Motion Control Industries

National Labor Relations Board - Administrative Judge Opinions

Jan 6, 2006

05-CA-031960 (N.L.R.B. Jan. 6, 2006)

JD–01–06
Fredericksburg, VA

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

MOTION CONTROL INDUSTRIES, INC.

and Case 5–CA–31960

INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, LOCAL 2123, AFL-CIO

James C. Panousos, Esq., for the General Counsel.
John M. Barr, Esq. and Joseph D. McCluskey, Esq.,
of Richmond, Virginia, for the Respondent.

DECISION

Statement of the Case

C. RICHARD MISERENDINO, Deputy Chief Administrative Law Judge. This case was
tried in Washington, DC, on October 27-28, 2004. The charge was filed on June 4, 2004,1 and
the complaint was issued on August 27, 2004.

In early 2004, the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Local 2123, AFL-CIO (Union) sought to organize certain
employees working at the Fredericksburg, Virginia facility of Motion Control Industries, Inc.
(Respondent or Company). The complaint alleges that during the course of the Union’s
organizing effort, the Respondent, through its managers and supervisors, violated Section
8(a)(1) of the Act by engaging in the following conduct: informing employees that choosing a
union was futile; promulgating an overly-broad no solicitation rule; telling employees to stop
engaging in union and/or protected concerted activities; confiscating Union literature; soliciting
grievances in order to discourage employees’ support for the Union; threatening employees with
loss of benefits and plant closure if the Union were selected; and issuing a letter to all
employees threatening that their benefits would start over from scratch if the Union was
selected and soliciting their grievances in order to discourage support for the Union. The
complaint further alleges that the Respondent violated Section 8(a)(3) of the Act by isolating the
principal union advocate, Steven Medley, from contact with other employees, subjecting him to
closer supervision, and ultimately discharging him because of his union activity.

On the entire record, including my credibility determinations based on the weight of the
respective evidence, established or admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole, and after considering the briefs filed by the
General Counsel and the Respondent, I make the following

1 All dates are in 2004 unless otherwise indicated.

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Findings of Fact

I. Jurisdiction

The Respondent, a corporation, is engaged in the manufacture and non-retail sale and
distribution of brake pads and related products with an office and place of business in
Fredericksburg, Virginia. During the 12-month period preceding August 27, 2004, it sold and
shipped from its Fredericksburg facility, goods valued in excess of $50,000 directly to points
outside the State of Virginia. The Respondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. The Respondent’s Business

The Respondent’s facility manufactures heavy-duty brake linings used in 18 wheel
tractor-trailer trucks. (Tr. 17, 18, 21.) It operates 3 shifts a day, 7 a.m. – 3 p.m., 3 p.m. – 11 p.m.,
and 11 p.m. - 7 a.m. (Tr. 97, 231, 282.)

Several different formulas are used to produce break linings. (Tr. 20, 25.) The production
manager determines the formula(s) that will be used on any given day. (Tr. 25.) Once the
formula is determined, the shift supervisor prints a blend sheet from a computer and gives it to
the mixer operator. A blend sheet, which is similar to a recipe card, shows the ingredients to
mixed, the number of containers of each ingredient, and the appropriate number of pounds of
each ingredient to be blended. (Tr. 23; see e.g., GC Exh. 3(A).)

The mixer operator coordinates with a forklift driver to bring the ingredients listed on the
blend sheet to the mixing area. (Tr. 23.) Once the materials are delivered to the mixing area, the
mixer operator loads the “batch” of ingredients onto a conveyer belt in the order that they
appear on the blend sheet. (Tr. 26) When the ingredients are ready to be run through the mixer,
the mixer operator will radio for a quality control inspector (QCI) to check the batch. (Tr. 28-29.)

The QCI is responsible for verifying that the correct ingredients and the correct amounts
of those ingredients listed on the blend sheet are on the conveyor belt. (Tr. 52, 53.) If everything
is correct, the QCI checks off all the ingredients and initials the blend sheet. The mixer operator
cannot begin the mixing process until the QCI has signed the blend sheet. (Tr. 53.)

Earlene Ross was the Quality Assurance Manager at the Respondent’s facility. She had
overall responsibility for ensuring the quality of the Respondent’s product. She supervised three
quality control inspectors (one on each shift), one final release inspector, and one lab
technician. (Tr. 17.) Ross worked for the Respondent from September 2002 – June 2004.

Steven Medley was a third shift QCI reporting to Ross. (Tr. 39.) In May 2003, he began
working for the Respondent as a press operator. A few months later, he was promoted to
second shift QCI. (Tr. 96.) In November 2003, Medley voluntarily became the third shift QCI.
The Respondent discharged Medley on April 7, 2004.

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B. The Organizing Campaign

1. Medley contacts the Union

In February 2004, Steve Medley contacted Union Chairman, Chuck Sulser, about
organizing the Respondent’s employees. (Tr.130.) Shortly thereafter, Medley became the
Union’s primary contact person at the Fredericksburg facility. (Tr.134.) He distributed union
materials, including the authorization cards, drafted several Union flyers, and spoke with
employees about the benefits of joining a union. He also elicited signed authorization cards
during breaks and before and after work. (Tr.135.)

2. The Company learns about the Union
In mid-February 2004, an employee told Plant Manager Fred Allen that some employees
were interested in obtaining union representation at the facility. (Tr.414.) Allen testified that the
employee came into his office and gave him a piece of paper with directions to a union meeting.
(Tr. 414-415.)

Shortly thereafter, the Respondent held two manager meetings to discuss the various
aspects of a union organizing campaign and strategies for dealing with one. (Tr. 404-405.) On
February 20, the Company’s managers met to discuss supervisor “Do’s and Don’ts.” (Tr. 405.)
All supervisors, including Allen, were cautioned that threatening, interrogating, promising, and
surveilling employees because they support or are perceived to support a union may be
unlawful. The discussion was accompanied by a slide show presentation. (R. Exh. 3.) Two
weeks later, another meeting was held where many of the same topics were reviewed in greater
detail and a written supervisor’s guide was distributed. (Tr. 407- 408; R. Exh. 27(a).)

3. Medley initiates a conversation with Ross about the Union
a. Facts
Two weeks after Medley contacted with the Union, he went to Ross, his supervisor, to
talk about work issues and the Union.2 (Tr.131.) Medley testified that he approached Ross to
discuss unionization because he considered her a friend and he valued her opinion. (Tr.132.) In
addition, Medley stated that he initiated these conversations because he believed that the
Respondent’s opposition to a union was not necessarily the position of its supervisors and
employees. (Tr. 193; GC Exh. 2 at 9.)

Medley told Ross that he believed a union could make positive changes at the facility.
(Tr.132.) Ross told him that she previously worked in a unionized workplace and that a union
could not correct the problems at Motion Control. Medley replied that a union had succeeded in
making positive changes at his mother’s workplace. Ross reiterated that based on her
experience with the AFL-CIO, a union could not fix the problems at Motion Control. (Tr. 328.)
The conversation lasted about 20-30 minutes with only Ross and Medley present.

2 Around the same time, Medley sought out third shift supervisor, Bryan Williamson, and second shift
supervisor, Benny Short, to elicit their views on unionization. He testified that he spoke only with Ross,
Williamson, and Short because he trusted them. (Tr. 194.)

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b. Analysis and findings
Paragraph 5(a) of the complaint alleges that when Ross told Medley during this meeting
that there was nothing the Union could do to fix problems at the Respondent, she unlawfully
implied that it was futile to select a Union.

Section 8(c) gives an employer representative the right to express an opinion about a
union so long as the expression does not contain a threat of reprisal or force or promise of
benefit. The undisputed evidence shows that Medley engaged Ross in a one-to-one
conversation in her office to elicit her personal views on the Union because he considered her a
friend and he valued her opinion. He also presumed that Ross did not necessarily agree with
the Company’s position opposing a union. The undisputed evidence also shows that Ross
explained that her views were based on her personal experiences as a former union member
and that they were not accompanied by any threat or promise. Finally, the evidence shows that
during their conversation Medley disagreed with Ross’ view and debated the issue with her. I
find that this was exactly the type of exchange that 8(c) was designed to allow and protect.
Accordingly, I recommend that the allegations of paragraph 5(a) of the complaint should be
dismissed.

4. Orsulak’s one-on-one employee meetings

a. Facts

In late February - early March 2004, Human Resources Manager John Orsulak was
instructed by his boss, Division Human Resources Manager Norman Tarbell to conduct one-on-
one meetings with employees to discuss problems at the Fredericksburg facility. (Tr. 79, 84-85,
319.) Although he had never previously conducted one-to-one employee meetings, Orsulak
testified that he met with approximately 70-75 employees to find out “if they had any issues,
suggestions that type of thing.” (Tr. 76, 83, 321.) Orsulak denied asking employees whether
they supported the Union or whether they signed an authorization card, but he conceded that
some of the employees volunteered that information. (Tr. 80.)

Mixer Operator Sonja Turner testified that in her one-to-one with Orsulak, she was asked
if there was anything bothering her, and if she had any complaints. (Tr. 262.) Turner stated that
Orsulak told her that their conversation was confidential and that he was doing one-to-ones “to
see what’s wrong, why are the employees so upset and so angry.” (Tr. 263.) She stated that
when she asked him “why are you all going to wait until we try to form a union before you want
to find what’s wrong?” Orsulak responded that his boss told him to find out what was wrong.

Orsulak took contemporaneous notes of the issues and suggestions provided by the
employees in the one-to-one meetings. (GC Ex. 34; Tr. 79, 262.) Relying on this information
and additional comments made by the employees at two general meetings, Orsulak prepared a
document for management on March 25, 2004, which outlined the issues, identified ways to
resolve the issues, and established completion dates for resolving the issues raised by the
employees.3 (GC Exh. 21; Tr. 76-78.)

3 The evidence shows that all of the issues identified by Orsulak for management were resolved in
March 2004, well in advance of the April 23 union election date.

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b. Analysis and findings
Paragraph 6 of the complaint alleges that the Respondent, through Orsulak, used these
meetings for the purpose of soliciting grievances from the employees in order to discourage
their support for the Union.

In Wal-Mart Stores, Inc., 340 NLRB 637, 640 (2003), the Board stated:

It is well established that an employer with a past practice of
soliciting employee grievances through an open door or
similar-type policy may continue such a policy during a union’s
organizational campaign. See, e.g., Kingsboro Medical Group,
270 NLRB 962, 963 (1984). It is also well-established that it is
not the solicitation of grievances itself that violates the Act, but
rather the employer’s explicit or implicit promise to remedy the
solicited grievances that impresses upon employees the notion
that union representation is unnecessary.

See also, TNT Logistics North America, Inc., 345 NLRB No. 21, slip op. at 3 (2005).

The Respondent asserts that it has a long standing policy of soliciting grievances, which
is embodied in its employee handbook. It relies specifically on a statement in the handbook
which encourages open communication and “an exchange of thoughts, ideas and concerns
between employees and all levels of management.” (GC Exh. 2, p. 3-4.) It also relies on a
section entitled, “Communication” that reiterates the importance of open communication and
delineates five methods in which the Respondent will disseminate information to the employees.
(GC Exh. 2, pp. 3-4, 24-25.) One of those methods is the “Team Talks” held by the Respondent
on a monthly basis in order to disseminate information to the employees. The handbook states
that the Team Talks “is also a forum for employees to make suggestions, express perceived
problems, and identification of safety issues.” (GC Exh. 2, p. 24.)

Contrary to the Respondent’s assertions, however, there is no evidence that the Team
Talks were actually used as a forum to solicit and address employee grievances. More
significantly, there is no evidence that the Respondent ever engaged employees in one-to-one
meetings to solicit their grievances prior to February 2004. Indeed, the employee handbook
does not reference one-to-one meetings. It is not listed as a “method” of open communication
on page 24 of the handbook. To the contrary, Orsulak conceded that in the 2 ½ years prior to
February 2004 that he was human resources manager, he did not hold any one-to-one
meetings with employees. Rather, the one-to-one meetings did not start until after the
Respondent learned of the Union’s organizing effort. Thus, based on the evidence viewed as a
whole, I find that the Respondent did not have an established practice of holding one-to-one
meetings to solicit employee grievances.

In addition, the evidence shows that the purpose for initiating the one-to-one meetings
was to solicit employee grievances in order to remedy them. Orsulak testified that his
supervisor, Norman Tarbell, wanted him to hold one-to-one meetings “to see what issues were
in the minds of employees, and if there was anything that could be done to correct any issues.”
(Tr. 85.) In the Team Talks, Plant Manager Allen specifically told the employees that he had
heard there have been some issues bothering the employees, that Orsulak was currently
holding employee meetings to listen to these issues, and that the employees should be honest
with him during these meetings, because “if we don’t know something is broken, we can’t fix it.”
(R. Exh. 1; Tr. 85, 411.) I find that his remarks can be reasonably construed as a promise to
remedy employee complaints.

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Finally, the unrebutted evidence shows that the Respondent not only promised to
remedy the employee’s complaints, it did so. Orsulak took detailed notes of each one-to-one
meeting (GC Exh. 34) and created a “to do” list of items affecting working conditions that
needed to be remedied. Almost all of these problems were remedied by the Respondent prior to
the union election. (GC Exh. 21; Tr. 322-323.) Notably, the evidence shows that many of these
items could have been detected by simply walking around the plant, but were not acted upon
until they were complained about during the one-to-one meetings.4 Thus, the evidence viewed
as a whole shows that the Respondent by its words and conduct solicited employees’
grievances, promised to “fix” the problems, and did fix almost all of the workplace problems
complained about at these meetings.

Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 6 of the complaint.

5. “Team talks” with Allen
In March 2004, Production Manager Fred Allen gave a “team talk” to production
employee groups on each of the three shifts.5 (Tr. 147, 150, 257-258, 260, 296-297, 409-410.)
These meetings lasted between 20 – 40 minutes. (Tr. 148, 258.) Orsulak was present at each of
the sessions. (Tr. 148.)

Allen started each “team talk” with a general discussion about production which led into
a discussion about the Union. Employees Medley, Bundy and Turner testified that Allen told the
employees that he heard about their unionizing efforts and that he urged them to weigh the pros
and cons of having a union. (Tr. 259.) He also reminded the employees that they were currently
receiving good wages, benefits, and retirement. Allen told the group that the Company did not
need a union.

Recollections differ, however, regarding other aspects of Allen’s speech and whether
Allen read from and strictly followed a script he was holding. Third shift QCI Medley testified that
Allen “talked a little bit about the plant, of course, like a normal team talk. And then [he] brought
up that the company had gotten wind that we were trying to form a Union. He then proceeded to
pull out a letter. ... I don’t know who the letter was from, but he read the letter word-for-word....”6
(Tr. 149, 200.)

According to Medley, the document from which Allen read
“...talked about our company and how we didn’t need to have
a Union, how the Union couldn’t do anything to help us. How
the Union would force us to start over from scratch if we were
to negotiate a new contract as far as our benefits and pay.

4 Query, if the Respondent had a long standing policy of soliciting grievances, why was it necessary
to hold one-to-one meetings and why were there so many problems that needed to be resolved?
5 Monthly “team talks” were typically conducted by the plant manager. In September 2003, Allen
began holding “team talks” whenever the plant manager was absent. (Tr. 410.) Allen also testified that he
typically used a script for the “team talks.” (Tr. 410.)
6 There is no evidence that Allen read from a “letter.” Rather, the credible evidence shows that Allen
read from a prepared type-written script.

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It talked about how our pay would freeze, and basically just
a letter saying, you know, don’t do this, it’s not a good thing.
And then further, after he read the letter, we had a couple of
people ask some questions, you know, basically, general questions.

Well, you know, why can’t we get machines fixed, why can’t we do
this, why can’t we do that. Again, anything that referred possibly
to the Union, Mr. Allen would refer back to the letter and read verbatim.

Although someone mentioned plant closing and he did mention
that we had another facility in the Motion Control family that had
organized a Union and that the Union didn’t stop them from being
closed, and there was no guarantee that they would stop our plant
from being closed.”

(Tr. 149-150, 201.)

Medley also testified that with respect to the question and answer session, Allen read from the
document stating, “I’m going to read, and he would read specifically from the document. Other
questions, he would lay it down and then proceed to answer the question.” (Tr. 210.) Medley
added that when Allen responded to a question about plant closure, the document was on the
table.

First shift Mixer Operator Sonja Turner testified that when Allen spoke he “glanced down
at something in his hand, it was folded...[h]e appeared to be glancing at something, but then
looking up at us, talking.” (Tr. 260.) He told the employees that “[h]e heard that some of us
wanted a union and that we should listen, before we get into something that we really don’t
know about.” (Tr. 259.) She elaborated that:

He had pros and cons. Don’t give up what you already have
for something that you may not get. Motion Controls pays
competitive wages, some of the best in the area. We have good
benefits. We have good retirement. You know, don’t throw it all
away. You know, unions are known for shutting big organizations
down, they don’t last long once unions come in, companies
hang around for like six months and then they’re gone, their
doors are closed because of unions.

So he said he strongly urged us to listen to both sides of the, you
know, listen to the company’s side, listen to the union’s side. He
said I can’t tell you what to do, you make your own decision, but
you should know what you’re getting yourself into.7

(Tr. 259.)

7 Turner was an active and open Union supporter, who took detailed notes of union meetings. (Tr.
270, 272.) She testified that she also kept notes of “events that occurred at the plant.” (Tr. 273.) In cross-
examination, however, she conceded that her notes do not mention that Fred Allen told the employees
that the plant would close if the Union were selected. (Tr. 275-277.) She unconvincingly asserted that “it’s
in there,” but was unable to point to anything specific in her notes to support such an inference.

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Quality Control Inspector Kenneth Bundy attended a second shift team talk. (Tr. 297.)
Bundy testified that he had a front view of Allen during the speech which started off with
production and eventually turned to the Union. (Tr. 298.) Bundy testified that Allen told the
employees several times that “we didn’t need a third party” and that “if push came to shove,
which he didn’t see right then and there, but, down the road, that the plant could close.” (Tr.
299.)

Fred Allen stated that he used a script for the March 2004 “team talks.” (Tr. 411; R. Exh.
1.) He stated that he discussed all the points on the script and did not discuss any points that
were not on the script. (Tr. 412-413.) Allen denied telling the employees that the Fredericksburg
facility would be shut down if the union was selected. He denied telling the employees that they
would lose any of their benefits if the union was selected. (Tr. 413.) He also denied telling the
employees that all bargaining would start from scratch. (Tr. 413-414.)

I credit Allen’s denials for the following reasons. First, Allen’s testimony that he followed
the script is corroborated by the General Counsel’s key witness, Steven Medley, who testified
that Allen “ proceeded to pull out a letter. ... I don’t know who the letter was from, but he read
the letter word-for-word....” (Tr. 149, 200.) General Counsel witness Turner also testified that
Allen appeared to be glancing down at something, then looking up at the employees. (Tr. 260.)

Second, the script does not state that bargaining would start from scratch or that the
employees would lose benefits or that the plant would close. (R. Exh. 1, GC Exh. 22.) Rather, it
corroborates Allen’s testimony. With respect to benefits, the script states:

6 THE COMPANY IS NOT REQUIRED TO CONTINUE ITS PRESENT
BENEFITS IF A UNION GET IN. WHATEVER BENEFITS THE EES
RECEIVE AFTER THE UNION GETS IN WILL HAVE TO BE
NEGOTIATED WITH UNION THE BENEFITS EES RECEIVE AFTER
THE UNION GETS IN COULD BE LESS THAN THEY RECEIVE NOW
OR THEY COULD BE MORE. NO LAW REQUIRES THE COMPANY
TO CONTINUE ITS PRESENT BENEFITS IN ANY CONTRACT
NEGOTIATED WITH THE UNION.

With respect to the plant closing, it states:

11 UNIONS WILL PROMISE THE EES ANYTHING IN ORDER TO
PERSUADE THEM TO VOTE FOR THE UNION HOWEVER TI
THE EMPLOYER WHO CAN DELIVER THE GOODS. THE ONLY
WAY A UNION CAN FORCE AN EMPLOYER TO DO SOMETHING
IS TO PULL THE EES OUT ON STRIKE – AND THAT OFTEN LEADS
TO REDUCED PRODUCTION AND CONSEQUENTLY LAYOFFS
AND EVEN PLANT CLOSINGS.

(R. Exh. 1.)

Third, none of the General Counsel’s witnesses corroborated Medley’s assertions that
Allen told his group that bargaining would start from scratch or the employees would lose
benefits or that the plant would close. At best, Bundy who attended the second shift “team talk,”
testified that Allen told the employees that “if push came to shove, which he didn’t see right then
and there, but, down the road, that the plant could close.” (emphasis added.) (Tr. 299.) His
paraphrasing of what he heard Allen tell the employees falls far short of a statement that “the
plant would close” and that it would close simply because a union was selected. Indeed,

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Bundy’s testimony more closely reflects what appears in the actual script, which Medley
concedes was read “verbatim” by Allen. (Tr. 149.)

Finally, the evidence shows that less than two weeks before this “team talk” Allen and all
of the other managers/supervisors attended two training sessions on how to respond to the
Union organizing effort. A careful review of the supervisor training materials reflects that the
supervisors were admonished that they should not tell employees that if they vote for the union
income and benefits would be reduced or that the company would close or move. (R. Exh. 3; R.
Exh. 27 A-G.) Paragraphs 6 and 11 of Allen’s speech cited above were lifted verbatim from
these training materials. (See R. Exh. 27F, paras 14 and 44.) Thus, I find that it is more likely,
than less, that Allen followed the instructions he received immediately preceding the “team
talks.”

For all of these reasons, I credit Allen’s testimony denying that he told the employees
during the team talks that benefits would be cut, the plant would close, or that bargaining would
start from scratch if the Union was selected.

Based on Allen’s credited testimony, I find that the statements made at the team talks
did not violated Section 8(a)(1) of the Act as alleged in paragraph 7(a) and (b) of the complaint.
Accordingly, I shall recommend the dismissal of these allegations of the complaint.

6. Medley identifies himself as a Union activist

On March 4, 2004, Medley called Orsulak to arrange a one-to-one meeting with him.8
(Tr. 75, 140.) Orsulak asked Ross to attend the meeting because she was Medley’s supervisor.
When Medley arrived at Orsulak’s office and saw Ross, he asked to have another hourly
employee present, but Orsulak refused to pull an employee off the production line.9 (Tr. 333.)
When Medley pressed the issue, Orsulak told him that he could either go forward with the
meeting that he requested without another employee or there would be no meeting.

Medley proceeded with the meeting taking out a letter that he had prepared to Orsulak.
The letter, dated March 4, 2004, stated:

As representative for the hourly employees of Carlisle Motion
Control, Fredericksburg location, It is my duty to inform you
that the employees of Motion Control have agreed by majority
decision to be represented in this facility by the United Auto
Workers Union. We are asking at this time that you recognize
the United Auto Workers Union as our representative.

(GC Exh. 18C and 29.)
When Medley attempted to give the letter to Orsulak, he refused to accept it. Medley testified
that he stood up, read the letter aloud, and placed it on Orsulak’s desk. (Tr. 70-71, 145.)

8 Up until that point, Medley did not want to meet with Orsulak one-to-one because he did not want to
divulge any information about plant problems that the Respondent could quickly correct. (Tr. 140, 143.)
9 Medley testified that he wanted another employee present because the meeting concerned Union
activity and he wanted someone he trusted to witness the discussion. (Tr. 143.)

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Orsulak tried to hand back the letter, but Medley refused to take it and left the office.10 The
meeting lasted 10-15 minutes. Orsulak instructed his secretary to mail the letter back to Medley,
which she did. (GC Exh. 18A-C, 19.)

7. The March 11, 2004 letter to the employees

a. Facts

Shortly after March 11, 2004, the Respondent sent an unsigned letter to all employees at
their personal residences.11 (Tr. 82, GC Exh. 20.) The letter states in relevant part:

It has come to our attention that there have been discussions
regarding the need for a union to represent the employees at
our Fredericksburg facility. Some of you were employed by
Motion Control the last time these issues arose. Those of you
who have been with Motion Control for a while know that we have
a history of paying good wages providing competitive benefits,
treating employee fairly and maintaining good working conditions.
In all fairness, we think you need to be aware of a few facts as you
consider the promises typically made by union supporters.

First and foremost, we do not feel that you need a third party to
discuss and resolve any issue you may feel is important. In fact,
there are several ways you have to work with the management
team at Motion Control to help in bettering your workplace. You
can speak to your supervisor, leave a suggestion in the “Suggestion
Box” in the vendateria, ask questions during the “Team Talks,”
participate on an employee committee, such as the Safety Committee,
and express your concerns during the one-on-one meetings which
are currently being conducted. You should also be aware that Motion
control management maintains an “open door” policy to give you
additional access. These options let you offer your opinions to
management in a method that is comfortable for you. Why put yourself
in a situation where someone else speaks for you? You have your
own voice now!

Motion Control currently provides a very competitive benefit package
that includes health, dental and vision insurance coverage, prescription
drug plan coverage, company matched 401k contributions, company
paid life insurance for each and every employee, company paid pension
plan, paid holidays, paid vacation and many others. All of those benefits
were offered by the Company because we felt it was the proper thing to
do for our employees. Those are benefits that are already yours. Understand
that all of these things will be renegotiated when you are represented
by a union. All current benefits start over from scratch and, for them to

10 The unrebutted evidence shows that thereafter Medley wore a UAW button to work each day
above his name tag. (Tr. 146 - 147.)
11 Orsulak testified that in March 2004, Division Human Resources Manager Norm Tarbell emailed a
copy of the letter to him. (Tr. 81.)

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continue, Motion Control has to agree to continue them. The union cannot
demand that they be continued. The union may even bargain away your
benefits during negotiations. Why risk losing the benefits you have worked
for and those with which you are currently provided?

(emphasis added.)

b. Analysis and findings
Paragraph 8(a) of the complaint alleges that the Respondent unlawfully threatened the
employees that bargaining would start from scratch if the Union was selected as the their
collective-bargaining representative.

The standard for determining whether statements of this type violate Section 8(a)(1) of
the Act was enunciated by the Board in Taylor-Dunn Mfg. Co., 252 NLRB 799, 800 (1980), enfd.
679 F.2d 900 (9th Cir. 1982):

It is well established that “bargaining from ground zero” or
“bargaining from scratch” statements by employer representatives
violate Section 8(a)(1) “if, in context, they reasonably could be
understood by employees as a threat of loss of existing benefits
and leave employees with the impression that what they may
ultimately receive depends upon what the union can induce the
employer to restore. On the other hand, such statements are not
violative of the Act when other communications make it clear that
any reduction in wages or benefits will occur only as a result of the
normal give and take of negotiations. [citations omitted.]

Applying this standard here, I find that the statement “[u]nderstand that all of these
things will be renegotiated when you are represented by a union. All current benefits start over
from scratch and, for them to continue, Motion Control has to agree to continue them,” could be
reasonably understood as a threat of loss of existing benefits. The language goes beyond the
carefully articulated statements in Allen’s team talks script leaving the reader with the
impression that what they ultimately receive depends, not on the give and take of collective-
bargaining, but upon what the union can induce the employer to restore. The Earthgrain
Company, 336 NLRB 1119, 1120 (2001). Further, the impression here was made in writing to
the employees at their homes, which unlike a statement spoken, would unlikely fade in time, but
would be renewed with every re-reading of the letter by the employee. It is within this context
that the statement violates Section 8(a)(1) of the Act as alleged in paragraph 8(a) of the
complaint.

Paragraph 8(b) of the complaint asserts that in the same letter the Respondent
unlawfully solicited grievances from the employees in order to discourage their support for the
Union. As noted above, many of the methods for communicating employee concerns to the
Respondent suggested in the letter were in existence long before the Union organizing
campaign began. (GC Exh. 2, p. 24.) The Board has held that an employer is entitled to
continue its policy of soliciting employee concerns, even though there is a union organizing
campaign in progress.12 TNT Logistics North America, Inc., 345 NLRB No. 21, slip op. at 3
(2005).

12 The one-to-one meetings, of course, were not a part of the policy.

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In Uarco, Inc., 216 NLRB 1, 2 (1974), cited approvingly in TNT Logistics North America,
the Board stated “it is not the solicitation of grievances itself that is coercive and violative of
Section 8(a)(1), but the promise to correct grievances...; the solicitation of grievances merely
raises an inference that the employer is making such a promise, which inference is rebuttable
by the employer. While the March 11 letter itself does not contain an explicit promise to remedy
employee complaints, the reference to the one-to-one meetings, which were on-going around
the same time, raises an inference that the Respondent was making such a promise because
that was the purpose and intent of the one-to-one meetings (i.e., to find out what was broken
and to fix it). The Respondent has not submitted any evidence to rebut that inference. To the
contrary, the undisputed evidence shows that Orsulak took detailed notes of each one-to-one
meeting (GC Exh. 34) from which he created a “to do” list of items affecting working conditions
that needed to be remedied, and that the Respondent had already begun to correct many of
those problems by the time the letter was mailed to the employees. (GC Exh. 21; Tr. 322-333.)
Thus, I find based on the evidence viewed as a whole that the Respondent implicitly promised
to remedy the employees’ complaints, and in fact did remedy almost all of those complaints,
which impressed on the employees the notion that union representation was unnecessary.
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 8(b) of the complaint.

C. The Respondent Focuses on Medley

1. Medley is assigned work in the quarantine area

a. Facts

On March 15, 2004, Quality Assurance Manager Earlene Ross, who normally worked
the first shift between 6:00 a.m. to 7 p.m. began working the third shift. (Tr. 342.) (Tr. 99, 159,
254-255.) Ross candidly testified that she went on the third shift because “we had the union
campaign going on, and Bryant [the shift supervisor], we felt, could use some extra help on third
shift....” (Tr. 343.) In addition, Ross stated that she went on the third shift because there were
some “issues” concerning the shift supervisor and the employees reporting to him that needed
to be worked out. (Tr. 343.) According to Ross, Medley had been telling her for over two months
that the shift supervisor was spending too much time in his office and the shift associates
needed training. (Tr. 343.) Ross testified that she therefore decided to work the third shift to see
what she could do to support the shift supervisor and Medley. (Tr. 343.)

According to Medley, however, when Ross switched to the third shift, she changed his
duties. (Tr. 151.) Medley testified that prior to March 15, Medley typically circled or “looped”
through the production area 2-3 times a night checking on various aspects of production. Prior
to March 15, there were no limits on how many loops he could make in a night or how long it
should take to make a loop. 13 He estimated talking to 80 – 100 employees a night. (Tr. 101,
210-211.) Medley testified that after Ross joined the third shift, she told him (1) that he had to
complete one loop by 12: 30 a.m. and upon completing that loop he had to report to the
quarantine area to check defective parts;14 (2) that he had to remain in the quarantine area

13 Ross conceded that there were no set routines for QCIs on any shift and that QCIs responded to
various production problems in the plant. (Tr. 339.) She also stated that although QCIs were not required
to make 3 or 4 loops a night, they had to make at least one during their shift.
14 The quarantine area is an open area in front of Ross’s office. (Tr. 54-55,151,154.) Ross could
observe Medley working in the area through a window in her office. (Tr. 55.)

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unless he was called by a machine operator who was having machine problems or he was
called to do a batch check at a mixer (Tr. 151, 347); (3) that after completing a task outside the
quarantine area, he was to notify the shift supervisor and immediately return to the quarantine
area; and (4) that he was not allowed to talk to any employees unless it was a work related
issue. (Tr. 151.) In addition, Medley stated that whenever he left the quarantine area to respond
to a problem, Ross would follow him to that area. (Tr. 151.)

Ross did not deny having Medley work in the quarantine area. She explained that she
assigned Medley to the quarantine area so he would get some experience doing work he
normally would not do on the night shift. (Tr. 347.) She also asserted that she assigned Medley
to work in that area only 2-3 times between March 15 – April 7 (the date he was discharged). 15
(Tr. 348.)

Ross’ explanation about why she assigned Medley to work in the quarantine area and
her testimony about how many times he worked there after March 15 is dubious. She initially
testified that when Medley first became a QCI she spent a great deal of one-on-one time
training him in several areas, including the quarantine area. (Tr. 327.) Thus, contrary to the
impression that Ross later sought to foster, the evidence shows that Medley had previously
received some extensive one-on-one training in the quarantine area. Next, the evidence shows
that Medley worked approximately six months as a QCI on the second shift before transferring
to the third shift. (Tr. 96.) His experience therefore was not limited to third shift activity, but
instead was broader than Ross’ testimony would lead one to believe. In addition, Ross testified
that quarantine parts were usually handled on another shift, which is consistent with Medley’s
unrebutted testimony that Ross had created a special position to inspect quarantine parts on the
first shift. (Tr. 348, 153.) Thus, the need for Medley to learn how to inspect quarantine parts on
the third shift in the middle of a union organizing campaign is also questionable. Finally, Ross’
explanation for assigning Medley to the quarantine area is inconsistent with one of the reasons
she gave for switching herself to the third shift, that is, to support the working relationship
between the shift supervisor, Medley and the employees on the floor. Ross testified that Medley
had complained for months that the shift supervisor was spending too much time in his office
and greater interaction was needed with the employees. Inexplicably, Ross sought to address
this problem by assigning Medly work in the quarantine area thereby restricting his interaction
with the floor employees.

Equally questionable is Ross’ assertion that Medley was assigned to work quarantine
parts only a few times. At trial, Ross hesitated and equivocated when she responded to
Respondent’s counsel’s question:

Q. ...How often, in your estimation, is it that you would have
Medley work in the quarantine area during that, during that time?

A. It was a couple of times, a couple, three times.

(Tr. 348.)

She also did not explain how many hours Medley was required to work in that area each time
she told him to work there. Nor did Respondent’s counsel pursue this line of questioning with
her. The lack of detail about how many days, and how long each day, calls into question her

15 Ross also did not deny telling Medley to check-in with the shift supervisor when he returned to the
quarantine area nor did she deny following Medley around the plant when he checked a batch or a
machine.

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very circumspect answers. The equivocation and lack of detail in Ross’ testimony leads me to
conclude that her “estimation” is not accurate.

In contrast, Medley was specific on this point. He testified on rebuttal “I worked the
quarantine area every night from 12:30 a.m. to 7:00, yes, 12:30 a.m. to 7:00 a.m., unless I was
called away for a batch check. I was there every night.” (Tr. 427.) His testimony was also
corroborated to an extent by Mixer Operator Sonja Turner, who stated that she worked overtime
2 or 3 times a week and saw Medley working by himself in the quarantine area.16 (Tr. 255-256,
271.) The specificity with which Medley testified and Turner’s partial corroboration makes his
testimony on this point more credible.

In addition, Medley testified that Ross restricted his access to use the copy machine in
the front office, after she switched to the third shift. (Tr. 151.) According to Medley, he was
required to ask permission from Williamson or Ross to make a copy and one of them would
escort him to the machine.

In contrast, Ross testified that access to the front office was limited for all production
workers in late January or early February 2004 because employees were eating their lunches in
the front office and making a mess. (345, 346.) She stated that a notice was placed on the door
between the vendateria and the hall stating that the doors leading to the office would be locked
at 5:00 p.m. (Tr. 346.) She also testified that anyone needing access to the front office to use
the copy machine could see a supervisor to unlock the door. She denied that the change was
made in order to prevent Medley from using the copy machine. (Tr. 346.)

No one corroborated the testimony of either witness on this point. The alleged conduct,
however, is consistent with other aspects of questionable conduct by Ross, designed to closely
monitor Medley’s activities, such as transferring herself to the third shift shortly after Medley
announced his union activity, assigning work to Medley in the quarantine area, which was
located outside of Ross’ office, having him check-in with the shift supervisor after he completed
a task on the plant floor, and following Medley whenever he left the quarantine area. Because of
the similar nature of the conduct, I find that it is more likely, than not, that Ross restricted
Medley’s access to the front office after she came onto the third shift. I therefore credit Medley’s
testimony on this point.

Finally, Medley testified that when Ross switched to the third shift she told him he was
not to talk to other employees unless it was work related. (Tr. 150.) Ross denied telling Medley
that he was not allowed to talk to other employees unless it was work related. (Tr. 331, 331-
332.) Again, this type of directive is consistent with the pattern of conduct that Ross undertook
to maintain tighter control of Medley, a known union advocate, during work hours. I therefore
credit Medley’s testimony on this point.

16 On cross-examination, Respondent’s counsel sought to impeach Turner’s testimony on this point
by reading from one of her four pretrial affidavits, to wit: “it says I saw, on a couple of occasions, Steve
[Medley] sitting in the re-work area where bad blocks were checked by hand.” (Tr. 271, 269-270.)
Although her testimonies are not completely consistent, the disparity is not particularly great. In addition, I
decline to rely on this segment of cross-examination for impeachment purposes because I do not know
the context within which the statement was made in the pretrial statement and because Turner was not
asked to explain the apparent inconsistency with her trial testimony. See Fed.R.Evid. 613 (b).

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b. Analysis and findings

1. The 8(a)(1) violation

Paragraph 5(b) of the complaint alleges that on or about March 4, 2004, and on various
unspecified dates thereafter, the Respondent through Ross promulgated an overly board no-
solicitation rule by telling Medley that he was not allowed to talk to other employees unless it
was work related.

I have credited the testimony of Medley and I find that by telling him that he could not
talk to other employees unless it was work related, Ross promulgated a discriminatory no-
solicitation rule because she did not prohibit employee conversation about other subjects during
work hours. There is no evidence that the Respondent had a no-solicitation policy. None
appears in the employee handbook. There is no evidence that any employee, other than
Medley, was told not to talk to other employees unless it was work related. In addition, the rule
was promulgated soon after Medley identified himself as the lead Union advocate and in
conjunction with other unlawful restrictions imposed upon Medley because of his Union activity.
Accordingly, I find that the rule was intended to discourage Medley from engaging in Union
activity in violation of Section 8(a)(1) of the Act. Emergency One, Inc., 306 NLRB 800, 806
(1992); F. Mullins Construction, 273 NLRB 1016, 1024 (1984).

Relying on Sarkes Tarzian, Inc., 157 NLRB 1193, 1213 (1966), the Respondent asserts
that even if Ross did promulgate a no-solicitation rule, no violation occurred because the rule
was the never enforced. However, in Sarkes Tarzian, unlike here, the issue was whether the
employer “disparately” promulgated and enforced a rule pertaining to the promulgation and
communication of information on a locked glass enclosed bulletin board in the cafeteria. There,
the credited testimony showed that the employer placed on an enclosed bulletin board all items
requested, but that no prounion literature had been given to post on the board. Because there
was no evidence showing that the employer refused to post any campaign propaganda or
prounion literature on the bulletin board, there was no evidence showing that the board was
used in a discriminatory manner. Similar circumstances do not exist here.

Finally, whether the rule actually impeded Medley’s union activity is not of consequence.
The promulgation of the “no talking” rule, standing alone, unlawfully interferes with Medley’s
Section 7 rights because it was intended to discourage and impede protected activity.
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act as alleged in
paragraph 5(b) of the complaint.

2. The 8(a)(3) violation

Paragraph 9 (a) and (b) allege that the Respondent, through Ross, unlawfully isolated
Medley and also subjected him to closer supervision.

In Wright Line, a Div. of Wright Line, Inc., 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board established an analytical framework
for deciding discrimination cases turning on employer motivation. The General Counsel must
persuasively establish that the evidence supports an inference that union activity was a
motivating factor in the employer’s decision.17 Specifically, the General Counsel must establish
union activity, knowledge, animus or hostility, and adverse action, which tends to encourage or

17 In re Manno Electric, Inc., 321 NLRB 278, 280, fn. 12 (1996).

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discourage union activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Inferences of animus
and unlawful motive may be inferred from the total circumstances proved and in some
circumstances may be inferred in the absence of direct evidence. Fluor Daniel, Inc., 304 NLRB
970 (1991). Once accomplished, the burden shifts to the employer to persuasively establish by
a preponderance of the evidence that the reasons for its decision were not pretextual or that it
would have made the same decision, even in the absence of protected concerted activity. T&J
Trucking Co., 316 NLRB 771 (1995).

The undisputed evidence shows that Medley was the principal Union advocate and that
his role in seeking to organize the Respondent’s employees was known to management,
including his immediate supervisor and the Company human resources manager. The evidence
also shows that the Respondent opposed the Union’s efforts to organize. In addition, the
evidence shows that soon after Medley disclosed his union activity to Ross and Orsulak, Ross
switched to the third shift admittedly because of the union campaign. She also assigned Medley
work in the quarantine area where he could be easily observed from her office, required him to
check with the shift supervisor after making a loop through the plant, and positioned herself in
areas adjacent to where Medley was performing other aspects of his job. This evidence
supports a reasonable inference that the Respondent opposed Medley’s union activity.

The evidence falls short, however, of showing that the Respondent “isolated” Medley
from other workers in the plant. Although it is undisputed that he was assigned work in the
quarantine area, and that he performed that work alone, the evidence also shows he continued
to perform his other QCI duties, making loops, responding to mixer operator calls, and checking
equipment. In the course of doing so, he interfaced with other employees on his shift, albeit not
as often. The evidence viewed as whole nevertheless shows that Medley was not “isolated”
from the other employees. Accordingly, I shall recommend the dismissal of the allegations in
paragraph 9(a) of the complaint.

On the other hand, the credible evidence shows that Ross switched to the third shift
because of Ross’ union activity, assigned him work in an area immediately outside of her office,
required him to check-in periodically with the shift supervisor, positioned herself in areas of the
plant where she could see him and he could see her as he worked, and restricted his access to
the plant front office, unless accompanied by a supervisor. Thus, the evidence viewed as a
whole shows that after announcing his support for the Union, Medley was subjected to closer
supervision in order to discourage and interfere with his union activity. Accordingly, I find that
the Respondent violated Section 8(a)(3) of the Act as alleged in paragraph 9(b) of the
complaint.

2. Medley’s second discussion with Ross about the Union
a. Facts
On or about March 20, 2004, Ross and Medley were working together on an ultrasonic
tester in the quality control lab.18 (Tr. 158.) While they were working, Medley initiated another
conversation with Ross about the Union telling her why he thought the Union would be good for
the employees. She disagreed telling him why she thought the Company did not need a union.
Medley characterized the conversation as a rehash of the prior conversation that they had about
“her working in a company that had a Union.” (Tr. 159.) He stated that at some point Ross

18 On March 16, 2004, the Union filed a petition for election seeking to represent a collective-
bargaining unit of 81 employees. (GC Exh. 31.)

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asked him “why do you think you have to be a leader for these people?” (Tr. 159-160.) As
Medley testified:

And I asked her what she meant by that and she said, you know,
you don’t need to lead these people. Do you think they’re stupid?
And I, of course, replied, no, I don’t think they’re stupid.

I just think that they don’t – were never given the information that
they needed to make an informed decision, and that they never really
had anybody that they could believe in or trust within this company
that would stand up for them.

And, you know, she told me again that, you know, you don’t need
to be that person. You need to let them make up their own mind. And
that was basically the end of the conversation.

(Tr. 160.)

Medley elaborated further that Ross repeated:

Again, basically, you know, she just said that the Union wasn’t going
to come in there and be able to fix any of the problems that we had.
You know, they weren’t going to be able to come in there and get people
pay raises, or you know, extended time off.

People were still going to have to do their jobs. You know, that was
basically it. It was basically a down play of what the Union could and
could not do and specifically, again, the UAW.

(Tr. 160 -161.)
Ross could not recall specifics of any particular of discussion with Medley in the quality
control lab in March 2004. (Tr. 332.) She explained that she had many discussions in the quality
control lab with Medley and could not remember every date that they spoke in the lab. (Tr. 332.)
She denied telling Medley that having a union was futile or that there was nothing that a union
could do to fix problems at Motion Control. (Tr. 327-328.) She reiterated that she only related to
him her experiences working for a unionized employer. (Tr. 328-329, 330-331.)

In addition, Ross denied telling Medley to stop engaging in union activities. When asked
if she ever told him he should not be a leader in the organizing drive, she vaguely responded:

No. The discussions I had with Mr. Medley were very broad,
general, why we were showing him things in the lab, you know,
test equipment and things to do, and just broad general that, you
know, statements that not everybody appreciates when somebody
is trying to do things for them. So that’s all.

(Tr. 336.)

The Respondent’s counsel argues that it is questionable whether the conversation ever
occurred. He points out that there was no reason for Medley to re-initiate the same conversation
with Ross that he had a month earlier because Ross had told him about her less than positive
experiences as a union member. He also asserts that it is unlikely that Medley would initiate

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such a conversation with Ross because by this time he no longer trusted her. Indeed, Medley,
himself, testified that in early March, when he met with Orsulak and Ross to announce that he
was a Union advocate, he asked to have another employee present because he no longer
trusted Ross. In addition, by mid-March, Ross had switched to third shift and placed Medley
under closer supervision. Thus, Respondent’s counsel asserts that under these circumstances it
is unlikely that Medley would engage Ross in a one-to-one conversation about the Union.

However, Ross did not deny having such a conversation with Medley in the quality
control lab in March 2004. Rather, she testified that she could not recall a conversation or any
specific conversation at that time or place. Although she generally denied ever telling Medley
not to engage in union activities, she conceded in answer to Respondent’s counsel’s abstract
question that at some point she made “statements [to him] that not everybody appreciates when
somebody is trying to do things for them.” Her testimony was vague and selective on this point.

In contrast, Medley’s account of the conversation was direct and detailed. He narrated
the substance of the conversation with ease. In response to the general question, “who said
what during your conversation with Ms. Ross,” he candidly stated that Ross reiterated the
reasons for which she believed a union would not be good for the employees and pointed out
that her response was based on prior experience with a union. I therefore credit his account of
the conversation.

b. Analysis and findings

Paragraph 5(c) of the complaint alleges that during this conversation Ross unlawfully
implied that it was futile to select a union because it could not do anything for the employees.
The undisputed evidence shows that Medley initiated the conversation, which he testified was a
“rehash” of what he and Ross discussed one month before. He pointed out that Medley
explained that her perception of unions was based on her personal experience as a former
union member. As stated in Section B.3.b above, I find that Ross was stating her personal views
as protected by Section 8(c) of the Act. Accordingly, I recommend the dismissal of the
allegations of this paragraph of the complaint.

Paragraph 5(d) of the complaint alleges that during this conversation Ross unlawfully
discouraged Medley from engaging in union activity by telling him that he did not need to lead
the Union organizing drive. In its posthearing brief at page 30, the General Counsel asserts that
“Ms. Ross’ statements that Medley did not need to lead the employees reasonably tends to
coerce employees from exercising the § 7 rights as an implied threat.” It is further asserted that
the Board will determine whether the comments are unlawful by considering all of the
surrounding circumstances, including contemporaneous unfair labor practices. In the latter
connection, the General Counsel argues that although Ross’ comment was vague, it
nevertheless was coercive when considered in context of the events surrounding the
statements, e.g., the team talks, the March 11 letter, the one-to-one meetings, and the closer
supervision of Medley.

In support of this position, Counsel for the General Counsel relies on Debbie Reynolds
Hotel, 332 NLRB 466 (2000); Magnesium Casting Company, Inc., 259 NLRB 419 (1981); and
Greensboro Hosiery Mills, 162 NLRB 1275 (1967). A careful reading of those cases reveals that
none is factually applicable here.

In Debbie Reynolds Hotel, the “Respondent took drastic, immediate, and persistent
measures to thwart its employees’ support for the Union in the representation election. This
unlawful course of conduct began even before the petition was filed and escalated quickly after
the filing. It reached its peak with the commission of several “hallmark” violations, including

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subcontracting out most of the unit work and laying off most of the unit employees, discharging
[two employees who supported the union], and repeatedly threatening job loss and closing, and
continued even after the election.” 332 NLRB at 467. The threats were express and the
comments were not vague. There, unlike here, the unlawful conduct warranted a Gissel
bargaining order.19

In Magnesium Casting Company, Inc., supra, 259 NLRB at 422, a supervisor, while
discussing the possibility of an employees’ transfer, told the employee that it would be in his
best interest to keep a low profile regarding union activities. The administrative law judge
concluded that the supervisor’s words imparted fear that the employee’s transfer might not be
granted because he was active on behalf of the Union. “The clear implication of [the
supervisor’s] comment is that continued activities by [the employee] would prevent or impede
his transfer.” 259 NLRB at 423. In the instant case, Ross did not threaten Medley or even hint
that some detriment to Medley would result if he continued to lead the organizing campaign.

In Greensboro Hosiery Mills, Inc., supra, 162 NLRB at 1276-1277, the employer posted
several unlawful coercive posters, one of which advised employees that “if this [u]nion were to
get in here, it would not work to your benefit but, in the long run, would itself operate to your
serious harm.” The Board held that the unspecified nature of the harm, coupled with the
employer’s statement that he had a “serious belief” that the harm will occur, carried an implied
threat of reprisal which in their tendency as well as their design operate to restrain and coerce
employees from exercising their rights protected by the Act. Again, however, in the instant case
there is no evidence of an implied threat of reprisal. Instead, Counsel for the General Counsel
seeks to infer coercion based on the Respondent’s other conduct which, aside from closely
supervising Medley and telling him to talk about work related items only, was rather limited in
scope and not specific to him.

That notwithstanding, I do not agree with the General Counsel that it is necessary to
infer coercion from the surrounding circumstances in order to find a violation. Rather, I find that
Ross’ spoken words on their face had a tendency to interfere with Medley’s Section 7 rights
because they sought to discourage him from engaging in union activity. Ross’ statement to
Medley “you don’t need to lead these people” could have no other intended purpose than to
discourage him from continuing to advocate for the Union. There is no evidence, nor can it be
inferred from the evidence, that Ross’ remarks where based on her prior union experience and
therefore they fall outside the protective parameters of Section 8(c).

Thus, I find Ross’ remarks to Medley that he did not need to lead the employees in the
union organizing drive were unlawful because they tended to discourage his participation in
activities protected by Section 7 of the Act. Accordingly, I find that the Respondent violated the
Act as alleged in paragraph 5(d) of the complaint.

3. Batch 432 and Medley’s discharge
a. Facts
On April 6, 2004, Mixer Operator Mathew Sheppard worked the third shift, along with
QCI Steven Medley. (11:00 p.m. – 7:00 a.m.) As a mixer operator, Sheppard was responsible
for reviewing the batch sheets and pre-staging the batch ingredients along the conveyer belt

19 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

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leading to the mixer.20 (GC Exh. 8.) One ingredient on April 6 was a S1025 super sack of
reclaimed dust, which typically is added to batches.21 The super sack dust is placed in a cone
hopper by forklift and dispensed into the mixer by a computerized controller, which is
programmed by the mixer operator. (Tr. 31, 109.) After the QCI signs off on the blend sheet, the
mixer operator presses the “start” button on the controller and then the “green” button on the
scale to allow the super sack dust to weigh into the mixer. (GC Exh. 9.) When the required
amount of reclaimed dust empties into the mixer, a small ticket, much like a cashier register, is
printed out of the controller. (See GC Exh. 5B.)

On April 6, Sheppard lined up batches 430, 431, and 432 of formula 5011 for mixing and
called Medley for a batch check.22 (GC Exh. 3A, 4A, and 5A.) The evidence shows that Medley
checked the batches and signed off on all three batches at approximately 1:05 a.m., thereby
authorizing Sheppard to run all three batches sequentially. (Tr. 114 -115, 121.)

With batches 430, 431, and 432 moving toward the mixer, Sheppard lined up the
ingredients for two more batches of formula 5011, i.e., batches 433 and 434, and called Medley
for another batch check. (GC Exh. 6A and 6B.) As batch 432 was being added to the mixer, the
super sack dispensed 392 pounds of S1025, ran out of dust, and had to be changed. (GC Exh.
5(b).)

Medley testified that Sheppard called for him to check batches 433 and 434 at
approximately 1:30 – 1:40 a.m. (Tr. 123-124.) When Medley arrived at the mixing area, he
doubled checked the printer tickets for batches 430 and 431, as he was required to do, in order
to make sure that the proper amount of reclaimed dust was added to those batches. 23 Medley
further testified, however, that when he went to check the ticket for batch 432, the ticket was not
there. (Tr. 165.) He stated that “[t]he supersack dust was sitting on the floor and it was in the
middle of being changed. So at that point, as I was trained to do, I went ahead, verified
everything was set up correctly for 433 and 434, and continued to do my job.” 24 (Tr. 165.) The
evidence shows that Medley signed off on batches 433 and 434 at approximately 1:50 a.m., and
left the mixing area.

In the meantime, Sheppard finished changing the super sack for batch 432,
reprogrammed the controller, and added more reclaimed dust. In the course of doing so,
however, he made an arithmetic error and programmed the controller to add 555 pounds of
dust, which was 97 pounds too much. (Tr. 121; GC Exh. 5(b) and (c).)

20 One or more batches could be sequentially run off the same conveyor belt into the same mixer.
21 A by-product of grinding brake linings is “reclaimed” dust that is collected and bagged in either 50
pound bags or a “super sack” which weighs approximately 1800-2000 pounds and is approximately 7 feet
high and 7 feet wide. (Tr. 22.)
22 Each batch required 850 pounds of S1025 super sack dust, which meant that one super sack
would have been sufficient to complete two batches.
23 The evidence shows that when the controller prints out the ticket, the mixer operator staples the
ticket to the blend sheet.
24 Medley stated that a good operator could change a super sack in 10 minutes. (Tr. 162.) While he
did not know how long it took Sheppard to change the super sack for batch 432, he testified that typically
it took Sheppard 20-30 minutes to make a change. (Tr. 126.) More significantly, he testified that he had
been trained and told by supervisors and other QCIs that if a super sack had to be changed he should not
wait for the operator to finish changing the bag. Instead, he should checkoff subsequent batches, allow
the mixer operator to continue to run, and when he returned for a subsequent batch check, reverify the
tickets. (Tr. 164.)

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Later that shift, the press area reported that material was cracking and not curing
properly. (Tr. 161.) Medley testified that he went to the press area, checked the press
temperature, mold temperature, and oil pressures in attempt to isolate a problem in the press
area. While in the process of doing that, Sheppard called him again to check a batch of formula
5235 material. (Tr. 161-162.) Medley testified that when he returned to the mixing area, he
decided to check the blend sheets for batches 430 - 433 “because, you know, there’s always a
chance for a mistake that you missed something ... [a]nd, plus, he had had a dust sack – a
supersack change of dust that had not been re-verified yet, so my first step was immediately to
pull those blend sheets, check the tickets, and make sure that everything was correct.” (Tr.
162.) Medley stated “[w]hen I got to the mixing area, I found what you have listed as General
Counsel Exhibit 5(c) laying on the table. My first – the first thing I saw was the numbers 392 and
555, adding up to 847. And just by looking at that, I knew it was immediately wrong.” (Tr. 162.)
Medley testified that he found the ticket, saw the numbers, and realized that was the source of
the problem at approximately 2:00 a.m. (Tr. 121.)

According Medley, he stopped production, brought the mistake to Sheppard’s attention,
and reported it to the third shift supervisor Williamson.25 (Tr. 163.) He and Williamson
quarantined batches 430, 431, and 432. When Ross arrived at approximately 7 a.m., Medley
spoke to her outside of her office telling her that there was a problem. They went into her office
where he told her that Sheppard had mixed some bad batches. (Tr. 166.) There are two
versions of what transpired next.

Medley testified that after he entered Ross’ office he told her that Sheppard put an extra
97 pounds of dust into a batch. Before he could say another word, Ross told him to get out of
her office. (Tr. 166, 174.) According to him, their conversation lasted 30 seconds.

Ross testified that when she came to work on April 6, she saw biscuits and slabs of
formula 5011in the quarantine area. (Tr. 363.) She told Medley to gather his paperwork from the
night and bring it to her office. Ross testified that while she was looking over the paperwork,
Medley told her that he was called to the cure press area because the slabs were cracking.
Medley told her that he went to the mixing area where he noticed on a piece of paper that the
mixer operator had made a math error causing 97 extra pounds of dust to be added to the
blend. (Tr. 364.) Ross further testified that she asked Medley if he had checked the tickets when
he went back to check the other batches (430 and 431) and he responded, “no, he didn’t.” (Tr.
364.) At that point, she asked him to leave her office. She testified that their meeting lasted
approximately 20 minutes. (Tr. 377.)

Ross further testified that she reviewed all the batch sheets and quarantine tickets, and
spoke with the third shift supervisor, Bryan Williamson, and production manager, Fred Allen, to
find out what they knew about the incident. Afterwards she asked Medley to come to her office,
where he told her for the first time that he could not double check batch 432 when he double
checked batches 430 and 431 because the mixer operator was printing off the batch ticket.
(Tr. 365.) Ross concluded that Medley had changed his story and that he should have waited
for the ticket to print. (Tr. 366.)

In addition, Medley testified that later that morning, as he was standing outside the
quality control lab, Ross approached him stating, “I need to see all your paperwork.” (Tr. 167.)
He was holding a clipboard with about ½ inch stack of paper. On top of the stack was a quality

25 Medley stated that he went over everything with Williamson step-by-step because he knew that he
had to watch his P’s and Q’s because of his Union activity. (Tr. 163.)

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control inspector sheet and underneath it were some drill patterns, product codes, and other
work related documents. On the very bottom was a Union flyer. (Tr. 168.) According to Medley,
Ross abruptly took the clipboard away from him, flipped through the papers, took the Union
flyer, handed the clipboard back to him, and walked away with the flyer. He stated that he called
out to Ross, “[H]ey, that’s mine.” She kept walking, but replied, “I’ll be back.” Medley testified
that 20 minutes later Ross returned the flyer to him whereupon he said, “are you done with it?
Would you like a copy of it so that everybody can read it? And she said, no, they’d already read
it.” (Tr. 168-169.)

Ross did not deny taking the clipboard. She testified that she asked Medley if she could
see his clipboard because she noticed that the documents on the board appeared to be out of
date. As she flipped through the papers, she came across the flyer on the bottom. Ross testified
that there were scribbles on the flyer and that she was not sure what it was. She asked Medley,
“what’s this? And he said, oh, that’s mine, it’s personal. He said, but, if you want to read it, go
ahead.” (Tr. 337.) Ross stated that she took all the papers back to her office, looked at the flyer,
and gave it back to Medley. She denied that she took the flyer without his permission and
further denied that Medley asked for the flyer back. (Tr. 338.)

After Ross concluded her review, she met with Norman Tarbell, Fred Allen, and Ron
Kramer, the acting plant manager, to discuss what occurred. (Tr. 368.) The unrebutted
evidence shows that they reviewed the personnel files of both Sheppard and Medley, and the
Respondent’s progressive discipline policy, to determine the proper disciplinary action.26 (Tr.
368; GC Exh. 2 at 12-13.)

Medley’s disciplinary record disclosed that on December 1, 2003, while working as a
second shift QCI, he received a written warning for failing to ensure that the proper edge code
was placed on brake linings. An edge code allows the Respondent to track a product through
production and to trace it in the event of a recall. (Tr. 350.) Medley missed an incorrectly
numbered edge code causing 5,560 pieces of product to be incorrectly coded. (Tr. 350-351; R.
Exh. 6, 10.) Brian Staples, the third shift QCI, also failed to catch the same error. He received a
one-day suspension. (Tr. 354-356; R. Exh. 9, 10.)

Approximately one month later, on January 20, 2004, Medley received a one-day
suspension for signing off on four batches with the wrong fiberglass component. (Tr. 197, 357;
R. Exh. 13, 21.) All four batches of material had to be quarantined. (Tr. 358.)

Ross testified that Kramer left the meeting. She, Tarbell and Allen decided to terminate
both employees based on the severity of the mistake and their prior disciplinary records. (Tr.
370.) The following day, April 7, Tarbell and Ross met with Medley. (Tr. 175.) Medley testified
that Tarbell gave him the opportunity to explain what occurred the night before. When he
finished, Tarbell terminated him. (Tr. 176.) Medley stated that Tarbell did not tell him that the
termination was based in part on his prior disciplinary record. (Tr. 396.)

b. Credibility resolutions

I credit Ross’ unrebutted testimony that some of the papers on Medley’s clipboard were
outdated and therefore she took the clipboard from him. I further credit her testimony that she
took all the papers back to her office and that Medley did not object to her taking the flyer, which

26 The evidence shows that on January 30, 2004, Matthew Sheppard received a one-day suspension
for running a batch with a missing trace component. (Tr. 393; R. 21.)

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was on the bottom of the stack. It is implausible that Ross would return the outdated papers to
Medley, because that would have been counterproductive. It is also implausible that Medley
would object to Ross taking the flyer. By this time, Medley had twice initiated conversations with
Ross about the Union during which he sought to convince her that the employees would benefit
from having a Union. Medley knew that Ross knew he was leading the Union organizing drive,
so it is unlikely that he would he object to her reading a flyer that was intermixed with his work
papers. I do not credit Medley’s account of what occurred.

In addition, Medley’s testimony about whether he had an opportunity to explain to Ross
about the extra 97 pounds of reclaimed dust is dubious. He testified that he initially told Ross
outside her office that Sheppard ran some bad batches whereupon she said, “let’s go into my
office.” (Tr. 166, 174.) Once inside the office, Ross asked him, “what’s the problem?” and he
explained that Sheppard had added an extra 97 pounds of reclaimed dust to a batch. According
to Medley, Ross immediately told him to get out of her office, so he left, and they never
discussed the matter again. (Tr. 167.) It is hard to believe that one minute Ross would ask
Medley to come into her office and then seconds later tell him to leave without getting a detailed
explanation of what occurred. The evidence shows that Ross and Medley were accustomed to
having candid exchanges and that she was not reluctant to ask questions. It is more likely, than
not, that Ross sought more information from Medley, rather than abruptly cutting him off.

Indeed, Medley later contradicted himself and equivocated on the extent to which he
and Ross went “over stuff” in her office. He was asked by Counsel for the General Counsel:

Q. Just to be clear for the record, if I understood you correctly,
you have the thirty-second conversation with Ms. Ross, where
she kicks you out of her office, and then she comes back and
takes your clipboard, but she never asks you again what happened
or your version of events?

A. Yeah. To my knowledge, there was never a sit down discussion
in her office about what happened that night. I may have spoken to
her that morning and she may have asked me to go over stuff, but
there was never any specific instance of her calling me into her office
to have that discussion. I don’t recall that.

(Tr. 180.)

His testimony adds further doubt of what he told Ross about the extra 97 pounds of reclaimed
dust and where the conversation took place.

On rebuttal, Medley implied that contrary to his earlier denial, he did talk to Ross about
the incident a second time. He was asked:

Q. Mr. Medley, when you discussed the incident of April 6th
with Ms. Ross, you heard her testify that you gave her one
story, then you came back and told her a different story. Is
that what happened, sir?

A. No, sir. I was not given a chance to even explain the story
the first time, so there’s no possibility that I could have changed
anything, because she only heard one story.

(Tr. 427.)

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If Medley did not have an opportunity to explain the story the first time, as he asserts,
then when else could Ross have heard the story? Medley’s answer implies that after the initial
discussion he spoke again with Ross about the incident, which contradicts his earlier testimony
that he did not have any subsequent discussions with Ross after the initial conversation. (Tr.
167.)

Based on Medley’s contradictory, equivocal, and unconvincing testimony. I do not credit
his assertion that Ross did not review the incident with him or give him an opportunity to explain
what occurred. Rather, I credit Ross’ testimony that she spoke with Medley twice on April 6
about the incident and that in the first discussion he stated that he did not check the ticket for
batch 432 and in the second discussion he stated that he could not check the ticket because it
was still printing out.

Equally unconvincing is Medley’s explanation for why he did not wait for the ticket to
print out before leaving the mixing area. Medley did not deny that he was required to double
check the tickets for the super sack dust for batches 430, 431, and 432, when he was called
back to batch check 433 and 434. (Tr. 122.) Rather, he testified that when he went to check the
ticket for batch 432, it was not there. (Tr. 165.) He stated that “[t]he supersack dust was sitting
on the floor and it was in the middle of being changed. So at that point, as I was trained to do, I
went ahead, verified everything was set up correctly for 433 and 434, and continued to do my
job.” (Tr. 165.)

However, Medley did not state that he attempted to double check the ticket for batch 432
after signing off on 433 and 434 or explain why he could not do so. The undisputed evidence
shows that all the batches of formula 5011 ran in sequence along the conveyor belt (i.e., 430,
431, 432, 433 and 434). Thus, waiting for the ticket to print or even waiting for Sheppard to
complete the super sack change for batch 432, after Medley had signed off on batches 433 and
434, would not have held up production because nothing behind batch 432 could be run until
the change was completed.

Indeed, Medley’s testimony shows that he would have had to wait less than 10 minutes
to double check the ticket for batch 432. He stated that he signed off on batches 433 and 434 at
1:50 a.m. and left the mixing area. (Tr. 124.) He further testified that when the cracking problem
was reported he returned to the mixing area where he first saw the ticket for batch 432 at
approximately 2:00 a.m. (Tr. 121.) Thus, the evidence supports a reasonable inference that
Medley would have had to wait less than 10 minutes for the ticket to print. It also supports a
reasonable inference that the ticket was available for review at 1:50 a.m. or within a few minutes
of that time, but Medley did not attempt to check for the printed ticket after signing off on
batches 433 and 434.

Nor does the evidence show that Medley was compelled by Company policy to leave the
mixing area, after signing off on batches 433 and 434, without waiting to double check the ticket
for batch 432. Certainly the rambling and convoluted testimony of General Counsel witness,
Sonja Turner, does not establish that it was Company policy not to wait to double check a ticket
after signing off on subsequent batches down the line. (Tr. 240 – 242.)

A mixer operator, and Union advocate, Turner testified about her experience working
with second shift QCI Donald Pritchett. She testified that if she was changing a bag, when
Pritchett came over to do a batch check, he might “hang around and wait till I change the sack.

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He might walk away, come back later.” 27(Tr. 246.) She added that he might check subsequent
batches that are ready for batch check, and he might walk away, then come back to give her
another batch check. (Tr. 246 -247.) Asked a second time to explain what Pritchett might do if
she was changing a bag, Turner testified that he would move down the line checking the
batches of what she had lined up. (Tr. 250.) She did not state when he would come back to
double check the bag she was changing. Her testimony fails to support a reasonable inference
that after checking batches 433 and 434, Company policy dictated that Medley leave the mixing
area without re-verifying batch 432.

Nor does the testimony of Kenneth Bundy, a former employee, who worked as a second
shift quality control inspector,28 show that it was against Company policy for Medley to wait to
double check batch 432, after signing off on batches 433 and 434. He testified “when I was
called back to make a batch check, before I would sign off on anything else, I would go over to
the table and check” the super sack ticket. (Tr. 286.) Bundy was asked to read Ross’s account
of what transpired on April 6 (GC Exh. 11) and then asked if he ever had a similar situation to
what is described in that document. He responded, “No.” (Tr. 287.) Counsel for the General
Counsel then asked him if he ever had a situation “where an operator had batches lined up on
the belt and you signed the blend sheets, but, for whatever reason, one of those batches is not
complete?” He stated, “yes” and continued by explaining that when he has been presented with
that situation he told the mixer operator “that I couldn’t sign off on it until he checked the line to
make sure all the ingredients were on the line.” (Tr. 287-288.) In response to another leading
question, Bundy stated, “No,” he would not be able to sign off on blend sheets from other
batches that are on the line, if the third batch of the prior three batches was not complete. (Tr.
288.) Counsel for the General Counsel pressed Bundy further asking him if the operator was in
the process of cutting that batch [i.e., the third batch]” what would Bundy do? Bundy responded:
Well, when I come over, if he calls for a batch check and I came over there, and he’s cutting that
batch in that’s unfinished, I would stop him right there, you know, to check to see if I can do
another batch check.” (Tr. 289.) His testimony shows that he would not allow the mixer operator
to proceed with the subsequent batches until the prior batch was completed, which contradicts
Medley’s testimony.

Finally, Bundy was shown the blend sheets for batches 432, 433, and 434. (GC Exhibits
5(a), 6(a) and 7(a). He testified if batch 432 had been signed off, but was not cut when he was
called back to sign off on batches 433 and 434, he would go ahead and sign off on the latter two
batches because if he waited to do that it would slow the process up. (Tr. 290.) Bundy did not
testify, however, that he could not or would not double check batch 432 again after he
completed the batch check for 433 and 434 nor did he testify that he would not wait for a ticket
to print if the dust was being added.

Neither the testimony of Medley, Turner or Bundy show that after signing off on batches
433 and 434, Company policy required Medley to leave the mixing without double checking
batch 432. Nor is there any other evidence which would support such an assertion.

Medley’s testimony of when he actually signed off on batches 433 and 434 and when he
reviewed the ticket for batch 432 casts further doubt on his explanation. According to Medley,
he signed-off on batches 433 and 434 at 1:50 a.m. and left the mixing area without reverifying

27 That testimony contradicts Medley’s assertions that QCIs routinely continued down the line instead
of waiting for a sack change.
28 The evidence shows that Bundy quit his job with the Respondent shortly after he was told that he
would receive a third disciplinary action.

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batch 432. He subsequently was told that material was cracking in the press area. He went to
the press area, checked the press temperature, the mold temperature, the oil pressures, and
made sure the cycles were correct. (Tr. 161.) Medley stated that while in the press area,
Sheppard radioed him to return to the mixing area to sign off on two batches of a different
material, formula 5235, so he returned to the mixing area. Because of the material cracking
problem and because he knew that batch 432 had not been re-verified, he decided to check the
blend sheets for the formula 5011 material. (Tr. 164.) Medley stated that when he got to the
mixing area he found the printed ticket for batch 432 laying on the table and immediately saw
that the math was wrong. (Tr. 162; GC Exh. 5(c). Medley testified that he discovered the math
error “probably close to 2 o’clock maybe a.m.” (Tr. 121.)

It is implausible that so much could have happened in 10 minutes or less. Sheppard
would have had to complete the bag change, weigh in the dust, and send batch 432 down the
line through not one, but four other areas. Indeed, Medley testified that after a batch is mixed, it
must be preformed, cured, ground, and drilled. (Tr. 125.) While it is possible that Medley could
be wrong on the time that he found the printer ticket for batch 432, it is equally possible that the
bag change was completed and that the ticket for batch 432 was on the table when Medley
finished checking batches 433 and 434 at 1:50 a.m., but he did not look for the ticket on either
the blend sheet or the table before leaving the mixing area. I am therefore skeptical about the
timing of the events as related by Medley.29 I am also skeptical of Medley’s testimony that in the
middle of troubleshooting a serious problem he was coincidentally called back to the mixing
area by Sheppard and upon arriving there he coincidentally found the printed controller ticket
lying on the table.

Notably, the one person who could corroborate Medley’s account of what transpired that
night and when it occurred was not called by the General Counsel as a witness at trial: that is,
Mathew Sheppard. Although Sheppard no longer works for the Respondent, because he was
fired along with Medley for the April 6 incident, it is troubling that he was not subpoenaed by the
General Counsel as a corroborative witness. Nor was any reason given for not doing so. While I
do not draw an adverse inference from his absence, it unmistakably is a missed opportunity for
the General Counsel possibly to bolster Medley’s credibility concerning a crucial part of his
testimony.

Based on the evidence viewed as a whole, I find that Medley’s explanation at trial of
what he did, when he did it, and why he did it, is unpersuasive.

c. Analysis and findings

1. The alleged unlawful confiscation

Paragraph 5(e) of the complaint alleges that on April 6, Ross unlawfully confiscated a
Union flyer from Medley. Section 8(a)(1) prohibits an employer from interfering with an
employee’s right to receive union literature. Romar Refuse Removal, 314 NLRB 658, 665
(1994). In most cases where violations have occurred, the employer has taken away union
flyers from someone passing them out or taken away union materials from someone who has
received it. See, e.g., St. Francis Medical Center, 340 NLRB 1370, 1382 (2003); Fresh Farm,

29 At trial, Medley also asserted that the printer ticket clock was off on April 6. While Turner testified
that sometimes the printer ticket clock or date is off, there is no corroborative evidence that the clock was
off on April 6. Nor is there any evidence that Medley told Ross that the clock was off when he told her the
“story” about the extra 97 pounds of dust. I therefore do not credit Medley’s testimony on this point.

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305 NLRB 887, 888 (1991); Alson Knitting, Inc., 301 NLRB 758, 760 (1991). In this case, neither
occurred.

Medley was not passing out flyers to anyone when Ross found the flyer on the bottom of
a stack of papers on his clipboard. There is no evidence that he intended to distribute the flyer.
Nor is there any evidence that Medley had received the flyer from someone else.

In addition, there is no evidence that Ross sought to examine the clipboard because she
suspected that it contained union material. To the contrary, Medley testified that Ross asked to
see his papers in the course of determining why the extra 97 pounds of dust was added to batch
432 and in the course of doing so she discovered the flyer. In other words, the evidence shows
that there was a legitimate reason for examining the clipboard and for taking the papers that
were attached to it. Finally, the undisputed evidence shows that 20 minutes later, Ross
returned the flyer. Thus, the evidence fails to show that the Union flyer was taken in order to
interfere with Medley’s right to receive or pass out union literature or that the taking of the flyer
tended to interfere with that Section 7 right. Accordingly, I shall recommend the dismissal of the
allegations of paragraph 5(e) of the complaint.

2. The alleged unlawful discharge

Paragraph 10 of the complaint alleges that Steven Medley was unlawfully terminated
because of his union activity. Whether the discharge violated Section 8(a)(3) of the Act is
governed by the test articulated in Wright Line, supra. The elements commonly required in order
for the General Counsel to make an initial evidentiary showing have already been discussed.
Suffice it to say there is ample evidence that the Medley was a known union advocate whose
union activities the Respondent sought to discourage by closely supervising him and telling him
that he did not need to lead the employees in the organizing campaign. Thus, the evidence
shows that there was union activity, employer knowledge, and antiunion animus.

The General Counsel does not deny that a production problem occurred on April 6.
Instead, it asserts that the Respondent seized upon the incident to terminate Medley because
the union election was less than four weeks away. In support of its position, it argues that Ross
did not give Medley an opportunity to explain what happened. That argument fails based on the
above credibility resolution. It also fails because there is no evidence showing that Ross failed
to consult anyone else before disciplinary action was taken. The General Counsel nevertheless
asserts that the evidence supports a reasonable inference that there was no deliberation
because Norman Tarbell was unable to recall specifically when and where he spoke with Ross,
Allen, Williamson and Kramer. (Tr. 391 – 392.) While that evidence raises some questions
about Tarbell’s ability to recall, standing alone, it does not support a reasonable inference that
the decision was made summarily.

On the other hand, a careful review of the past disciplinary actions of Medley, Staples,
and Bundy does support such an inference. R. Exh. 6 shows that Medley was given a written
warning on December 1, 2003, for an incident that occurred on November 21, 2003. R. Exh. 9
shows that QCI Staples received a one-day suspension on December 1 for the same incident.
In other words, almost two weeks lapsed before discipline was issued. R. Exh. 13 shows that on
January 20, 2004, Medley received a one-day suspension for an incident which occurred on
January 13, 2004. R. Exh. 29 shows that on January 20, 2004, Bundy received a written
warning for an incident that occurred on January 15, 2004. R. Exh. 30 shows that on February
3, 2004, Bundy received a one-day suspension for an incident that occurred on January 22,
2004. Thus, the evidence viewed as a whole shows that in most instances the Respondent took
1 – 2 weeks to issue discipline, where in this case it took less than 24 hours. That evidence,
coupled with the fact that the union election was less than two weeks away, and also that

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Medley was recognized by the Respondent as the employee leading the union organizing drive,
supports a reasonable inference that the discharge was motivated by Medley’s union activity. I
therefore find that the General Counsel has satisfied its initial Wright Line evidentiary burden.

In order to prevail, the Respondent must establish not merely that it had a legitimate
reason for discharging Medley, but that it actually would have done so, even in the absence of
his union activity. The Respondent does not argue that Medley should have caught the mistake
when it happened. Rather, it asserts that Medley could have, and should have, caught the
mistake sooner than he did, if he had double checked batch 432 when he returned to check
batches 433 and 434. In this connection, a review of the printer control ticket for batch 432
shows that the entire amount of super sack dust for that batch dispensed at 1:30 a.m. and a
review of the blend sheets for batches 433 and 434 shows that Medley signed off on those
batches at 1:50 a.m. Thus, the documentary information available to Ross and the others
showed that Medley should have caught the mistake when he signed off on batches 433 and
434. (GC Exhs. 5B, 6A, 7A. ) In addition, the credited testimony of Ross shows that Medley first
told her that he did not check the ticket for batch 432, and subsequently told her that he could
not check the ticket because it was printing out when he returned to check batches 433 and
434. Thus, the credible evidence viewed as a whole shows that based on the information
available to the Respondent, it had a legitimate reason for disciplining Medley.

Even assuming for the sake of argument that the controller clock was off on April 6, and
the ticket was not available when Medley first returned to check batches 433 and 434, there is
no credible explanation for why Medley did not, or could not, check again for the printer ticket
after he concluded checking batches 433 and 434. Nor is there a credible explanation for why
he could not have waited for the ticket to print after signing off on batches 433 and 434. Rather,
the evidence shows that waiting for the ticket to print would not have impeded production
because batch 432 had to be mixed before batch 433 proceeded to the mixer. The failure to
catch the mistake at that point resulted in the bad batch proceeding down the line through the
production process resulting in the quarantine of all the batches.

The undisputed evidence shows that Medley had two recent prior disciplines for similar
oversights and that the Respondent followed its progressive disciplinary policy. In this
connection, there is no evidence that the Respondent proportions culpability in assessing
discipline. Rather, it assesses the next disciplinary step, which in this case was discharge. For
example, in December 2003, Medley, as second shift QCI, was given a written warning for
failing to catch the wrong edge code which was the first step in the disciplinary process.
However, Staples, the third shift QCI, received a one-day suspension for the same offense
because he was at second step of the disciplinary process. (See R. Exhs. 6 and 9.) In this case,
discharge was the next step of the disciplinary process for Medley.

Based on all the credible evidence viewed as a whole, I find that the Respondent would
have discharged Medley even in the absence of his union activity. Accordingly, I shall
recommend the dismissal of paragraph 10 of the complaint.

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Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

2. The International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Local 2123, AFL-CIO (Union) 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 by engaging in the following
conduct:

(a) soliciting grievances from employees in one-to-one meetings in order to
discourage their support for the Union;

(b) distributing a letter to all employees which threatened that their benefits would start
over from scratch if they selected a Union as their collective-bargaining representative;

(c) distributing a letter to all employees which solicited grievances from them in order to
discourage their support for the Union;

(d) promulgating an overly broad no-solicitation rule by telling Union advocate Steven
Medley that he was not allowed to talk to other employees unless it was work related; and

(e) discouraging Union advocate Steven Medley from participating in union activities.

4. The Respondent violated Section 8(a)(3) and (1) of the Act by subjecting Union
advocate Steven Medley to closer supervision.

5. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended30
ORDER

The Respondent, Motion Control Industries, Inc., Fredericksburg, Virginia, its officers,
agents, and representatives, shall

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

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1. Cease and desist from

(a) soliciting grievances from employees in one-to-one meetings in order to discourage
their support for the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Local 2123, AFL-CIO (Union);

(b) distributing a letter to all employees which threatened that their benefits
would start over from scratch if they selected a Union as their collective-bargaining
representative;

(c) distributing a letter to all employees which solicited grievances from employees in
order to discourage their support for the Union;

(d) promulgating an overly broad no-solicitation rule by telling Union advocate Steven
Medley that he was not allowed to talk to other employees unless it is work related;

(e) discouraging Union advocate Steven Medley from participating in union activities;

(f) subjecting Union advocate Steven Medley to closer supervision;

(g) In any other manner interfering with restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

Within 14 days from the date of this Order, rescind its verbal no solicitation policy
promulgated and implemented on or about March 15, 2004, restricting employees from talking
to each other unless the discussion is work related.

Within 14 days after service by the Region, post at its facility in Fredericksburg, Virginia,
copies of the attached notice marked “Appendix.”31 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
March 11, 2004.

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.

31 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”

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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. January 6, 2006

____________________
C. Richard Miserendino
Deputy Chief
Administrative Law Judge

JD–01–06
Fredericksburg, VA
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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT solicit grievances from employees in one-to-one meetings in order to discourage
their support for the International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, Local 2123, AFL-CIO (Union).

WE WILL NOT distribute a letter to our employees which threatens that their benefits
would start over from scratch if they select a Union as their collective-bargaining representative.

WE WILL NOT distribute a letter to all employees which solicit grievances from them in order to
discourage their support for the Union.

WE WILL NOT promulgate an overly broad no-solicitation rule by telling Union advocate Steven
Medley that he is not allowed to talk to other employees unless it is work related.

WE WILL NOT discourage Union advocate Steven Medley from participating in union activities.

WE WILL NOT subject Union advocate Steven Medley to closer supervision.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

JD–1–06
WE WILL rescind our verbal no solicitation policy promulgated and implemented on or about
March 15, 2004, restricting employees from talking to each other unless the discussion is work
related.

MOTION CONTROL INDUSTRIES, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.