substantiate her account and that he was not going to take any
action against Neely.

On the witness stand, Elkins unequivocally denied telling or asking Baker at this second
meeting not to discuss this matter with other workers. I credit Elkins’ denial.

However at the first meeting Elkins did ask Baker not to discuss the matter pending
completion of the investigation, and I must decide whether this request interferes with protected
employee rights in violation of Section 8(a)(1) of Act.

There is no doubt that employees have the right to discuss matters related to working
conditions, and the alleged misconduct of a supervisor towards an employee certainly falls
within that category. Indeed, if Neely in fact had made the threat attributed to him, that action
certainly could affect an employee’s decision about the need for union representation.

When Elkins requested that Baker not discuss the matter while it was under investigation,
he clearly did not intend this request to interfere with employees exercising their right to discuss
this significant employment–related matter. Rather, he simply wanted to protect the quality of
his investigation.

In this regard it may be noted that in his work for Respondent, Elkins had investigated
allegations concerning two other supervisors, and in both those instances the investigations
resulted in the discharge of the supervisors. Elkins’ concern about the quality of the
investigation was understandable.

However, it is well established that intent is not an element of an 8(a)(1) violation. The
Board looks not to what management intended by a particular action, but rather to the effect the
action reasonably would have on the exercise of protected rights. See, e.g., Technology Service
Solutions, 332 NLRB No. 100 (October 31, 2000). Legally and logically. a restriction on
employee discussion of this employment–related matter is no different from a rule prohibiting
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employees from talking among themselves about their wage rates. The Board has long found
such rules unlawful.

Moreover, it does not matter that Elkins simply requested that Baker refrain from
discussion, rather than ordered her to keep quiet. In Radisson Plaza Minneapolis, 307 NLRB 94
(1992), the Board, citing Heck’s, Inc., 293 NLRB 1111, 1119 (1989) and Waco, Inc., 273 NLRB
746 (1984), stated:
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Thus Heck’s and Waco make clear that a finding of a violation is not premised on
mandatory phrasing, subjective impact or even evidence of enforcement, but
rather on the reasonable tendency of such a prohibition to coerce employees in the
exercise of fundamental rights protected by the Act.

307 NLRB at 94.

Based on this precedent, I conclude that Respondent, through Elkins, did violate Section
8(a)(1) of the Act when Elkins requested Baker not to talk about her encounter with Neely while
the investigation was underway. However this violation had very little, if any, effect on the
exercise of employee rights. The investigation took only about a day. Moreover, the record
indicates that employees did discuss the matter among themselves.
There is no evidence that any employee was disciplined for doing so. Indeed, the record
establishes that Respondent had a policy of encouraging employees to talk among themselves,
and I find that Respondent had no rule restricting employees concerning the topics they
discussed.

Dorothy Baker did testify that management told employees not to talk about “the union,
your sex life, anything that will offend anybody” but no other witness supported this testimony
and I do not credit it. Even Baker, who claimed that such a rule existed, further testified that
employees ignored it and talked about “whatever they want to.”

For reasons already discussed, I do not credit Baker’s testimony and find that Respondent
had no such rule or policy. Additionally, I find that Elkins’ request to Baker did not reflect any
established policy or practice of Respondent. Therefore I conclude that it was isolated.

Because the violation was isolated and had little impact on the exercise of protected
rights, I do not believe it would effectuate the purposes and policies of the Act to proceed on it.
Therefore I recommend that the Board dismiss this matter as de minimus.

When the transcript of this proceeding has been prepared I will issue a certification which
attaches as an appendix the portion of the transcript reporting this bench decision. This
certification also will include provisions related to the Conclusions of Law, and Order. When
that certification is served upon the parties, the time period for filing an appeal will begin to run.

Throughout this hearing all Counsel have acted with great professionalism and civility,
which I truly appreciate. The hearing is closed.
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BENCH DECISION

October 30, 2003 1:00 p.m.
JUDGE LOCKE: On the record. This is
decision is issued pursuant to Section 102.35A10 and Section 5
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102.45 of the Board’s Rules and Regulations. The complaint
alleges two violations of Section 8A–1 of the Act.
I find that the first of these alleged violations
did not occur. Although I find that the second did take
place, I conclude that it was isolated and deminimus. Off
the record.
(Off the record)
JUDGE LOCKE: On the record. Procedural
history. This case began on June 10th, 2003, when the
Charging Party, Teamsters Local Union Number 783, affiliated
with the International Brotherhood of Teamsters, AFL–CIO,
filed its’ initial charge in this proceeding. I will refer
to the Charging Party as the Union.
On August 13, 2003, the union amended its’ unfair
labor practice charge. On August 29, 2003, after
investigation of the charge, the Regional Director of Region
Nine of the National Labor Relations Board issued a complaint
and Notice of Hearing, which I will call the complaint.
In issuing this complaint the Regional Director
acted on behalf of the General Counsel of the Board, whom I
will refer to as the General Counsel or as the Government.
Respondent filed a timely answer to the complaint. On
October 29, 2003, a hearing in this matter opened before in
London, Kentucky. After all parties rested, Counsel
presented oral argument. Today, October 30, 2003, I am
issuing this bench decision.
Undisputed matters. In its’ answer, Respondent
has admitted many of the allegations raised by the complaint.
Based on these admissions, I find that the Government has
proven the allegations set forth in Complaint Paragraphs 1(a)
and 1(b), 2(a), 2(b) and 2(c), 3 and 4.
More specifically, I find that Respondent is
corporation which manufacturers refrigerator ice makers in
its’ facility in Annville, Kentucky. At all times material
to this case, Respondent has been an Employer engaged in
commerce within the meaning Sections 2–2–6 and Seven of the
Act, and thereby falls within the Board’s statutory
jurisdiction.
Additionally, based upon its’ purchase and receipt
of goods directly from sources outside the State of Kentucky,
I conclude that Respondent satisfies the Board’s
discretionary standards for the assertion of jurisdiction.
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BENCH DECISION

Based on the admissions and Respondent’s answer, I
find that at all material times, the union has been a labor
organization within the meaning of Section 2.5 of the Act. 5
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Also based on Respondent’s admissions –– off the record.
(Off the record)
JUDGE LOCKE: On the record. I find that at
all material times, human resources manager, Frank D. Elkins,
and second shift superintendent, John L. Neely, were
Respondent’s supervisors and agents within the meaning of
Sections 2.11 and 2.13 of the Act respectively.
Disputed allegations. The Complaint alleges that
Respondent violated Section 8A–1 of the Act by two specific
actions described in Complaint Paragraphs Five and Six.
Respondent has denied these allegations.
Complaint Paragraph Five alleges as follows:
quote, “About May 28th, 2003, Respondent, by John L. Neely,
at its’ Annville, Kentucky facility, threatened an employee
with physical harm for engaging in protected concerted
activity”, end quote.
Complaint Paragraph Six alleges as follows: quote,
“About May 29, 2003, Respondent, by Frank D. Elkins, at its’
Annville facility, threatened an employee with unspecified
reprisals in order to discourage the employee from engaging
in protected concerted activity”, end quote.
The remaining disputed complaint paragraphs allege
that these actions constituted unfair labor practices
effecting commerce and violate Section 8A–1 of the Act.
Credibility of witnesses. In this case various
witnesses gave markedly conflicting testimony. The case
turns on which witnesses were telling the truth. Therefore
it may be helpful to begin by evaluating their credibility.
The General Counsel’s main witness, Dorothy Baker,
gave testimony supporting both of the 8A–1 allegations.
Baker participated in the union’s campaign to organize
Respondent’s workers. She described an incident which took
place on May 28, 2003, near the assembly line on which works.
Another employee, Virgil Hollan, had initiated a
conversation wit superintendent Neely, and was asking Neely
about Unions. Baker overheard part of this conversation from
her work station and she testified, quote, “Hollered over and
tell him you can not trust a salaried man to answer a Union
question”, end quote.
According to Baker’s superintendent Neely, came
over to her and stood so close that his nose and hers were
only a hands–breadth apart, pointed his finger at her and
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BENCH DECISION

said, quote, “You’d better shut that mouth. We don’t pay you
for running your mouth. You shut that mouth or I’ll bust
your face.”, end quote. This is the conduct alleged in 5
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Complaint Paragraph Five.
However, I do not have confidence in Baker’s
testimony and do not credit it. I base that decision in part
on my observations of Baker’s demeanor as she testified.
During much of her testimony, Ms. Baker’s voice sounded
tremulous, suggesting a level of apprehension beyond the
degree of anxiety a witness typically manifests on the stand.
However, when Ms. Baker described how Neely spoke
to her during this confrontation, she became loud and
dramatic. This shift in tone gave her testimony a certain
theatrical quality which made me doubt as fidelity to the
fact. Portions of Ms. Baker’s testimony also were
implausible. For example, she testified that when
superintendent Neely threatened to quote, “bust her face”,
end quote, she was quote, “scared to death”, end quote.
However, she then testified that she responded to
Neely’s statement by telling him that if was there was to be
any face–busting then, quote, “I’ll bust yours”, end quote.
A person so intimidated that she is “scared to
death”, does not stand up to a threat in so bold a manner and
counter with a threat of her own.
Ms. Baker further testified that after she told
Neely quote, “I’ll bust yours”, end quote, he trembled.
Having observed both Baker and Neely as they testified, I
find it highly improbably that Neely would tremble.
Both Baker’s testimony and that of other witnesses
creates a consistent picture of Baker as a person who
construed or slightly negative remarks as being highly
offensive.
For example, at the start of an employee meeting,
superintendent Neely offered Baker a chair. She testified
that when Neely made this gesture, quote, “I was in a state
of shock”, end quote, and responded by asking Neely, quote,
“What? Am I special now?”, end quote.
Normally a person does not go into a “state of
shock” or react with a sarcastic remark when someone else
extends a courtesy.
For these reasons, I conclude that Ms. Baker
viewed events from the perspective of a dramatist rather than
a reporter. And I do not have –– and I have substantial
doubts about her testimony. Therefore I do not credit it.
Based upon my observations of John Neely as he
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BENCH DECISION

testified, I have considerable confidence that his
recollection of the facts is accurate.
Moreover, other witnesses who worked under Neely’s 5
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supervision consistently described him in a favorable manner,
consistent with the impression he made while on the witness
stand. I conclude that his testimony is accurate and credit
it.
Additionally, based upon my observation of the
witnesses, I conclude that human resources manager, Frank D.
Elkins, testified honestly and accurately. As in the case of
Neely, I credit the Elkins’ testimony over that of
conflicting witnesses and rely on the testimony of Neely and
Elkins in describing what actually happened.
Also certain of the General Counsel’s witnesses
give testimony consistent with Baker’s account, I do not
credit this testimony in part because fewer witnesses
corroborated Baker than contradicted her.
Moreover, I focus considerable attention on the
testimony of one witness, Virgil Hollan, because he was in a
position to observe the events up close.
Hollan had asked Neely a question when Baker
interrupted. Thus he was close when the alleged
confrontation between Baker and Neely took place. However
Hollan testified that Neely was not in Baker’s face, and in
fact at no time was Neely close enough to Baker to touch her.
Moreover, Hollan credibly testified that he heard nothing
about hitting from either Baker or Neely.
In sum, I do not credit the General Counsel’s
witnesses concerning the exchange between Baker and Neely on
May 28th.
Complaint Paragraph Five. In evaluating the
credibility of the various witnesses, I have already
described the events which formed the basis for Complaint
Paragraph Five.
Crediting Neely, I find that he did not threaten
Baker with physical harm. He did tell Baker to quote, “Watch
your mouth”, end quote. Under certain circumstances, such a
statement in context might constitute a threat which
interfered with employees in the exercise of Section Seven
rights.
A number of factors could make Neely’s irritated
remark be understood as a threat of unspecified reprisal for
union activity.
These factors include: management committing other
unfair labor practices which communicated as hostility to the
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union, management campaigning against the union in such a way
that it manifests hostility to the union, other action by
superintendent Neely that would show his tendency to 5
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retaliate against employees who supported the union.
None of these factors is present in the instant
case. No employee described Neely as being hostile to the
Union. Instead, employee witnesses uniformly characterized
him as a quote, “nice guy”, end quote.
Similarly, the record contains no evidence to
suggest that Respondent campaigned against union organizing
effort or displayed hostility to the union, or created an
atmosphere in which employees would fear retaliation for
union activity.
It is true that Neely was talking with an employee
about unions when Baker interrupted with a comment that the
employee should not trust what a salaried person said about
unions. It is also true that Neely reacted with irritation
to this intrusion even though he did not, as the complaint
alleged, threaten any physical harm.
However in context, employees reasonably would not
view Neely’s comment as signifying anti–union animus, but
rather as his momentary reaction to being interrupted in an
annoying way.
Neely credibly described Baker as not simply
yelling but screaming. Even Baker herself admitted that she
hollered. Neely’s “watch your mouth” comment was simply an
impulsive reaction to this annoyance and employees reasonably
see it in that light.
Crediting Neely, I find that he did not threaten
an employee with physical harm as alleged in Complaint
Paragraph Five, and that he did not otherwise engage in
conduct which violated the Act. Therefore, I recommend that
these allegations be dismissed.
Complaint Paragraph Six. Complaint Paragraph Six
alleges that on about May 29, 2003, Respondent’s human
resources manager, Frank Elkins, quote, “Threatened an
employee with unspecified reprisals”, end quote, to
discourage the employee from engaging in protected activity.
However the General Counsel actually litigated
this allegation under a different theory. Namely that Elkins
had prohibited an employee from discussing a work related
matter with other employees.
After the May 28th exchange between Baker and
Neely, Baker went to the human resources office to file a
complaint against Neely. She talked to Elkins about this
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BENCH DECISION

matter and he said he would investigate. Baker testified in
essence that Elkins told her not to discuss the matter with
other employees. 5
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Additionally she testified that when she returned
to Elkins’ office for a second meeting, Elkins told her to
quote, “Keep her mouth shut”, end quote. For reasons already
discussed, I do not credit Baker’s testimony.
Crediting Elkins I find that at the end of his
first meeting with Baker, he told her that he was going to
investigate her complaint and that he would appreciate her
not talking about the matter with other employees until he
completed the investigation.
Elkins made this request for much the same reason
that the General Counsel invoked the sequestration rule at
the start of this hearing. He didn’t want the memory of one
witness to effect the recollection of another.
Further crediting Elkins I find that when he met
with Baker again, he did not tell her or even request that
she not discuss this matter with other employees.
Elkins had arranged this second meeting with Baker
to report the results of his investigation. He told Baker
that most of the witnesses interviewed did not substantiate
her account and that he was not going to take any action
against Neely.
On the witness stand, Elkins unequivocally denied
telling or asking Baker at this second meeting not to discuss
this matter with other workers. I credit Elkins’ denial.
However at the first meeting Elkins did ask Baker
not to discuss the matter pending completion of the
investigation, and I must decide whether this request
interferes with protected employee rights in violation of
Section 8A–1 of Act.
There is not doubt that employees have the right
to discuss matters related to working conditions, and the
alleged misconduct of a supervisor towards an employee
certainly falls within that category.
Indeed, if Neely had in fact made the threat
attributed to him, that action certainly could affect an
employee’s decision about the need for union representation.
When Elkins requested that Baker not discuss the
matter while it was under investigation, he clearly did not
intend this request to interfere with employees exercising
their right to discuss this significant employment related
matter. Rather, he simply wanted to protect the quality of
his investigation.
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JD(ATL)–83–03

BENCH DECISION

In this regard it may be noted that in his work
for Respondent, Elkins had investigated allegations
concerning two other supervisors. 5
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And in both those instances the investigations
resulted in the discharge of the supervisors. Elkins’
concern about the quality of the investigation was
understandable.
However, it is well established that intent is not
an element of an 8A–1 violation. The Board looks not to what
management intended by a particular action, but rather to the
effect of the action –– rather to the effect the action
reasonably would have on the exercise of protected rights.
(C–E–G), Technology Service Solutions, and
International Brotherhood of Electrical Workers, AFL–CIO,
Local 111, 332NLRB100, October 31, 2000.
Legally an logically a restriction on employee
discussion of this employment related matter is no different
from a rule prohibiting employees from talking among
themselves about their wage rates. The Board has long found
such rules unlawful.
Moreover, it does not matter that Elkins simply
requested that Baker refrain from discussion, rather than
ordered her to keep quiet. In Radisson Plaza, Minneapolis,
307NLRB94, 1992, the Board citing Hex, Inc., 293NLRB1111–
1119, 1989, and Waco, Inc., 273NLRB746, 1984, stated, quote,
“Thus Hex and Waco make clear that a finding of a violation
is not premised on mandatory phrasing, subjective intent or
even evidence of enforcement but rather on the reasonable
tendency of such a prohibition to coerce employees in the
exercise of fundamental rights protected by the Act.”, end
quote, 307NLRB94.
Based on this president, I conclude that
Respondent through Elkins did violate Section 8A–1 of the Act
when Elkins requested Baker not to talk about her encounter
with Neely while the investigation was underway.
However this violation had little –– very little,
if any, effect on the exercise of employee rights. The
investigation took only about a day. Moreover, the record
indicates that employees did discuss the matter among
themselves.
There is no evidence that any employee was
disciplined for doing so. Indeed, the record establishes
that Respondent had a policy of encouraging employees to talk
among themselves. And I find that Respondent had no rule
restricting employees concerning the topics they discussed.
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JD(ATL)–83–03

BENCH DECISION

Dorothy Baker did testify that management told
employees not to talk about quote, “the union, your sex life,
anything that will offend anybody”, end quote, but no other 5
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witness supported this testimony and I do not credit it.
Even Baker, who claimed that such a rule existed, further
testified that employees ignored it and quote, “Just talk
about whatever they want to”, end quote.
For reasons already discussed, I do not credit
Baker’s testimony and find that Respondent had no such rule
or policy. Additionally, I find that Elkins’ request to
Baker did not reflect any established policy or practice of
Respondent. Therefore I conclude that it was isolated.
Because the violation was isolated and had little
impact on the exercise of protected rights, I do not believe
it would effectuate the purposes and policies of the Act to
proceed on it.
Therefore I recommend that the Board dismiss this
matter as deminimus.
When the transcript of this proceeding has been
prepared I will issue a certification which attaches as an
appendix the portion of the transcript reporting this bench
decision.
This certification also will include provisions
related to the findings of fact, conclusions of law and
order. When that certification is served upon the parties,
the time period for filing an appeal will begin to run.
Throughout this hearing all Counsel have acted
with great professionalism and civility, which I truly
appreciate.
The hearing is closed. Off the record.
(Whereupon the hearing concluded at 1:20 p.m.)
* * *

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JD(ATL)–83–03

BENCH DECISION

C E R T I F I C A T E

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This is to certify that the attached proceedings before

the National Labor Relations Board, were held according to

the record and that this is the original, complete and true

and accurate transcript which has been compared to the

reporting and recording accomplished at the hearing, that

the exhibit files have been checked for completeness and no

exhibits received in evidence or in the rejected exhibits

files are missing.

______________________________________________________
NANCILYN RUTAN – OFFICIAL REPORTER

_________________________
Continued

MOLER REPORTING SERVICE, INC.
2115 Harker Waits Road
Williamsburg, Ohio 45176
(937) 444–4565

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