NACCO Materials Handling Group

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1245 (N.L.R.B. 2000)

NACCO MATERIALS HANDLING GROUP 1245
NACCO Materials Handling Group, Inc. and Team-
sters Local 651, an affiliate of the International
Brotherhood of Teamsters, AFL–CIO. Case 9–
CA–35318–2
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On April 30, 1999, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by suspending and terminating
employees Pamela Poff and James Rowlett. We find
merit in the Respondent’s exceptions to these findings.
Specifically, we find that the General Counsel has failed
to carry his burden of demonstrating that the suspensions
and discharges were unlawfully motivated.
The facts are exhaustively set forth in the judge’s deci-
sion. In brief, the events in this case occurred in the con-
text of the eighth organizational campaign conducted at
the Respondent’s Berea, Kentucky facility. So far as the
record shows, no prior unfair labor practices have been
committed at this plant.
The Respondent has a pond on its property and, in
September, there are hundreds of ducks and geese at the
pond. Employee Rowlett testified that on September 19,
1997, a goose wandered into his work area and that he
“talked” to it. Rowlett picked up the goose by its feet
and told other employees that it “want[ed] to sign a union
card to join the union.” Employee Poff wrote “Vote
Yes” on a small card, attached it to a string about two
feet long, and placed the sign over the goose’s head
while Rowlett held it. Rowlett then proceeded to drive
the goose through the plant on a forklift truck. The re-
cord shows that a Canada goose weighs approximately
14 pounds and has a 5-foot wingspan.
At the conclusion of the goose escapade, the Respon-
dent sent Rowlett and Poff home early. The Respondent
conducted an investigation and collected statements from
witnesses. Rowlett and Poff were given the opportunity
to explain their conduct, but they declined to participate
in the investigation. After considering all the informa-
tion it compiled, the Respondent discharged Rowlett and
Poff on September 24, 1997. The basic reasons for the
discharge decision were that the employees’ behavior did
not meet adult expectations, posed a safety hazard to
them as well as to others, and disrupted production ac-
tivities of the plant.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In his decision, the judge appeared to recognize that
the goose incident was not protected by the Act because
he said that the employees’ conduct “should have a [dis-
ciplinary] consequence.”2 The judge concluded, how-
ever, that the discipline imposed was unlawfully moti-
vated, relying on what he termed “direct evidence of
animus” and an inference of animus that he drew “from
all the circumstances.” That is, the judge appears to have
found that antecedent lawful union activity, and not the
“goose” incident, was the reason for the discharge.
Contrary to the judge, we find that the record, when
fairly considered as a whole, does not contain substantial
evidence of antiunion animus. It is true, as the judge
pointed out, that the Respondent’s employee handbook
expressed the view that a union “could seriously impair
the relationship between the Company and the employees,
and could retard the growth of the Company and the pro-
gress of the employees.” The Board has held that state-
ments such as these, although alone not rising to the level
of unfair labor practices, may still be used to show ani-
mus.3 However, the judge failed to accord weight to the
significant countervailing evidence. No 8(a)(1) violations
were found by the judge. No antiunion comments were
made to the alleged discriminatees. No unfair labor prac-
tices were committed in the previous organizational cam-
paigns conducted at the Berea plant. The same employee
handbook that the judge relied on as evidence of animus
expressly “acknowledge[s] the right of our employees to
join a union if they wish.” In sum, the Respondent’s op-
2 At another point in his decision, however, the judge stated that “Poff
and Rowlett were terminated for union activity. Poff and Rowlett used a
goose to promote the union.” Along the same lines, the judge also
stated: “However inappropriate the use of the goose was, Rowlett was
engaging in union activity on September 19 when he drove the goose
around the plant on his fork lift truck with the goose wearing a vote yes
sign.” Of course, the judge’s findings are not necessarily inconsistent.
An activity can be “union” activity and yet, because of its nature, can be
outside the protection of the Act, e.g., throwing a rock at the employer’s
plant in support of a union’s dispute with the employer.
We cannot agree with the judge’s suggestion that the misconduct here
may have been protected union activity. Parading a live goose through a
manufacturing plant obviously does not fall within the activities pro-
tected by Sec. 7. Conduct of that kind has been considered to be unpro-
tected horseplay. See, e.g., Publishers Printing Co., 272 NLRB 1027,
1030–1032 (1984). Placing a “vote yes” sign on a wild animal does not
transform otherwise unprotected “gooseplay” into activity protected by
the National Labor Relations Act.
3 E.g., Gencorp, 294 NLRB 717 fn. 1, 731 (1989). Members Hurt-
gen and Brame find it unnecessary to rely on this precedent.
331 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1246
position to unionization is not, in the circumstances of
this case, sufficient to warrant the inference that it would
unlawfully terminate these employees because of their
union support or activities.4
According to the judge, even without direct evidence,
the entire record supported an inference of unlawful mo-
tivation because the Respondent proffered varied justifi-
cations for suspending and discharging Poff and Rowlett.
We do not agree with the judge’s suggestion that the Re-
spondent’s reasons for its action were in any way con-
flicting. The Respondent’s officials involved in the in-
vestigation and/or decisionmaking aspects of this inci-
dent consistently, albeit in different words, explained
their actions as concerns for maintaining safety, produc-
tion, and discipline in the Respondent’s plant. Having
reviewed the record, we can find no basis for finding that
these concerns were not the foundation for the Respon-
dent’s decision to suspend and discharge both Poff and
Rowlett.
Finally, we reject the judge’s finding that these dis-
charges constituted disparate treatment because the only
earlier incidents of employee misconduct that resulted in
discharge involved dishonesty, attendance problems, and
sexual activity on the job. It is true that the record con-
tains no evidence of previous incidents of “gooseplay”
resulting in termination. However, an “essential ingredi-
ent of a disparate treatment finding is that other employ-
ees in similar circumstances were treated more leniently
than the alleged discriminatee was treated.” Thorgren
Tool & Molding, 312 NLRB 628 fn. 4 (1993). We can
find in the record no incident of a similar nature that the
Respondent tolerated. Thus, we conclude that there is no
evidence of disparate treatment.5
In sum, we find that the General Counsel has failed to
establish by a preponderance of the evidence that the
Respondent was unlawfully motivated in suspending and
discharging Poff and Rowlett. Accordingly, we shall
dismiss the complaint.

ORDER
The complaint is dismissed.

Debra Jacobson, Esq., for the General Counsel.
William P. Barrett, Esq. (Maupin, Taylor, & Ellis, P.A.), of
Raleigh, North Carolina, for the Respondent.

tion 2(5) of the
Act.

4 In finding direct evidence of animus, the judge also relied on (1)
plant manager, James Grey’s, testimony that before the goose incident
he thought Rowlett “was just a regular employee doing his job and [I]
had no inkling that he was promoting any type of union”; and (2) Man-
ager Ken Holt’s statement to employee Jerry Owens that Holt thought
Owens was “a good moral Christian man and to see you come out
against the company really surprised me.” Again, these statements,
which are themselves not alleged as violative of the Act, do not warrant
a finding of animus against the Union and its adherents such as would
be necessary to support the inference of unlawful motivation.
5 The very nature of the misconduct is such that it is unlikely that it
ever happened before. But, that does not mean that the Respondent
cannot discipline employees for the conduct.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed in this case by Teamsters Local Union 651, an affiliate of
the International Brotherhood of Teamsters, AFL–CIO (the
Charging Party or the Union) on September 26, 1997,1 as
amended, on November 25, a complaint was issued on Novem-
ber 28 alleging that NACCO Materials Handling Group, Inc.
(1) violated Section 8(a)(1) of the National Labor Relations Act
(the Act), by engaging in surveillance of its employees’ activi-
ties on behalf of the Union and having the police called while
employees were distributing literature near Respondent’s prop-
erty on August 28, and (2) violated Section 8(a)(1) and (3) of
the Act by suspending on September 19, and then discharging
its employees Pamela Poff and James Rowlett on September
24. Respondent denies violating the Act.
A hearing was held on August 4, 1998, and on October 8 and
9, 1998. On the entire record in this proceeding, including my
observation of the demeanor of the witnesses and consideration
of the briefs filed by the General Counsel and by Respondent,2
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged in the
manufacture and sale of forklifts and materials handling
equipment at Berea, Kentucky. The complaint alleges, the
Respondent admits, and I find that during the past 12 months,
Respondent, in conducting the above-described operations, sold
and shipped from its Berea facility goods valued in excess of
$50,000 directly to points outside the Commonwealth of
Kentucky. I find that at all times material, Respondent has been
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Union has been a
labor organization within the meaning of Sec
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Plant Manager James Gray testified that the Berea plant has
about 600 employees, approximately 450 of whom are produc-
tion employees. Gray sponsored Respondent’s Exhibit 39
which lists the union campaigns that have occurred at the in-
volved Berea plant from April 1975 to October 1997. He testi-
fied that there have been a total of eight union elections at the
involved Berea facility. With respect to Respondent’s policy
on unions and union organizing, Gray testified as follows:
The company believes that a Union is not the best thing for
our company. They acknowledge the right of an employee to
1 Unless indicated otherwise, all dates are in 1997.
2 Counsel for the General Counsel has filed a motion to strike Re-
spondent’s “Reply to the General Counsel’s Post-Hearing Brief.” It is
pointed out that Respondent had not requested or received permission
to file an additional brief in this matter; and that the Board’s Rules and
Regulations, Sec. 102.42, provide for the filing of posthearing briefs to
the administrative law judge, and permit such filing within the period
set by the administrative law judge or such extensions of time as may
be granted by the chief administrative law judge. Respondent replied.
The Board’s Rules do no provide for reply briefs at this stage of the
proceeding and Respondent neither asked to be allowed to depart from
the customary practice nor has it shown any real need for such depar-
ture. Accordingly, the above-describe motion of counsel for the Gen-
eral Counsel is granted.
NACCO MATERIALS HANDLING GROUP 1247
belong to a Union but Nacco believes that our management
philosophy and our employee involvement philosophy and
participation of management style and the team environment
is the proper way to run a business that needs to be competi-
tive in this world and we don’t believe that a Union is condu-
cive to that environment.
As set forth in the employee handbook, Respondent’s Exhibit
40, and as here pertinent, Respondent’s policy with respect to
Unions is as follows:

We do not believe that union representation of our
employees is in the best interests of either the employees
or the Company.
We acknowledge the right of our employees to join a
union if they wish. When they do so, however, they as-
sign to the Union the right to represent them as sole agent
in respect to most matters relating to their conditions of
employment. For this reason, we believe that the mere ex-
istence of a third party between the Company and its em-
ployees diminishes the rights of the individual and deters
each employee from realizing his/her full potential. We
sincerely believe that any third party could seriously im-
pair the relationship between the Company and employ-
ees, and could retard the growth of the Company and the
progress of the employees.

Respondent hired Rowlett in April 1993. He worked on the
second shift, from 3:20 p.m. to 1:40 a.m., the whole time he
was with Respondent. Normally he worked Monday through
Thursday and if overtime was required, he worked Friday or
Saturday. In the beginning of 1997 he was transferred from
optional equipment to the wheelabrator where metal is prepared
for painting. He held that position at the time of his termina-
tion. Robert Jones was his supervisor on the second shift.
Rowlett testified that he has never received counseling from the
Respondent and he has never been called into the office for
disciplinary reasons; and that General Counsel’s Exhibits 3(a)
through (j) are his evaluations while at Respondent’s.3
On August 12 Rowlett first heard about the union organizing
campaign when Poff told him about it during a break. He
signed and dated (August 12, 1997) a union authorization card
she had given him and he gave it back to Poff. (GC Exh. 2.)
Owens testified that on the first of two occasions that he dis-
tributed union handbills at the involved plant, he left the plant
at the end of the first shift at 3:20 p.m. and walked to the end of
the driveway; that there were people there already who were
handbilling; that he and Respondent’s employee Danny Mize
started to hand out handbills to the first-shift workers who were
leaving; that Union Representatives Shively Pierce and Carl
Simpson were present; that Tom Stewart, who is Respondent’s
human resource manager, was standing within 10 to 15 feet of
the handbillers; and that he handbilled for approximately 30 to
45 minutes and Stewart was there during this entire period. On
cross-examination Owens testified that the road that the plant is
on is very congested at that time of day; that he handed out
pretty much every handbill that he had that day; that the em-
ployees kept stopping and taking the handbills; that Stewart
stood with his arms crossed and every now and then he would
wave at someone who was pulling out; that he saw Stewart

3 According to the evaluations, Rowlett received overally excellent
ratings on all but two of the evaluations and on those two he received
overall satisfactory ratings.
have a brief conversation with Simpson; and that he did not see
Stewart with a camera, recording device, notepad, or clipboard.
On redirect Owens testified that Stewart was in a position to see
the people in the cars who stopped to get a handbill.
Mize testified that he participated in the first handbilling of
union leaflets which occurred in August 1997; that he was the
one who contacted the Union in August 1997; that he was the
lead in-plant organizer; that he was working on the first shift on
the day of the first handbilling; that when he went to the end of
the plant’s driveway to handbill he saw Stewart standing there
in the area of an oak tree;4 that at one point an employee exiting
the plant stopped to talk to the handbillers, people behind him
started blowing car horns and Stewart stepped out to the drive-
way and started motioning for vehicles to go around the
stopped car; that there is a stop sign at the end of the em-
ployer’s driveway; and that he handbilled for about 30 to 40
minutes.
Simpson, who is assistant to the president of Local 651 and
its chief organizer, testified that the Union handbilled at Re-
spondent’s plant on three to five occasions in 1997; that the
handbilling occurred out by the highway; that during the first
handbilling session the police were summoned; that he arrived
at the plant for the first handbilling session about 2 p.m.; that
Stewart came out of the plant, came to the end of Respondent’s
driveway and told him that the handbillers were on Respon-
dent’s property; that at the time he was standing about 3 feet off
the berm of the road; that Stewart pointed to an imaginary line
indicating that it was Respondent’s property line; that Stewart
used a two-way radio to ask someone to telephone the police;
that a police officer arrived, left his car on the road, which did
not have heavy traffic at that point, and said, “[w]e got a call
that you’re on company property and that you’re also impeding
traffic”; that he told the officer that he could see that they were
not impeding traffic; that the officer spoke with Stewart and, as
the officer was leaving, he said that the only problem he saw
was that the truck parked across the street from the Respon-
dent’s plant would have to be moved; that he handbilled for
about 1 hour after that and Stewart stood under a tree a few feet
from the handbillers; that at some point Stewart said the hand-
billers were blocking traffic; that he told Stewart that traffic
was not being blocked and Stewart was trying to influence the
employees not to take a handbill; that Stewart stepped out from
under the shade tree and stood among the handbillers gesturing
and telling the people to keep moving, indicating that he needed
to get the plant emptied out; and that the handbillers did not
block traffic. On cross-examination Simpson testified that this
was the only time he saw Stewart or any other company official
at he end of the driveway; that when Stewart was referring to
the property line he did point to one stake; that he doubted
Stewart’s assertions because in the involved county handbilling
is allowed in the easement off the roadway up to 15 feet from
the center of the road; that the one stake Stewart pointed to was
several feet into the easement; that he did not see Stewart with
a clipboard or notepad or anything like that; that they had a
good response to the handbilling that day; that after the officer
left, Stewart told Simpson, “[N]ow you are impeding traffic
leaving the plant”; that before the officer arrived Stewart said
that the handbillers were impeding traffic on the two lane pub-
lic road; that the officer arrived on the scene while the second
4 According to the record, Mize testified that Stewart was 30 to 40
feet from the handbillers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1248
shift was arriving, which was prior to the first shift leaving; and
that he believed that about 100 to 150 cars left the parking lot
after the first shift. Subsequently, Simpson testified that he was
sure that there could have been cars backed up on the roadway
when the occupants of the second-shift cars were handbilled as
they came in; and that the one stake Stewart pointed to was
about 3 feet from the side of the road.
Poff testified that she arrived at the plant to handbill at 2:45
p.m.; that she parked her truck along the side of the road; that a
few minutes after she arrived she saw Stewart who talked to
Simpson and asked them to leave because they were on com-
pany property, and she was standing about 10 feet from the
edge of the road when this occurred; that Stewart said that he
would call the police if they did not leave; that Stewart radioed
the office and told them to call the police; that Stewart contin-
ued to watch the handbillers while standing about 10 or 12 feet
from them; that subsequently a police officer arrived and asked
those who were parked along the road to move their vehicles;5
that she handbilled until 3:15 p.m. when she had to go into the
plant for the second shift; and that while handbilling that day
she did not stand in front of any cars to make them stop and she
did not see any other employees engage in such conduct. On
cross-examination Poff testified that Stewart was in the road in
the shade; that she understood Stewart to mean that he wanted
them to leave altogether or he would call the police; and that
cars did not get backed up and she did not hear anyone honk
their horn while she was there. On redirect Poff testified that
she was not there when first-shift employees were leaving the
plant and being handbilled.
Stewart testified that on August 26 employees and union or-
ganizers were engaged in handbilling at the end of the Com-
pany’s driveway; that he went down to the end of the driveway
after receiving a telephone call about 2:45 p.m. regarding some
people at the end of the driveway; that he walked to the end of
the driveway and asked Simpson what was going on; that
Simpson said he had a right to be there handbilling; that he told
Simpson that he was on company property which is marked by
a post; that Respondent’s employees Donna Wilson, Ray Over-
bey, and Poff were there with Simpson, along with an associate
of Simpson, Pierce; that he told Simpson that the handbillers
were on company property which is designated by a stake and
he asked Simpson to leave company property; that he did not
have a conversation with Poff while she was handbilling; that
when Simpson and his associate wandered back on company
property as they were handbilling he asked them to step back
across the line and they did; that he stayed at the end of the
driveway because he did not believe that Simpson and his asso-
ciate would stay off company property; that the road in front of
the plant is a two lane road; that he stayed at the end of the
driveway until about 3:25 p.m.; that two or three times he
pointed out to Simpson or his associate that they had strayed
over the property line; that while he was at the end of the
driveway he did not have a conversation with any employee
other to acknowledge them; that he did not take notes of what
he saw, and he did not have a camera or recording device with
him; that only once did he signal employees to proceed and that
was when an employee stopped to talk with Simpson and the
employees who were backed up behind that individual started
blowing their car horns; that at the time there 20 cars behind the
individual and additional cars coming out of the parking lot

5 She moved her vehicle to the employee parking lot.
onto the driveway; that he radioed back to the office and asked
that the police be summoned because there were vehicles
parked in front of a traffic sign directly across the road from the
plant entrance and in his opinion the vehicles were obstructing
traffic and Respondent had employees coming into and leaving
work and a schoolbus travels down that road about 3:15 to 3:25
p.m.; that he did not tell Respondent’s employees that they
could not be on company property and he did not tell them to
leave; that he did not interfere in the handbilling in any way;
that when a police officer arrived he told Simpson that a truck
parked in front of a sign had to be moved; that on subsequent
occasions when employees and the Union handbilled he did not
go to the end of the driveway; and that Respondent has not
stopped employees from handing out or wearing union para-
phernalia in the plant. On cross-examination Stewart testified
that he went to the end of the driveway after the handbillers
started their activity and he left before the handbillers left; that
he stayed at the end of the driveway during the approximately
10 minutes it took for the first-shift employees to leave the
premises; that before this handbilling he had contacted Kokoku
Rubber and he was advised that it had contacted the police
regarding obstructing traffic and trespassing by the handbillers
when the teamsters handbilled at that facility, and that Simpson
and the Teamsters were instructed by the police to leave; that
he neither asked the employee whose truck was parked across
from the entrance to move the truck nor did he ask Simpson to
have the employee take this action; that he had no idea when
the accident had occurred which resulted in damage to the
fence by the end of the driveway but the damage was not pre-
sent when the involved handbilling occurred; and that he did
not go to the end of the driveway any other time when there
was handbilling. On redirect Stewart testified that with the
handbilling the traffic flow of the first shift exiting the plant
was slower than normal and it was more congested; and that
there was an instance when Simpson was talking to someone
leaving the premises and when the drivers behind that car
commenced to blow their horns he, Stewart, directed them
around the stopped car.
On August 27 the Union filed a petition for an election at the
involved facility, General Counsel’s Exhibit 5.
By letter dated August 28 to Respondent, General Counsel’s
Exhibit 7, the Union identified employees on the organizing
committee, including Poff. Respondent’s employee Jerry
Owens, who was one of the employees on the Union’s organiz-
ing committee in 1997 and who was included on the list of
employees in General Counsel’s Exhibit 7, testified on cross-
examination that, with the exception of Poff, everyone else on
the list was still working at NACCO.
General Counsel’s Exhibit 6 is a copy of a page from the
stipulation for an election at the involved plant which was
signed the second week of September 1997 and calls for an
election on October 9.
On Friday, September 19, Rowlett worked an overtime shift
from 1 to 9 p.m. Rowlett testified that there was very little to
do since the day shift, as usual, had done most of the work; that
three or four employees, including Poff, bring parts back to the
wheelabrator to be prepared for painting; that he ran out of
work this evening at about 5 or 5:30 p.m.; that his instructions
were to sweep the floor and clean up when he ran out of work;
that he cleaned up and took his break between 7 and 7:30 p.m.
that night; that a goose came into his work area during his
NACCO MATERIALS HANDLING GROUP 1249
break and he “talked” to it;6 that he touched the goose on the
back and then picked it up by its feet; that the goose flapped its
wings a time or two and then settled down; that he took the
goose on the forklift and went to the small parts paint booth and
told the employees there7 that the “duck had come in the back,
wanting to sign a union card to join the union”; that Bullens put
a union button on his, Rowlett’s, cap; that Poff, who was stand-
ing across the aisle, wrote “Vote Yes” on a 3- by 5-inch card
and attached it to a string which was about 2-feet long; that
Poff placed the sign over the goose’s head while it rested in his
lap; that he then went to Tommy Johnston’s work station where
backrests are made and told him that the duck wanted to sign a
union card; that Johnston laughed but another employee,
Johnny King, “tried to tell me it was animal abuse”; that he
went back to his work station and placed the goose on the floor;
that the goose walked outside the building and the sign fell on
the floor; that at most 10 minutes elapsed from the time he
picked the goose up to the time it walked back out the door;
then subsequently that evening Leadman James Chaney came
to his work station while Poff was there; that Chaney asked
where the badge was that she had pinned on the goose; that
Poff explained to Chaney that she did not put a badge on the
goose and they continued the conversation outside while out of
his presence; that at about 7:55 p.m. Jones came to his work
station and told him and Poff, who was there at the time, to go
home and come back in on Monday and see Stewart; and that
he was pretty sure that he still had the union button on his cap
when Jones came to his work station that night.8 On cross-
examination Rowlett testified that Chaney did tell him what
things to do at work; that his breaktime is not 6 p.m. but rather
he can take the break any time he wishes; that he believes that
he started with the goose shortly after 7 p.m.; that he started
with the goose at the time that the other employees in his area
were going to break; that he did not think that he picked the
goose up around 6 p.m. because it was not 2 hours from the
time it happened and when Jones sent him and Poff home; that
he looked at his watch when he was sent home and it was 7:55
p.m.; that the bird he picked up was a Canada goose like those
in the pictures received as Respondent’s Exhibit 1(a); that the
involved pond is accurately depicted in Respondent’s Exhibit
1(b); that he had never picked up a Canada goose before; that
other employees saw him with the goose but he did not stop
and talk with them; that while on the forklift he held the goose
with his left hand and he steered the forklift with his right hand;
that the steering wheel has a knob on it that you can drive only
with one hand; that he never uses two hands on the steering
wheel of the forklift; that Chaney came to his work station
about 10 minutes after the goose went outside; that Chaney
never saw the goose; that Chaney asked him where the badge
was that was pinned on the goose; that the goose was not inside
when Chaney came back to the area where he, Rowlett, was at
the time; that earlier when he was holding the goose it did not
struggle and try to get free; that he did not go near the welders
when he had the goose; that when he became an employee of
the company he received a company handbook, Respondent’s

6 Respondent has a pond on its property and in September there are
hundreds of ducks and geese at the pond.
7 Stacy Gillespie, Joe Causey, and Tommy Bullens.
8 Subsequently thereafter, Rowlett testified that the union button was
about 2 or 3 inches in diameter, that it had something about the Union
printed on it, and that he wore it on the front of his cap which was
facing Jones.
Exhibit 3;9 that he estimates that he had the goose in his posses-
sion for about 10 or 15 minutes and he released the goose about
7:10 or 7:15 p.m.; that Robert Jones came by about 10 to 15
minutes after Chaney spoke to him; and that Jones told him and
Poff to go home and come back in on Monday and see Stewart.
On redirect Rowlett testified that no supervisor ever told him
that he had to have two hands on the forklift steering wheel
when he operated it, he has seen other forklift operators drive
forklifts with one hand and he had never seen a supervisor tell
them to use both hands. And on recross Rowlett testified that
Bullens gave him the union button that night and he had never
worn a union button before that night; that about one half of the
employees wore union buttons; and that another employee
brought a dead ground hog into the plant after he killed it, and a
picture of the dead ground hog appeared in the company bulle-
tin.10
Poff, who worked for Respondent for 12 years (not including
layoffs), testified that she always worked the second shift;11
that when she worked an overtime 8-hour shift on Friday or
Saturday the employees combined their two 10-minute breaks
into a dinner break (there was no lunchbreak); that there was no
designated time when she took the 20-minute break; that while
she worked at Respondent she was involved in three union
campaigns;12 that she signed an authorization card for the
Teamsters, General Counsel’s Exhibit 8;13 that during the 1997
Teamsters campaign she signed up to be on the organizing
committee, she talked to people, had cards signed, wore a union
button, answered any question she could and when she could
not answer a question she would get the answer for the em-
ployee, and she handbilled three times;14 that Mize was the
most active union supporter on the first shift and he contacted
her when he wanted to find out what was going on on the sec-
ond shift; that there was no work, “nothing,” on Friday, Sep-
tember 19, her last day of work; that she is a material handler,
she drives a forklift truck and she gets parts for the welders;
that she took overhead guards and backrests to Rowlett to have
them wheelabrated; that on September 19, 1997, at about 7 p.m.
she first saw a goose where the parts are in the back; that the
goose followed Tim VanWinkle, and Richard Northern and
9 That portion of the handbook introduced herein contains the fol-
lowing:
Our philosophies are reflective of an “audit system” in which each in-
dividual makes a deep and respectful commitment to the entire group.
Our employees are expected to conduct themselves using food com-
mon sense and intelligent thinking.
10 GC Exh. 4 is Respondent’s Berea Newsletter for September 1997.
On p. 9 there is a picture of what appears to be a dead groundhog
stretched out on a hard surface, The caption to the picture reads as
follows:
And this critter also made a recent appearance. Where was he on
Ground Hog Day, February 2? (Larry Sims, Electric Tire Press first
shift, said he was taking him home to his mom for dinner.) [Emphasis
in original.]
11 She worked Monday through Thursday from 3:20 p.m. to 1:40
a.m. Also there were occasions when she worked overtime, viz, Friday
and Saturday from 1 to 9 p.m.
12 The first campaign she recalled was the Electrical Workers. Dur-
ing that campaign she went to meetings and had cards signed. The
second campaign she recalled was the UAW in 1995. During that cam-
paign she passed out union authorization cards and literature, got cards
signed, and wore UAW T-shirts and buttons. Poff testified that supervi-
sors saw her wearing the union T-shirts and buttons.
13 The card is dated August 12.
14 Poff testified that she handbilled two times before her discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
Rowlett were present; that she then went inside the building to
see if anyone needed anything because Rowlett said that he did
not have anything to work; that she next saw the goose when
Rowlett had it riding with him on the forklift inside the plant in
the welding department; that she got a blank card and a string,
wrote “yes” on the card, made a sign with the string and the
card and put the sign over the goose’s head while Rowlett was
holding it in his arms; that she did not touch the goose; that
subsequently King came up to her and told her that she was
cruel; that she told King that she was not cruel and that she did
not believe in being mean to animals; that she then asked
Johnny Gilbert and Bobby Witt if they had anything to go to
the wheelabrator for Rowlett to work and they had nothing; that
King came up to her again and told her that she ought to be
ashamed; that she told King that she was not ashamed and she
was a vegetarian; that she went to the breakroom and purchased
cake from a vending machine; that she took the cake to the
wheelabrator room and put it on the floor for the goose which
was loose on the floor at the time; that she left the wheelabrator
room but she returned a few minutes later; that she had been
driving around trying to find something for herself and Rowlett
to do; that when she returned to the wheelabrator room Chaney
came into the room; that when Chaney came into the room
Rowlett was there but the goose was not; that Chaney accused
her of putting a badge on the goose and she told him she did
not; that Chaney told her that she could be fired for putting a
union badge on the goose and she told him again that she did
not put a badge on the goose; that Chaney followed her as she
left the wheelabrator room and entered the main plant; that
Chaney showed her what he said was a Local 651 Teamsters
card, indicating that he had lost his job; that she told him that
he had been in management; that Chaney then asked her what
did she think the Union was going to do for her and she told
him change referring to a recent incident involving fumes, the
fact that in her opinion a temporary manager was inebriated at
work and an employee on the way to work was run off the road
by the same individual; that she asked Chaney if he put the
company before his family and he said that he did; that her
conversation with Chaney took place about 7:30 p.m.; that at
7:55 p.m. she and Rowlett were in the back where the parts are
and Supervisor Jones approached them and asked them to leave
and come back in Monday and discuss the goose with Stewart;
that she spoke with Simpson that evening or over the weekend
and he told her to refuse to answer any questions concerning
her union activities; that during the 12 years she worked at
NACCO prior to this incident she had never received any kind
of disciplinary action, she had never been called to the office to
be talked to about any kind of a problem and she had never
been chewed out on the floor by any supervisor; and that she
did not know if Rowlett was wearing any kind of union insignia
when Roberts told them to go home. On cross-examination
Poff testified that she had been active enough in all three union
campaigns that the Company was aware the she was a union
supporter; that she handed out literature in the plant during
previous union campaigns; that people in the welding depart-
ment on overtime Fridays combine the two breaks into supper;
that on overtime Friday, September 19, there were no parts set
out, no overhead guards welded, no backrests to go to the
wheelabrator; that she pulled a part for one welder and helped
put the part up because there was nothing to do; that she did not
know why they even worked that day because they had abso-
lutely nothing; that other employees on the first and second
shift who were active for the Union were still working at the
plant at the time of the hearing herein; that she first saw the
goose that evening around 7 p.m. outside the building where
parts are stored; that the next time she saw the goose was 10
minutes later when Rowlett came down the aisle with it; that
the little “vote yes” sign she made had a 8-to-10-inch long
string; that she placed the sign around the goose’s neck while
Rowlett was holding it; that King did not say that he thought
that the two of them should turn the goose loose; that Respon-
dent’s Exhibits 8(a), (b), and (c) are photographs of the inside
of the plant; that the second time King approached her it was
about 5 minutes after he approached her the first time and dur-
ing this conversation King did not say that she and Rowlett
should turn the goose loose; that when she gave the cake to the
goose it was loose on the floor of the wheelabrator room; that
when Chaney came into the wheelabrator room the only forklift
in the room was hers; that Chaney did not ask her and Rowlett
to turn the goose loose; that Chaney asked her if she knew that
she could be fired for putting a union badge on the goose; that
Chaney is a lead man in fabrication and he has the authority to
instruct employees in what to do; that when the supervisor is
not there the leadperson acts as a supervisor; that Chaney talked
to her that night between 7:30 and 8 p.m.; that Jones ap-
proached her and Rowlett in the back by the racks about 15
minutes after she spoke with Chaney; and that she received a
copy of the company handbook and she was familiar with the
adult expectation policy contained therein. On redirect Poff
testified that she did not have anything to do with Rowlett
bringing the goose on his forklift through the plant; and that she
never touched the goose.
Regarding September 19, King testified that he was a welder
in Respondent’s upright weld department;15 that on that Friday
he worked the second-shift overtime and his area took breaks at
3:30 and 6 p.m.;16 that he had just came back from the 6 p.m.
break and it was between 6:15 and 6:25 p.m. when another
employee, Bobby Witt, asked him to come over and look at this
goose that Rowlett had; that when he got to Rowlett’s forklift
he said, “[W]hat were you all doing catching this thing”; that
Poff walked up with a sign on a string and placed it around the
goose’s neck; that he then said to Poff, “Pam that’s . . . cruelty
to animals, I wouldn’t do that”; that he then pet the goose;17
that he then went back to his work station and told another
employee, Chuck Hensley, “[L]ook what they’re doing up there
to that . . . goose . . . . I can’t believe they’re doing that”; that
Hensley said, “[W]ell, Johnny . . . you ought to tell somebody”;
that Rowlett proceeded to drive around with the goose; that
about 1 minute after speaking with Hensley, he, King, went to
get a drink of water and Chaney, who was the leadman over the
paint booth and, therefore, Rowlett’s supervisor in the absence
of the regular supervisor, asked him what was going on; that he
explained the situation to Chaney who said that he would talk
to Rowlett and tell him to turn it loose;18 that as he was going
back to his work station Poff approached him and said that she
was not cruel to animals and she was a vegetarian; that about

15 At the time of the hearing, he was a temporary supervisor.
16 King testified that he came back from the 6 p.m. break at 6:15
p.m.
17 The transcript at this point indicates that he testified “to pick up
the goose” but as indicated on cross-examination he pet the goose and
did not pick it up.
18 Subsequently King testified that Chaney said that he was going to
tell them to turn the goose loose.
NACCO MATERIALS HANDLING GROUP 1251
45 minutes to an hour later his supervisor, Jones, came to his
work station and asked him what happened; that he explained
what happened to Jones; that he did not remember or recall
seeing a union button on Rowlett’s hat that evening; that he
never told Poff that she should be ashamed; that Jones asked
him if Poff and Rowlett had a goose in the building and he told
Jones that they did over at Witt’s work station and Rowlett was
driving it up and down a couple of times; that Jones came up to
him about 7:10 or 7:15 p.m. or about 45 minutes to an hour
after he first saw the goose; that at that time he only had one
conversation with Poff; that he received a telephone call from
Stewart that night at home and Stewart asked him to write out a
statement while it was fresh in his mind and bring it to Stew-
art’s office on Monday; and that he brought the statement to
Stewart’s office on Monday morning. The statement, Respon-
dent’s Exhibit 14, reads as follows:

On Friday Sept. 19, 1997, during normal working
hours. Between the hours of 6:15–7:15 p.m. Bobby Witt
said for me to come and see the horn [goose] that was on
James Rowlette[’s] forklift. Then as I proceeded toward
his forklift I noticed that he was holding a goose in his lap.
Then as I turned abound and looked to see what Pam Poff
was doing I noticed a sign that she was making to go
around the goose’s neck. I then petted the goose. I then
said to Pam that I thought it was being cruel to animals.
Pam’s reply was that she would not be cruel to animals she
is a vegetarian. I then walked over to where Chuck
Hensley was working and told Chuck what James and Pam
were doing. Chuck said to me he thought that I should tell
Robert Jones what was going on. So I then saw James
Chaney who has got a radio so he could contact Robert for
me and explain to Robert the situation. So then Robert
came to my work station about 20 min. later and asked me
if I had seen what Pam and James had done and I replied
that yes I had seen them make the sign for the goose. I
also told Robert that James had paraded around Fab shop
showing the goose to different people.

[signed by Johnny King]
9–19–97

King further testified that he did not overhear Chaney’s conversa-
tion with Poff and Rowlett; and that he did not telephone the hu-
mane society about this incident. On cross-examination King testi-
fied that when he indicated in his statement that it occurred be-
tween 6:15 and 7:15 p.m. he was referring to the whole incident
from start to finish that evening; that he never saw the goose loose
in the plant before he saw Rowlett holding it; that he did not see
Rowlett pick up the goose; that he petted the goose on its wing
while Rowlett was holding it; that the goose was not struggling and
it appeared calm; that he was open about his opposition to the Un-
ion; that he realized that the sign “vote yes” that Poff placed around
the goose’s neck was prounion; that he then told Poff that she was
being cruel to animals; that he told Hensley that Rowlett held the
goose while Poff placed a “vote yes” sign around the goose’s neck;
that Hensley did not say that he should tell Jones but rather Hensley
said that he ought to tell somebody because they should not be
doing that, they should be working; that Hensley’s concern was
that Rowlett and Poff were using the goose to push the Union and
making a joke out of it; that he heard that Rowlett said that the
goose wanted to sign a union card and Poff said that the goose was
their mascot; that the wheelabrator operator can only operate the
wheelabrator when there is something to be wheelabrated; that
since his statement was written soon after the incident it is more
accurate than his memory with respect to Hensley saying that he
should tell Jones what is going on; that he did not read his state-
ment in preparation for his testimony herein and the last time he
saw it was the day he turned it in at Stewart’s office; that Rowlett
was not physically involved in making the sign for the goose; and
that he did not tell Jones that he saw both Poff and Rowlett make
the sign for the goose. On redirect King testified that the wheela-
brator normally is pretty busy throughout the shift; that on Septem-
ber 19, 1997, there was a full crew welding and the wheelabrator is
used for overhead guards, backrests, cowls, and fender welds, there
were between seven and nine welders and the welding was still
going on until 8:45 p.m.; that Rowlett feeds the small parts paint
booth and that system was working that night; and that he and the
other welders had work to do that entire day and “they wouldn’t
bring us in on overtime if there wasn’t plenty of work to do.”
With respect to what occurred on September 19, 1997, Hen-
sley testified that the breaktimes were 3:30 and 6 p.m.; that he
saw a goose in the plant about 6:20 p.m. after they had come
back from their break; that he saw Rowlett going up and down
the aisle on a forklift with a goose; that he could not recall
whether Rowlett was wearing any union insignia anywhere;
that he could not recall seeing a union button on Rowlett’s cap;
and that on September 19 Jones came by after the incident and
asked him what he had seen. On cross-examination Hensley
testified that he did not see Poff with the goose; that he noticed
that the sign around the goose’s neck indicated “vote yes”; that
before this incident he had never seen anybody bring a goose in
the plant and ride it around on the forklift truck; and that he did
not suggest to anyone that they go and tell someone in man-
agement about the incident.
Chaney testified that on September 19 he was the second-
shift leadperson over the table wheelabrator, small parts paint
system, frame paint system and counterweight paint system;19
that at the time his supervisor was Joey Centers who worked on
the first shift and part of the second shift; that Rowlett was one
of the employees that he was a leadperson for; that on a Friday
overtime day the second-shift break occurs at 6:30 p.m.; that
when he was coming back from break about 7 or 7:30 p.m.
King who is a welder in an area that he did not supervise ap-
proached him and told him that Poff and Rowlett, “was bring-
ing a goose through there and it had a string and a badge . . . on
it . . . [and the badge] . . . was a ‘Vote yes’ union badge”; that
King said that it needed to be stopped; that he tried unsuccess-
fully to get Jones on the radio and then went looking for him;
that when he could not find Jones he went to the wheelabrator
room where he found Poff and Rowlett and a Canadian goose
sitting on the floor; that no one was holding the goose at that
time; that he did not see a string on the goose at this time; that
he asked Poff and Rowlett if they had a string and badge on the
goose and Poff said, “[Y]es”; that Poff then said what is this
cruelty to animals, you eat them don’t you: that he said, “[N]o,
we just don’t need this trouble with people trying to work”; that
Rowlett never said a word; that as he walked out of the wheela-
brator room Poff came up to him on her forklift truck and told
him that he was “a damn liar just like Jimmy Gray”; that he

19 In January 1998 he became the second-shift supervisor of these
systems. The leadperson’s job description was received as R. Exh. 16.
Chaney testified that if there was a problem in one of the departments
when he was a leadperson he would get one of the supervisors on the
second shift, namely, Robert Jones or Lonnie Case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
asked her what she meant by that and Poff said that he lied in
that while he said that at his prior job he was in the Union he
was a manager; that in his prior job he was in the Teamsters
Local 651 bargaining unit and then he became a manager but he
never previously discussed this with Poff; that Poff also talked
about the National Guard and people stealing stuff but he did
not have a clue what she was talking about; that Respondent’s
Exhibit 9 is a picture of him standing in “the location in the
plant where this conversation with Ms. Poff took place”;20 that
he did not tell Poff that “don’t you know that you can get fired
for putting a union badge on a duck”; that during this incident
he did not pull a Teamsters union card out of his pocket and he
did not ask Poff what she thought about the Union; that Poff
told him that he should be ashamed of the way Respondent
treats the National Guard employees when the Guard was try-
ing to help the people like his sister during the flooding in
northern Kentucky; that when Poff asked if he put the Com-
pany or the job before his family he answered, “[N]o”; that he
again tried to page Jones and when he could not reach him he
went looking for Jones; that when he found Jones in the office
of Mark Pool, a manager in fabrication, he told Jones “that Pam
and J.R. had a goose in there and Johnny came to me, and I
couldn’t get ahold of you, so I went out there myself and told
them to turn it loose” and what Pam said to him when she
pulled up to him as he walked out of the wheelabrator room;
that he did not see a union button on Rowlett’s hat in the whee-
labrator room that evening; that later when he was working up
the overtime Jones told him that he should put Rowlett down
until 8 p.m. when he, Jones, sent him home; that at about 10
p.m. that night Stewart telephoned him at home and told him to
write a statement about what he remembered happening; that he
was not present when Jones told Poff and Rowlett to go home
on September 19; and that he did not recall what the workload
was like on September 19. On cross-examination Chaney testi-
fied that he was opposed to the Union coming in at NACCO
and he felt strongly about that; that Poff, who was not in the
group that he was the leadperson for, was very vocal about her
support for the Union; that on the night of September 19 he did
not have to speak to anyone about not getting their work done
and the people in his area of responsibility all got their work
done that night; that Rowlett could have been wearing a union
button the night of September 19 but he did not see it; that as
lead man he took his break at the same time as the people that
he had working under him; that King approached him after he,
Chaney, came back from his break about 7 or 7:30 p.m. that
evening; that after King told him about the goose being in the
plant he did see Rowlett going down the aisle with the goose
under his arm on the forklift truck; that when he saw Rowlett
holding the goose on the moving forklift, the goose was sitting
calmly in Rowlett’s arm, it was not “flopping around”; that he
had a full view of the goose in the wheelabrator room and he
could see very well that there was nothing around its neck; that

20 The specific testimony is as follows: [BY MR. BARRETT]:
Q. Mr. Chaney, I’m handing you what’s in evidence as Re-
spondent’s Exhibit 9, if you’ll take a moment and look at that.
(Witness handed document)
A. (Witness complies.)
Q. Is that–do you recognize anyone in that photograph?
A. That’s me standing there.
Q. Okay. And, is that the location in the plant where this con-
versation with Ms. Poff took place?
A. Yes.
after telling Poff and Rowlett to turn the goose loose he asked
them “did you have a string or . . . a badge on it”; and that at no
time did he see Poff holding the goose or doing anything to
restrain it and that is what he told the Company. On redirect
Chaney testified that he did not tell Poff that he lost a prior job
because of the Union; that he asked Poff and Rowlett about the
string and badge because he “didn’t know for sure if they were
going to turn it loose or not.” Subsequently Chaney testified
that he was, in effect, directing Poff and Rowlett to have the
goose which was loose on the floor of the wheelabrator room
leave the plant building but notwithstanding his above-
described doubts, he did not remain there to make sure that the
goose did leave the plant building.
With respect to the involved September 19 incident, Jones,
who is a production supervisor on second shift, testified that
Rowlett worked for another supervisor, Centers, who was the
supervisor for the first and second shift, but Chaney took care
of the duties during the second shift; that in Center’s absence,
Chaney had supervisory authority; that Chaney approached him
in Pool’s office and told him what had occurred regarding
King, the goose, Poff and Rowlett;21 that he asked King what
happened and King told him;22 that he also spoke to Hensley
and Johnston both of whom told him that they saw Rowlett
riding with the goose on his forklift; that he telephoned his boss
Pool at his house and Pool’s wife told him that Pool was visit-
ing his mother in a nursing home; that he telephoned Pool at the
nursing home and he explained to him what happened; that
Pool “instructed . . . [him] just to go ahead and send him home,
and tell him to come back to personnel on Monday and let them
deal with it”; that he went to the wheelabrator room at 7:50
p.m. and Rowlett and Poff were there; that he did not see a
goose in the room; that he told them to go home and report
back to Personnel on Monday, and he would pay them for 7
hours; that he did not ask Poff or Rowlett any questions at this
time; that Rowlett told him that he “was just trying to have
some fun” and he told Rowlett that he would need to bring that
up with personnel; that Stewart telephoned him at home at
about 9:30 p.m. and asked him what happened and to write
what happened down while it was fresh in his mind; that he
drafted a statement that night; that he did not see any union
insignia on Rowlett’s cap but Rowlett always wore a cap; and
that at this point in time he did not know that Rowlett was en-
gaged in union activities. On cross-examination Jones testified
that in testifying on direct and initially on cross he was not
intentionally leaving anything out when he testified as to what
Chaney and King told him about what occurred; that his written
statement of September 19 indicates that Chaney told him that
Poff and Rowlett had tied a string around the goose’s neck and
hung a union badge on the string23; and that he could not re-
member whether King told him about the “Vote yes” sign
around the goose’s neck.
Pool testified that he has worked as a manager in fabrication
for over 10 years; that on September 19 while he was visiting
21 Jones testified that Chaney told him that Poff and Rowlett
“brought a goose in the plant back there, and Johnny King tried to get
them to turn it loose, and they wouldn’t turn it loose.” When he testi-
fied on direct, Jones did not testify that Chaney told him that the goose
had a “Vote yes” sign around its neck.
22 On direct Jones did not testify that King told him anything about
the “Vote yes” sign around the goose’s neck.
23 Up to this point on cross Jones had not testified that he had been
told that the goose had a “Vote yes” sign around its neck.
NACCO MATERIALS HANDLING GROUP 1253
his mother in a nursing home he received a telephone call from
Jones at about 7:30 or 8 p.m.; and that Jones advised him
that there was an incident in the plant where an operator was
driving a lift truck, they were driving around the plant more or
less parading this duck through the plant
. . . .
[a]nd . . . when a lead person had approached the individuals
involved and asked them to stop, the impression I was left
with was that the lead person was verbally abused, and they
ignored the request to stop parading this animal around the
plant; that it was interfering with other individuals who were
trying to work; that they were coming to the lead person and
the supervisor complaining about it.
And he asked me what should he do, what action
should be taken. Considering the fact that it sounded like
an unsafe condition, where if you’re familiar with out
plant, anybody on lift truck has to be paying attention all
the time, we were–this situation was interfering with other
individuals who were trying to work, and there seemed to
be an apparent lack of response to a request by a lead per-
son to stop, and given the time of the day, I told Robert it
seemed best just to remove them from the plant, send them
home, and have them come in and see Tom Stewart on
Monday.

Pool further testified that Jones identified the individuals involved
as Poff and Rowlett; that Jones said that the goose had a sign; that
Jones did not say what the sign said, “it was irrelevant to the situa-
tion. It was more about stopping the unsafe condition, than worry-
ing about what was on the sign”; and that he then telephoned Stew-
art and left a message on his answer machine. On cross-
examination Pool testified that while Jones, on September 19 told
him that there was a sign on the goose, Jones did not tell him what
was written on the sign and he did not tell him that it was a proun-
ion sign; that Poff was a very outspoken union supporter; and that
Poff was an acknowledged supporter of the Union and the letter
from the Union listed her as a supporter. On redirect Pool testified
that there are 12 to 15 employees who were outspoken for the Un-
ion in 1997 and all but Poff are still employed by Respondent.
Gerald McKeon, who handles all of the security equipment
for Respondent, sponsored Respondent’s Exhibits 4 and 9
which are two pictures taken by a camera mounted in the ceil-
ing inside the plant, which camera is aimed at the door by the
steel yard. The door leads to the outdoors. The camera is fo-
cused on that portion of the inside of the plant just inside of the
involved doorway, the doorway and that portion of the outside
which is framed by the large doorway. McKeon testified that
he is responsible for setting the time and the date which is su-
perimposed on the top of the photographs; and that the date and
the military time on the two photographs is accurate. On voir
dire McKeon testified that the security camera is a constant
video that records all of the activity at that location; that the
involved small television camera is on a multiplexer along with
15 other cameras and the involved camera takes a picture every
5 seconds; and that every frame has a date and time superim-
posed on it and that he checks the setting of the date and time
of the camera on a daily basis. Subsequently, McKeon testified
that at 7:03 and 7:08 p.m. on September 19 the sun had not
gone down; that the involved door faces north; and that “the
way the plant is situated, the sun is actually, as it sits, is actu-
ally slightly to the north . . . of the plant.” Stewart sponsored
Respondent’s Exhibit 22 which is a plat showing the involved
property with improvements, namely, the plant and addition as
drawn by Stewart at the hearing herein. As shown on the plat,
the door from the wheelabrator area to the outdoors faces in a
direction between north and northwest. In testifying about that
door as depicted in Respondent’s Exhibit 9, Stewart testified
that “the sunlight is coming through very brightly.” (Tr. 587.)
On cross-examination Stewart testified that the involved secu-
rity camera capture a snapshot every 6 seconds; and that he
reviewed all of the snapshots taken by the particular security
camera that depicts the scene on Respondent’s Exhibits 4 and 9
during the time period that the goose incident was supposed to
have occurred, “[s]ometime prior to the alleged beginning and
the alleged ending of it.” (Tr. 655.) When asked if any of the
other photos showed anything that he took to be a goose Stew-
art testified, “I would recall a photo of the goose toward the
right light there and I believe it was after the photo in which
you have there that you were showing me. [R. Exh. 4.]” Such a
photo was not introduced herein. Subsequently, Stewart testi-
fied that he could not explain why in Respondent’s Exhibit 4
the figure which purportedly is Rowlett is further away from
the door to the outside then he would need to be if he were
taking or letting the goose go out the door. In response to a
subsequent question of Respondent’s attorney, namely, who did
the Company look to explain the situation, Stewart replied
Rowlett and Poff.
With respect to the incident of September 19, Stewart testi-
fied that there was a message from Pool on his answering ma-
chine at home when he returned after 9 p.m indicating that
Rowlett and Poff had been sent home for having a Canadian
goose in the plant and parading it around; that he telephoned
Jones at home and Jones told him what happened; that he told
Jones to draft a written statement regarding what happened
while it was still fresh on his mind and he asked Jones to give
him the statement on Monday when he came into work at 3:20
p.m.; that he telephoned King at home and asked him to docu-
ment what he observed and what was said; that he was sure that
King told him about the sign on the goose; that he telephoned
Chaney at home around 10:30 p.m. and spoke to him as he was
getting home from his shift, which ends at 9 p.m.; that Chaney
told him that Poff and Rowlett had a Canadian goose in the
plant, were parading it up and down the aisle way, and they had
been sent home by Jones around 8 p.m.; that Chaney told him
that Poff became angry and she “let him have it, as far as just
flying off” (Tr. 592); that he asked Chaney to put into writing
what he knew of the incident and give it to him on Monday;
that it is possible that during this telephone conversation
Chaney mentioned a sign around the goose’s neck and if he did,
he would have mentioned that it had a union-related message
on it; that Friday night, September 19, he telephoned Plant
Manager Jim Gray, and made him aware of the situation, relat-
ing to him what he knew; and that during this telephone call he
told Gray that there were two employees in the plant with a
goose transporting it around and he was sure that he told Gray
that there was a sign placed around the goose’s neck, this went
on for upwards of an hour, a supervisor sent them home at
around 8 p.m. and they were told to report to the office on
Monday.
Gray testified that between 8 and 9 p.m. on Friday, Septem-
ber 19, Stewart telephoned him at his home and told him that
Rowlett and Poff were involved with bringing a goose into the
plant and Jones sent them home and advised them to come back
Monday and talk with Stewart in human resources. On cross-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
examination Gray testified that Stewart woke him up when he
telephoned Friday night and he did not remember Stewart tell-
ing him during this telephone conversation that the two em-
ployees had hung a sign around the goose’s neck.
Owens testified that he worked on the second shift for 1-1/2
years when he was first hired 5 years ago; that there are times
when he has no work to do and during these times he sweeps,
and talks with other employees or supervisors, sometimes about
topics which are not work related; that employees use forklift
trucks for nonwork-related purposes (i.e., to get to the break-
room), and even though they have been told by supervisors that
they should not do this they are not disciplined when they do it;
and that often he has seen forklift truckdrivers operating the
forklift with one hand. On cross-examination Owens testified
that on the average shift he has no work to do probably 5 to 15
minutes and it has been up to an hour; that the supervisor would
normally try to find something for him to do if it was going to
be longer than 10 minutes or so; and that he has seen forklift
drivers operate forklifts with two hands. Subsequently, Owens
testified that there is more downtime (periods when an em-
ployee does not work) on the second-shift overtime than there
is on the first shift.
Dan Pooler, of the United States Fish and Wildlife Service,
testified that Canadian geese are protected by the Migratory
Bird Treaty Act, along with other state statutes; that the capture
of a Canadian at the time involved in the manner set forth in a
hypothetical given by counsel for Respondent24 would have
been a “take” in violation of the involved Federal statute; and
that he was not involved in the case prior to being contacted to
testify here. On cross-examination Pooler testified that he was
not aware of the involved incident when it occurred or he
would have investigated it; and that if after the involved inci-
dent someone took the goose home to rehabilitate it, that would
also have been a violation of the statute subject to the same
penalties. On redirect Pooler testified that there are rehabilita-
tion permits and if the person who took the goose home to re-
habilitate it did not have a permit, it would have been an illegal
take. Subsequently, Pooler testified that the goose coming into
the plant on its own was not part of the hypothetical he was
given; and that the involved situation would fall under the “cap-
ture” or “collect” portion of the definition of “take,” 50 CFR
10.12. Stewart testified that Respondent did not try to have
Poff and Rowlett charged or contact the U.S. Fish and Wildlife
and ask them to investigate the matter.
Ronald Prichard, of the Kentucky Department of Fish and
Wildlife Resources, testified that Canadian geese can weigh up
to 14 pounds and have a wing span of about 60 inches; that they
can be aggressive or docile; that they will try to get away if
they are caught and restrained; and that it has been his experi-
ence that you cannot just walk up to a Canadian goose and pick
it up. On cross-examination Prichard testified that no one con-
tacted him or anyone in his department, to his knowledge, in
September 1997 with respect to some employees who had an
encounter with a goose at the involved plant; that he has fed
geese out of his hand but they have not allowed him to capture
them;25 and that it would not be lawful for an individual who
was not a licensed or certified rehabilitator to take a goose to

24 The hypothetical described the incident which occurred here, ex-
cept that according to the hypothetical the picking up of the goose was
“either inside or outside of the plant building.”
25 This would be done when geese have fishing line attached to them
or for purposes of banding.
their home to rehabilitate it. On redirect Prichard testified that
if a goose took flight in the plant it could be injured; that if the
goose had escaped with the string around its neck it could have
died; and that, to his knowledge, there are no statutes that regu-
late when you can and cannot kill a groundhog.
Linda Sesta, who is director of the Madison County Humane
Society, testified that she received an anonymous telephone
message on Friday evening, September 19, indicating that an
incident involving a Canadian goose had happened at Respon-
dent’s plant and the caller suggested that she look into it.
On Saturday morning, September 20, Sesta telephoned Re-
spondent and got a recording.
Gray testified that when he went to the plant on Monday
Stewart told him that that evening he was going to interview the
people who witnessed the episode, along with Poff and Row-
lett26; and that on Monday, September 22, no one from outside
the Company contacted him.
On Monday morning, September 22, Sesta telephoned Re-
spondent. According to her testimony, later that morning Plant
Manager Jim Gray returned her telephone call. Sesta testified
that Gray told her that
there had been an incident at the plant involving a Canadian
goose. Some employees had captured a Canadian goose and
brought it into the plant, and were—they were parading it
around on a piece of machinery constraining it so that it
couldn’t get away, and something involving a union insignia,
or something like that, but that quite a few of the employees
were very upset.
Sesta also testified that she told Gray that she had received a
telephone call alerting her to the situation and she was concerned
with what happened to the goose; that Gray said that the goose was
released, it was not showing any signs of distress, and Respondent
took great pains to maintain a habitat for quite a large flock of Ca-
nadian geese; that she told Gray that she would be glad to come
down and take a look at the goose if he thought that there was go-
ing to be any problem with the animal’s health; and that Gray indi-
cated that he felt that the animal was all right. On cross-
examination Sesta testified that in speaking with Gray she got the
impression that the union insignia was perhaps draped on the goose
somehow; that Gray’s statements suggested to her that he knew
which bird was involved; that Gray’s statements to her made it
clear that the particular goose had been observed and was showing
no sign of distress; that she has quite a few groundhogs on her farm
and when they are surprised by a person they usually run the other
way; and that groundhogs are leery of people.
As noted above, King turned in his statement regarding the
September 19 incident to Stewart’s office on Monday morning,
September 22.
Regarding September 22, Hensley testified that when he
came to work on that Monday Stewart called him in and talked
to him about what he, Hensley, saw; and that Stewart made
notes and he, Hensley read the notes before he signed them.
The notes, Respondent’s Exhibit 15, read as follows:
9–22–97–Spoke to Chuck Hensley. R. Jones present.
Re: Incident 9–19 (Friday) involving Pam Poff, James (JR)
Rowlette and goose.
26 Gray testified that he usually comes into the plant about 5 a.m. and
leaves the plant about 5 p.m. and Stewart usually comes into the plant
about 7 a.m. and stays beyond 5 p.m.
NACCO MATERIALS HANDLING GROUP 1255
He came back from 6:00 pm break and had begun
working and Johnny King hollered at him and asked
whether he (Chuck) had seen that. Chuck responds “Seen
what?” He looked and saw James (JR) Rowlette coming
up the aisle with the goose under his left arm with a sign–
(index card?) hung on neck, as he was driving the lift truck
with one hand (heading west). “J.R.” went to the area
where thai backrests are built turned around and came
back down the aisle. Not sure whether “JR” stopped or
not prior to coming back down the aisle.
J.R. didn’t say anything to Chuck. Chuck saw what
Johnny was talking about and after seeing JR & goose go
down the aisle he went back to work.
J.R. (Rowlette) was not transporting anything on his
forks.
9–22–97 [signed by Chuck Hensley]

Chaney gave his statement about the September 19 goose inci-
dent, Respondent’s Exhibit 17, to Stewart on Monday, Septem-
ber 22, 1997. It reads as follows:

On 9/19/97 at approximately 7:30 P.M. Johnny King
approached me and told me that Pam Poff and James
Rowlett had been driving up and down the isles [sic] with
one of the Canadian Geese on their fork trucks and that it
had a string around its neck with a vote yes union badge
attached to the string. Johnny seemed to be upset so I
went to the wheelabrator where James works, as I was
walking to the area where James works I saw him with the
goose on his fork truck. When I got to the wheelabrator
the goose was on the floor between Pam and James fork
trucks but the string and badge were not on the goose. I
told them to turn it loose, Pam said what is this cruelty to
animals you eat them don’t you. I said no we just don’t
need this kind of trouble when people are trying to work. I
asked them if they had put a union badge on the goose and
Pam said yes, James never did speak during this conversa-
tion. As I walked away Pam drove up beside me and . . .
said you are a damn liar just like Jimmy Gray. I asked her
what she meant by that and she said I lied about being in
the union at the factory I worked at before I came here and
that I was in management, and that made me a liar just like
management here. This upset me so I walked away. I lo-
cated Robert Jones and told him what had happened. She
also spoke about the National Guard and that she had
wrote a letter how they treated the people here that were in
the service. She said they fired two people for stealing,
and a few people carried stuff out every day.

[signed by James Chaney]
9/19/97

The statement was typed except for the last two sentences which
were handwritten. Chaney testified that he added the last two sen-
tences on Monday, September 22, because he was asked if any-
thing was said and so he added this even though he did not under-
stand it; that he did not play any role in the investigation of the
incident; and that he was not involved in the decision to terminate
Poff or Rowlett and he was not asked to give his opinion on the
matter.
Jones gave his written statement, Respondent’s Exhibit 18,
to Stewart on Monday September 22. It reads as follows:
9–19–97
AT 7:30 PM THIS EVENING JAMES CHANEY CAME
TO ME AND TOLD ME THAT HE HAD GONE OUT TO
THE SMALL WHEELABRATOR AND ASKED PAM
POFF AND JAMES ROWLETT TO RELEASE ONE OF
THE DUCKS THAT THEY HAD CAPTURED AND TIED
A STRING AROUND ITS NECK, AND HUNG A UNION
BADGE ON THE STRING, AND PARADED THE DUCK
IN THE PLANT SHOWING IT TO SOME OF THE
EMPLOYEES. THESE ACTIONS UPSET SEVERAL OF
THE EMPLOYEES, AND JOHN KING TOLD PAM THAT
THIS WAS CRUELTY TO ANIMALS. JOHN THEN
LEFT AND CAME TO FIND ME WHEN HE RAN INTO
JAMES CHANEY AND TOLD JAMES WHAT HAD
HAPPENED. AFTER FURTHER INVESTIGATION I
MADE THE DECISION TO SEND PAM AND JAMES
HOME AND REPORT BACK TO PERSONAL [sic]
MONDAY.
[signed by Robert Jones]

Jones also testified that Stewart asked him to sit in as a wit-
ness on Stewart’s interviews of employees regarding the inci-
dent; and that Respondent’s Exhibit 19(a) are Stewart’s notes of
his interview of employee John Gilbert, which notes are signed
by Gilbert. The notes read as follows:

pg. 1 of 2
9–22–7–Spoke to John Gilbert. R. Jones present.
–Re: Incident 9–19–97 involving P. Poff, J.
Rowlette & goose
On 9–19–97–Right after they returned from 2nd break
he (John Gilbert) saw J.R. Rowlette on lift truck with
goose in his lap, going towards west side of plant. . . .
—J. Rowlette stopped where he works at the carriage
weld out robot and James hollered at me (John Gilbert) &
said, “looky here” . . . John walks over and looked at the
goose. John asked him (JR) where he got the goose and
J.R. said it was outside, walked close to him (JR) and he
reached down and picked it up. Pam had pulled up and
was looking at goose. She left and came back with a piece
of paper & string. They, J.R. & Pam, hung a sign on its
neck. J.R. drove off towards backrest weld and Pam went
the other way. Didn’t see J.R. come back through area.
Didn’t pay any attention—was working.
pg. 2 of 2
—When he saw goose it didn’t look too riled up over
being caught. He pet the goose while J.R. had in his lap.
Goose didn’t want you to get close to its head, face area.
Shyed away from you.
—J.R. (Rowlette) held goose with one hand and drove
(guided) the truck with the other. Not for sure whether J.
Rowlette had any parts on his forks. Probably didn’t.
Normally travels from wheelabrator to paint booth.
Doesn’t remember seeing anything on forks.
—John talked to J.R. & Pam for a couple of minutes.
They put sign on goose & he left.
—Doesn’t feel it was right for them to have had the
goose held captive. Wasn’t right. Doesn’t agree with what
was done.
—Agrees it could’ve turned into a dangerous, bad
situation.
—“He wouldn’t have done it. Wouldn’t want that
done to me.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
If it were him he would expect to be disciplined. Not
sure how much.
[Both pages of the statement were signed and dated
“9–22–97” by Gilbert and Stewart.]

Respondent’s Exhibit 19(b) are Stewart’s notes of his Septem-
ber 22 interview of employee Thomas Johnston, which exhibit
was sponsored by Jones. They read as follows:
9–22–97–Spoke to Tommy Johnston. R. Jones present
Re: Incident 9–19–97 (Friday) involving James (JR)
Rowlette, Pam Poff & goose.

Saw J.R. Rowlette driving down aisleway by backrest
weld with a goose under his right arm as he was driving
by. Went back to work. J.R. didn’t stop. doesn’t know if
he turned around or went on. Dropped his . . . hood and
went back to welding.
Doesn’t’ think J.R. was carrying any parts. Doesn’t
know for sure. Wasn’t paying any attention.
Observed J.R. sometime after 6:00 pm break.

[signed by Thomas A. Johnston]
9–22–97

Respondent’s Exhibit 19(c) are Stewart’s notes of his Septem-
ber 22 interview of Witt, which exhibit was sponsored by
Jones. They read as follows:

pg. 1 of 2
9–22–97–Spoke to Bobby Witt. R. Jones present

Re: Incident 9–19–97 (Friday) involving James (JR)
Rowlette, Pam Poff & Goose

Was working, after 6:00 pm break, and looked up and
saw J.R. (James Rowlette) on a lift truck with a goose sit-
ting on his leg with his right arm around goose (he thinks)
and was driving truck with his left hand. Was headed to-
wards west wall of plant—backrest weld area. J.R.
stopped. Bobby walked out to truck & J.R. told Bobby that
the goose wanted one of the Teamster pins. Pam came
through an stopped (Thinks she knew JR had goose be-
cause she already had a sign prepared) and put sign around
its neck and left. J.R.continued down towards backrest
weld. J.R. didn’t have a load on his forks. When he left
area Bobby went back to work didn’t see him (JR) come
back through. Goose didn’t act like a wild goose—gave
appearance of being tame, didn’t appear to be afraid of
people. Bobby was out there
. . . .
talking to J.R. & Pam for up to five (5) minutes. Johnny King
walked up and stated it was mental cruelty to animals, or
something to that effect. Not sure whether Pam responded,
wasn’t paying attention. Bobby, John Gilbert, Pam & J.R.
were there when Johnny King walked up.
[Whitt, Stewart and Jones signed the statement which is dated
9–22–97.]
Respondent’s Exhibit 19(d) are Stewart’s notes of his September
22 interview of Jones, which exhibit was sponsored by Jones. They
read as follows:

9–22–97
per Robert Jones
—Johnny King told James Chaney what he had ob-
served regarding James Rowlette & Pam Poff parading
goose around the plant.
—James went to Pam & James and told them to re-
lease the goose. Pam began berating James.
—James went and advised Robert of the incident.
James told Robert that Johnny King had been looking for
him because he was upset with Pam & James parading the
goose through the plant. As he was looking for Robert he
saw James Chaney and related incident to him. James
went to Pam & J.R. and told them to release the goose.
James then found Robert and related incident to him.
Robert went and spoke to Johnny King to find out
what he had observed. Once he had this discussion with J.
King, Robert called me (T. Stewart) no answer. He then
called Mark Pool & related the incident & Mark advised
him to send both individuals home and tell them to report
to human resources on Monday, 9–22–97.
Robert went to the Wheelabrator area (Steel Stores)
and Pam & J.R. were sitting on their lift trucks. Robert
walked between them and told them “concerning the duck
incident I’m going to send you two home at this time. It’s
five until 8:00 pm & I’m going to pay you for seven hours.
You need to report to personnel on Monday (9–22) and
see Tom Stewart.”
James told Robert, “I didn’t mean anything by it. I was
just having a little fun.” Robert didn’t respond. Robert
turned and walked away. Pam said nothing.
. . . .
Robert didn’t witness any of the incident. Never saw
the goose.
A lot of people on the floor were upset.
Witnesses: —Johnny King—Bobby Witt—Tommy
Johnston—Chuck Hensley—John Gilbert
[Emphasis added.]

Jones signed the first page of this three-page statement and dated it
“9–22–97.” On cross-examination Jones testified that he gave
Stewart the statement from September 19 on September 22 before
he had his interview with Stewart; that he guessed that he told
Stewart about the union badge on September 22; and that he did
not know whether he mentioned the union badge to Stewart on
September 22.
Respondent’s Exhibit 19(e), which was sponsored by Robert
Jones, reads as follows:
9–22–97
TOM
I ASKED DAVID BLACKBURN TO WRITE
DOWN WHAT HE SAW FRIDAY NIGHT CON-
CERNING PAM & JR AND THE DUCK HE WROTE
THIS DOWN ON A POCKET NOTE BOOK BUT HE
SAID HE DIDN’T WANT TO SIGN IT.
[The note was signed “Robert.”]
The following note was attached:
When I was leaving work Friday night (9–19–97) a duck was
running around the parking lot acting crazy. I don’t know
what was wrong with the duck.
Respondent’s Exhibit 19(f) are Stewart’s notes of his Sep-
tember 22 interview of Poff, which exhibit was sponsored by
Jones. They read as follows:

NACCO MATERIALS HANDLING GROUP 1257
9–22–97 at 4:35 pm
Spoke to Pam Poff
R. Jones present
Re: Incident involving goose that occurred on 9–19–97
—Advised her I was in the process of conducting an
investigation of the incident involving her, James (J.R.)
Rowlette and a goose on Friday 9–19–97.
—Requested that she share with me what happened.
Response, “I refuse to answer on the grounds of my
union activities” Requested she put her denial to respond
(tell me what happened) in writing.
—Explained to her that I am conducting a fact finding
investigation and without her input I would have to rely on
the information gathered during my investigation to reach
a decision. A decision that could result in the loss of her
employment.
. . . . [The note is signed by Jones and his signature is
dated 9–22–97]

Respondent’s Exhibit 19g are Stewart’s notes of his Septem-
ber 22 interview of Rowlett, which exhibit was sponsored by
Jones. They read as follows:

9–22–97–4:10 p.m.
Spoke to James Rowlette (J.R.)
—Told him I wanted to discuss what happened on Fri-
day, 9–19–97 involving him, Pam Poff & the goose.
Asked him to tell me what happened. He replied “Due to
the union activity I refuse to say anything.”
—Told him that his right. Requested he put his denial
to respond in writing.
—J.R. didn’t have any union apparel on–no hat, but-
ton or T-shirt. Explained to J.R. that I regretted he has
chosen not to provide me with any information regarding
the incident on 9–19–97 involving him, Pam Poff and the
parading of a Canadian goose thru the plant in his lap
while operating a lift truck.
. . . .
Advised him that based on his not providing me with a
statement during my investigation that I would have to
rely on information gathered during my investigation to
reach a decision. A decision that could result in the loss of
his employment.
. . . .
Advised James that if he changed his mind about mak-
ing a statement that he could call me. Otherwise he was to
remain off work until the investigation was completed and
a decision made.
Again, I told him that without his input I would have
to rely on information obtained during our investigation to
make my decision. A decision that could result in his loss
of employment.
[The notes are signed by Stewart and Jones and dated
“9/22/97.”]
Jones testified that during the September 22 interviews neither he
nor Stewart asked Poff or Rowlett about their union activities and
the subject of union support was not discussed.
Regarding his Monday, September 22 meeting with Stewart
and Jones in Stewart’s office, Rowlett testified that Stewart
asked him if he wanted to tell him what happened and he said,
“No” he did not wish to make any comment on it due to the
union activities; that Mize, who is one of the union organizers,
told him, before he went to Stewart’s office, not to say any-
thing; that he was required to write “I don’t wish to make any
comments on what happened Friday night” and sign and date
the statement, Respondent’s Exhibit 5; and that they were told
to go back home and he, Stewart, would contact them later. On
cross-examination Rowlett testified that when he went to the
front office to see Stewart on Monday he saw Mize who ad-
vised him not to talk to Stewart; that when Stewart asked him
to explain what happened on Friday, September 19, he told
Stewart that he would not do that27; that Stewart then said he
regretted that Rowlett was not giving him any input on this
matter and without Rowlett’s input the company was going to
have to make its decisions based on the information it had
available; and that it is possible that Stewart said that one pos-
sible result of the investigation into what went on Friday night
was that he, Rowlett, might lose his job.
Regarding September 22, Poff testified that she spoke with
Jones and Stewart after Rowlett came out of the office; that she
signed a document which indicated that she refused to answer
any questions about her union activities; and that she told Jones
and Stewart that she did not touch the goose and she wanted to
make a charge against Chaney since he was lying and she did
not pin a badge on the goose. On cross-examination Poff testi-
fied that she wrote out Respondent’s Exhibit 11 which states “I
refuse to answer any questions concerning my union activities.”

As noted below, Respondent’s employee Larry Sims
signed Respondent’s Exhibit 13 and dated his signature
“9–22–97.”

With respect to Monday, September 22, Stewart testified that
the first thing there was a staff meeting of all the department
managers, including Gray, for an hour plus; that in addition to
discussing production he and Gray made those present aware of
the situation that had arisen on Friday evening but since they
did not have the details they could not discuss it at length “just
made—made them aware of it. And, that was the extent of it”
(Tr. 597); that King came in sometime that morning, dropped
off his statement, and explained what he meant by his use of the
word “paraded” in his statement; that he made notes of his 30-
minute meeting with King, Respondent’s Exhibit 23;28 that
shortly after the start of the second shift, which commences at
3:20 p.m., Rowlett and Poff came to speak with him; that he
had Jones with him when he conducted the interviews; that he
interviewed Rowlett first and he was dumbfounded when Row-
lett said that due to his union activity he refused of say anything
because he “personally had never seen any outwardly or any
behavior exhibited by Mr. Rowlett that would lead . . . [him] to
believe that he [Rowlett] was actively involved with the Union
organizational attempt”; that he had Rowlett put his refusal to
participate in the investigation in writing and he advised Row-
lett that as a result of the investigation of what occurred he

27 R. Exh. 5 is a statement which Rowlett signed on Monday, Sep-
tember 22. It reads as follows:
I don’t wish to make any comment on what happened Friday
night.
28 The notes indicate, in part, “Pam was going around telling people
that it (duck) was the ‘union duck’” and “estimates that they paraded
goose around the plant for approx. (5) minutes.” Also, the notes indi-
cate “Shortly after 6:00 pm break. Around 6:15 pm” and “—at 6 p.m.
they have a (10) minute break” and “Sign said, ‘Vote Yes.’” The last
page of the notes is a diagram of the involved area of the plant.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
could end up losing his job; that he also had Poff put her “re-
fusal to answer on the grounds of . . . [her] Union activities” in
writing and he advised her that the investigation could result in
her loss of employment; that in the past no employee had re-
fused to talk to him when he investigated employee discipline
situations; that during his meeting with Poff, she indicated that
she wanted to file a harassment claim against Chaney because
he lied about a badge on the duck; that after interviewing Row-
lett and Poff he interviewed Gilbert, Whitt, Hensley, and Johns-
ton; that Gilbert signed Stewart’s notes of their meeting after
Gilbert read the notes, Respondent’s Exhibit 19(a); that he fol-
lowed this practice with Johnston, Whitt, and Hensley, Respon-
dent’s Exhibits 19(b) and (c), and 15, respectively; that he dis-
cussed the matter with Jones shortly after he met with Poff and
he also took notes of the discussion, Respondent’s Exhibit
19(d), and he did not know why Jones referenced a union badge
on a string in his own statement regarding what occurred on
September 19, Respondent’s Exhibit 18, but he, Stewart, did
not include anything about the union sign in his notes of his
discussion with Jones on September 22; that Respondent’s
Exhibits 4 and 9 “are among the photographs from the camera
that . . . [he] reviewed in the investigation” (Tr. 613); that he
concluded that the involved conduct violated the rule or policy
of the company dealing with reasonable adult expectations; that
the involved conduct was not in the best interest of the goose,
of Poff and Rowlett, or their fellow employees or of the objec-
tives of the company; that there was potential for great harm to
occur to them, other employees and the equipment in the facil-
ity; that the company has a policy known as the adult expecta-
tions policy and it is incorporated into the company’s employee
handbook which is given to every employee; that Poff and
Rowlett were discharged for misconduct in that “they were
transferring the goose throughout the building, exposing them-
selves and other employees to personal injury, they were not
engaged in productive activity and they were detracting from
other employees engaged in work”; that Poff’s and Rowlett’s
union activity was not a reason for their discharges; that Poff’s
activity in the Union was a consideration as far as the ramifica-
tions associated with releasing her and it was probably a plus in
her corner because Respondent took into consideration the fact
that it would be facing a charge; that Plant Manager Gray made
the final decision to terminate; and that interviews were con-
ducted on Monday, September 22, it was discussed at our level
at the plant and with legal counsel as well as the vice president
of manufacturing and the vice president of human resources in
the Respondent’s division office on Tuesday and the decision
was rendered on Wednesday, September 24. On cross-
examination Stewart testified that when he was interviewing
Rowlett on the Monday after the incident that when Rowlett
said that he was not going to answer any questions because of
his union activity he, Stewart, was dumbfounded; that when he
interviewed Rowlett the Monday after the incident he was
aware that Rowlett paraded a goose around the plant with a
vote yes sign on it but he did not take that to be a showing of
support for the Union by Rowlett; that if Rowlett approached
an employee with the goose and said this goose wants to sign a
union card he, Stewart, would not construe that to be an expres-
sion of support for the Union; that he did not make the final
decision but rather merely investigated and presented the in-
formation to his superior who discussed it with the vice presi-
dent of manufacturing, the vice president of human resources
and legal counsel and the decision was rendered; that Poff’s
behavior toward Chaney after he requested that they release the
goose could be viewed as insubordination; and that when he
wrote the reasons down for her discharge on General Counsel’s
Exhibit 22. (See below.) He did not write anything about in-
subordination. On redirect Stewart testified that Rowlett was
the first person he interviewed that day other than King who
came by earlier that day; and that he assumed that Rowlett got
the goose from outside because he had never seen a goose in
the plant before. Subsequently, Stewart testified that he re-
ceived the statement of Chaney on Monday, September 22,
when he came in at the start of his shift at 3:20 p.m.; that it is
possible that he read the statement of Chaney before he inter-
viewed Poff and Rowlett; that he did not testify earlier that he
was dumbfounded that Rowlett was doing something which
would indicate that he supported the Union in some way but
rather he was “dumbfounded because of the lack of coopera-
tion”; that “they declined to offer any explanation to me which
dumbfounded me”; and that he was dumbfounded with respect
to Poff also.
Gray testified that on Tuesday, September 23, Stewart shared
with him the statements that people who were in the area had
made and what happened with his Stewart’s attempt to talk
with Poff and Rowlett; that Stewart told him what the facts
were, who had seen what, when it happened and how long it
lasted; that he received a telephone call, he believed on Tues-
day, from the Humane Society with the caller indicating that
someone had reported that a goose “was being messed with in
the plant”; that he explained to the woman from the Humane
Society that two individuals had taken a goose into the plant
and paraded it around and then let it go; that the woman asked
if the goose was injured and he replied that he did not think so–
he did not see any goose that looked like it was injured at the
time; and that after he went through the statements with Stewart
I called our division HR, the vice president of human re-
sources . . . and talked to him about the incident. I also talked
with my immediate superior . . . the vice president of manu-
facturing about it and I do this with most serious offenses and
I talked with Labor Relations attorneys in Raleigh about the
incident. I believe I spoke with them on Monday as well, but
I didn’t have any facts on Monday. Just basically described
what the situation was and we decided to wait and see what
the interviews revealed.
With respect to his understanding of what the facts were
Gray testified:
[R]egular employees had somehow captured a Canada goose,
one took the bird on a lift truck and restrained it while he
drove up and down the shop floor and showed it off to em-
ployees. His fellow employees who some stopped working
and went over and talked. Some didn’t. Some just laughed
and went on about their business.
As I understood it, some of the—James’ and Pam’s
fellow employees raised objection to the fact that they
were restraining the animal. It’s a rather large bird, I
might add, and the activity continued. One of the indi-
viduals went so far as to find a group leader who was in
charge of the paint system who would have been over Mr.
Rowlett and told him about it and he went to James and
asked him to let the animal go and during that situation
James and Pam were there together with the bird between
them. They didn’t let the animal go at that time. It was
some minutes later that the animal was released.
NACCO MATERIALS HANDLING GROUP 1259
. . . .
Rowlett was driving the fork lift holding the animal in his lap.
. . . .
It appeared to me that . . . [Poff] was actively involved in it.
They had it between them when—when James Chaney went
to see about it. At one point one of their co-workers men-
tioned that she came up and put some sign with string around
the animal’s neck as it was going through the shop. She was
quite vocal and appeared to be the spokesperson when
Chaney asked them to set the animal free. She was the one
that did all the talking.
Gray also testified that what was done was unsafe because you are
not supposed to drive a lift truck with passengers on it, robots are
used in the plant, if an employee is distracted it could cause an
accident, and there was a risk to the bird itself; that Respondent has
made sure that the Canada geese have a habitat and he did not want
the Company’s reputation in the community to be damaged; that he
concluded that the activity with the goose went on for almost an
hour because the activity started after the break which would have
been about 6:15 p.m. and a plant surveillance camera, which takes
a picture every 6 seconds clearly showed that there was activity
with the goose after 7 p.m.; and that during the investigation he
became aware that Poff hung a sign around the goose’s neck and
vote yes was on the sign. On cross-examination Gray testified that
he spoke with the person from the Humane Society on Tuesday,
“she may have called Stewart on Monday because he handed me a
note that the humane society had called and them I spoke with her
on Tuesday”; that he did not tell the woman from the Humane
Society about a vote yes sign being hung around the goose’s neck
and he was real certain of that because he “was so embarrassed by
the whole situation and [he] didn’t want to tell anybody outside the
plant about something so ridiculous”; and that he did not know
how much time the company lost in the whole facility as a result of
the goose incident.
Mize testified that he has seen geese, ducks, birds, skunks,
cats, and dogs in the plant; that years ago when he worked on
the second shift a wild duck would come into the plant on a
regular basis; that there were employees that fed the geese; that
he has seen geese that appeared to be tame and unafraid of
people; that when employees do not have work to do in some
cases the supervisor will find work for them to do and in some
cases the employee does as he wishes; that while at work he has
seen employees making knives and work on automobile parts
from home, chainsaws, weedeaters, lawnmowers; that he has
seen employees bring lawn furniture from home, put it on the
wheelabrator in the plant and paint it; that he has seen and he
has been involved in conversations between employees in the
plant regarding personal matters which conversations go on for
up to an hour and supervisors have been involved; that he had
worked on second-shift overtime and the majority of the time
by the time the second shift got there the first shift had pretty
much cleaned out all the work and most nights it did not take
the whole shift to complete the rougher things that the first shift
did not complete; that the supervisors liked the overtime also
and they let the employees stay until the end of the shift; and
that when he worked overtime on the second shift he did have
periods of an hour or two with no work to do at the end of his
shift. On cross-examination Mize testified that a wood duck
came into the plant 10 to 15 times in 1988 and 1989 and em-
ployees were feeding the duck; that in 1988 and 1989 he saw a
Canadian goose in the plant when the company was called
Heyster and it was under different management; that the plant
started going by NACCO and had new management in about
1993, and he has not seen ducks or geese in the plant in the last
few years; that the company expects employees to find other
work to do when they finish whatever task is at hand, and that
is part of the company’s adult expectations; that employee Jerry
Heron was the one who brought in the porch furniture and he
did it in 1998; that he did not know if his supervisor told him
that it was okay to work on the porch furniture in the plant; and
that employee Gene McKeehan, who works in his department,
would spend an hour at a time making knives in the plant in the
winter of 1997–1998. On redirect Mize testified that the super-
visor in the area directly across from him in the plant spends
from 30 minutes to an hour discussing the Bible and religion
with his employees during worktime; that in 1997 his supervi-
sor had a fishing pole he wanted to sell and he told the supervi-
sor that he would look at it after work but the supervisor told
him “[c]ome on, we’ll go get it” and they went to the parking
lot during work time, the supervisor showed him how to oper-
ate the pole and he bought it; that this excursion took about 20
minutes;29 that in 1988 and the first part of 1989 he worked on
second shift and then he moved to the first shift; that he did not
see as many wild animals in the plant on the first shift because
there was too much hustle, bustle, and traffic noise; and that the
second shift is quieter. On recross Mize testified that the su-
pervisor who participates in discussions of religion and the
Bible just about every day is Rusty Brandenburg;30 and that the
incident with Supervisor Willis selling him the fishing pole
occurred in the summer of 1997.
Simpson testified that Poff was present at all of the handbill-
ings, except one night session, and she was one of two employ-
ees, along with Mize, that he keyed on during the organizing
drive;31 and that he was not aware of any other employee on the
organizing committee leaving Respondent.
Mize testified that Poff was his head in-plant organizer on
the second shift; and that Poff helped get cards signed, passed
out union information, flyers, talked to people who had ques-
tions, and tried to get answers for them if she could not answer
the questions herself. On cross-examination Mize testified that
Respondent’s Exhibits 6(a) through (o) are handouts which
were circulated to employees during the union campaign; that
all of the employees on the in-plant organizing committee,
except Poff, still worked for Respondent at the time of the hear-
ing herein; that employees, including Poff, wore a Teamsters T-
shirt at work; that Respondent’s Exhibits 7(a) through (d) are
the texts of some of the signs that he posted on his truck during
the 1995 UAW organizing campaign at Respondent’s involved
facility; that he was also the lead in-plant organizer during the
1995 UAW organizing campaign; that after he became active
with the UAW in 1995 he was disciplined in that in the spring
of 1996 he was counseled for absenteeism regarding a work-

29 The supervisor, Jimmy Willis, testified that he did take Mize to the
parking lot about 8 or 8:30 a.m. or possibly 10 a.m. to show him a
fishing rod; and that they were gone outside the plant 10 to 15 minutes.
30 Brandenburg testified that he has worked 24 years at the involved
plant, that for the last 4 years he has been the production control super-
visor; that he discusses religion inside the workplace; that there are 10
to 12 people on the first shift that he talks to occasionally about relig-
ion; that he does this while the people are working or on break; that he
does not prevent people from working, and that he spends 10 to 15
minutes with any one person and the only time it would ever be longer
would be at lunch.
31 Some of the handbillings occurred after Poff was terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
related injury; and that as indicated by a picture in the in-plant
newspaper for September 1997, General Counsel’s Exhibit 4,
he wore a Teamsters Local 651 cap. On recross Mize testified
that Willis was the supervisor who counseled him on absentee-
ism saying something to the effect “[y]ou’re getting close on
your . . . absenteeism and . . . you need to watch it. You don’t
need to get in any trouble right now”; and that the only days (3)
he missed around that period were due to a work-related injury,
viz., a pinched nerve in his back for which he filed a workers’
compensation report and claim.32
Pool testified that “later in the week, the following week”
(the week after the September 19 goose incident) there was a
discussion about goose incident among the upper management
staff as to the appropriate action and what would be deemed
consistent with other actions Respondent had taken; that those
who attended this meeting included himself, Plant Manager
Gray, Assembly Manager Ken Holt, Quality Manager Mark
Hume, Resident Engineer Dave Billings, Materials Manager
Phil Shelton, HR Manager Stewart, Manufacturing Engineering
Manager John Garner, Gray’s secretary Dana for note taking,
MIS Manager Steve Stamper, and Financial Manager Bill
Teatche; and that “all decisions like that are made by Mr. Gray
after he has it blessed by his bosses.” On cross-examination
Pool testified that there are two staff meetings with one on
Monday and one on Wednesdays; that he did not think the final
decision was made until that Wednesday and he thought that
information was passed regarding this incident on both morn-
ings; that they compared it to other type instances to ensure that
they were looking at a level of consistency in their decisions;
that the facts considered at this meeting included that Poff and
Rowlett refused to stop parading the goose around the plant
when Chaney asked them to; and that he was not sure if he
understood this from what they were told by Stewart or Gray.
Subsequently, Pool testified that because they did not do what
Chaney told them to do Poff and Rowlett were insubordinate
and part of the situation for which they were terminated was
insubordination.
Gray testified that Wednesday, September 24, the day after
he spoke with the woman from the Humane Society, there was
a Canada goose walking around limping outside the plant; that
he did not know if it was the same one; that employee Roseann
Meade placed the goose in a large cage and she took it to her
father’s farm; that he assumed that it was the same bird; that
sometime after diner on Wednesday September 24, 1997, he
made the final decision to terminate Poff and Rowlett.
On September 24, Stewart telephoned Rowlett and asked
him if he could come to the plant. Rowlett testified that he
went to the plant and Stewart told him that he did not have a
job any longer due to what had happened; that he told Stewart
that even if he had told him the truth, he would not have be-
lieved him because of all of the rumors that had been spread;
and that he told Stewart that all he was doing was trying to have
a little fun out of it and that is all he meant by it. On cross-
examination Rowlett testified that he was not aware that any

32 Willis testified that he did not know if he had ever given Mize a
counseling for attendance because he did not recall Mize ever having
an attendance problem; that he would not consider giving an attendance
counseling to someone because of a work-related injury; and tha he
maintains his own attendance record on each of his employees and he
reviews these records with each of his employees periodically to let
them know how they are doing in this regard.
supervisor knew that he signed a union authorization card; and
that he never wore a union T-shirt to work.
Poff testified that on September 24 Stewart telephoned her
right before dark and asked her to come to the plant; that she
went to the plant and Stewart said that he had decided to termi-
nate her and Rowlett; that Stewart did not give a reason at that
time; that subsequently when she telephoned the plant and
asked Stewart what she should give as the reason for her termi-
nation he said “structural”; that when she asked him what that
meant he said that if they had any questions they could contact
him; that she filed for unemployment and she eventually re-
ceived it; and that, as demonstrated by General Counsel’s Ex-
hibit 9, she had received satisfactory to excellent ratings, as
here pertinent, from 1988 to 1997 and she had received pay
raises during this period.
Chaney testified that he spoke to employee Alan Cashin
about leaving a half hour before lunch when there was work to
be done, and when Cashin repeated this conduct the next day
he, Chaney, told Jones about it.
Jones testified on cross-examination that Poff and Rowlett
were not discharged because they refused to answer questions
on September 22; that he was present for the interviews of Poff
and Rowlett; that the Company conducted a campaign against
the union during this period; and that the discharge of Poff and
Rowlett took place in the midst of that campaign; that the first
page of General Counsel’s Exhibit 13 is an employee counsel-
ing form for Cashin, which is dated “4–3–97” and signed by
Jones,33 and which indicates “BEHAVIOR OF THIS NATURE
[leaving his job early on April 3, the second consecutive day, to
go to dinner] WILL NOT BE TOLERATED & ANY FUTURE
INCIDENTS OF THIS NATURE WILL RESULT IN YOUR
TERMINATION”; that he did not check Cashin’s file before
giving him this counseling;34 that on January 30 he saw em-
ployee Gene Parker take 45 minutes for a break when he was
supposed to take a 10-minute break; that a few days later he
saw Parker leave early before the end of his shift; that the next
night he saw Parker and employee Phil Bradley, who rode with
Parker, leave early; that he did not give Parker any formal
counseling or discipline for taking the 45-minute break but he
may have spoken Parker about it, warning him not to do it
anymore; that when he saw Parker leave the plant and not come
back at the end of his break he decided to talk to Parker and
that would take care of it; and that he was not going to fire
Parker for one time. On redirect, Jones testified that he was not
involved in the decision to terminate Poff and Rowlett; that
excluding attendance issues he does less than five disciplinary
counselings a year and the turnover at the plant is pretty low;
and that Parker was terminated shortly after he caught Parker
leaving early one night. On recross Jones testified that King
and Hensley told him that a lot of employees were upset about
33 What appear to be the signatures of Cashin and Stewart also are on
the form. Page two of the exhibit is a one-page note signed by Chanely
summarizing what happened on April 2, regarding Cashin leaving his
work station early. Page three of the exhibit are notes of the meeting of
Jones, Chaney, Lonnie Cash, who is the frame weld supervisor, and
Steward with Cashin on April 3.
34 Cashin’s file contains an employee counseling form dated January
9 signed by Cash, Stewart, and Cashin and a supporting memorandum
dated January 9 from Cash which indicates, in part, “[t]there are two
areas of concern: (1) Being out of his work area and (2) Less than ex-
pected levels of production. . . . Alan was told that if improvements
were not made, more counseling and possible termination could result.”
NACCO MATERIALS HANDLING GROUP 1261
the goose incident. Subsequently, Jones testified that he could
not remember what Gilbert said during his interview about
where Rowlett said the goose was when it was picked up; that
on September 19 King was welding the outer for the upright
mast, which is part of the lifting device of the forklift; that the
item that King was welding on September 19 would not have
gone to Rowlett’s wheelabrator to be further processed. And
further Jones testified that sometimes people refer to the small
wheelabrator area as “outside” because while it is an indoor
area, it is not inside the main plant.
Pool, on cross-examination, testified that on December 10,
1996, he signed an employee counseling form for employee Ed
Murray, General Counsel’s Exhibit 15; that the form memorial-
izes a warning he gave Murray for unsafe material handling
practices and the supporting memorandum notes that this was
the third unsafe practices incident that Murray was involved
in.35 On redirect Pool testified that, with respect to the Decem-
ber 1996 incident, Murray told him that he did not see the bar-
rier post which was installed over the weekend. The supporting
memorandum indicates “[t]he incident was strictly a lack of
attention on Ed’s part.”
Sesta testified that on Thursday, September 25, she received
another telephone call from Gray during which he indicated
that the goose was showing signs of distress and he believed
that the goose was injured; that she informed Gray that she had
already spoken to Kentucky Fish and Wildlife which indicated
that they did not have a problem with one of her wildlife reha-
bilitators picking up the bird albeit they were not sure whether
it would fall under Federal jurisdiction because of it being a
migratory bird; that she spoke to Tom Edwards at Kentucky
Fish and Wildlife; that the rehabilitator, Carol Holland, told her
that (a) when she telephoned Respondent36 she was informed
that someone working at the plant felt that they were competent
in handling a large bird that was injured and that this person
had a farm, (b) Respondent allowed the goose to go home with
this person, (c) she, Carol Holland, told Respondent that the
goose had to be turned over to her because it was protected and
the person who had possession of the Canadian goose in ques-
tion should contact her so that she could pick the bird up, and
(d) no contact was ever made; and that there was no further
contact with the plant after that regarding the goose. On cross-
examination Sesta testified that Gray telephoned her on Thurs-
day, September 25, and told her that the goose was showing
some signs of distress; that she believed that Holland contacted
Respondent the same day she, Sesta, received the telephone call
from Gray who indicated that the goose seemed to be exhibit-
ing signs of distress; that Gray might not have telephoned Hol-
land back until September 26 but when he spoke with her he
indicated that the goose was not at Respondent’s facility any
more; that Holland asked Gray to tell her who had the bird and
Gray did not volunteer the name but rather told Holland that he
would have the person contact her; that Holland told her that
she informed Gray that it was not permissible for an uncertified
person to take this goose; and that Gray still did not disclose to
Holland where the goose was. Subsequently, Sesta testified

35 One of the other incidents involved dropping a load of channels
off the forklift due to unsafe driving. For the first incident, which in-
volved an electric overhead guard, he did not give Murray a formal
counseling but did talk to him. On redirect Pool testified that neither of
these earlier incidents involved an intentional act.
36 Sesta assumed Holland Spoke with Gray because that is who she
told Holland to contact.
that she never did learn the name of the individual who suppos-
edly had possession of the goose for a while.

Respondent’s Exhibit 13 reads as follows:

9–25–97 pg. 1 of 2
per Larry Sims
2 or 3 months ago went out to the outside rack where tires are
stored to get some tires. He noticed there were tires laying in
the grassy area, between the racks and the fence, so he went
around to [where] the tires were and began picking them up
so he could take back inside to use at the tire press. He no-
ticed Dolphus Young moving a skid and a ground hog ran out
from under the skid and ran towards the fence. Ground hog
couldn’t get through the fence so he turned and ran towards
Larry gnashing his teeth. Larry picked up a “stick” and as he
was backing up swung the “stick” at the ground hog, missing
a couple of times, hitting the ground hog and breaking the
“stick”/board. On the third swing Larry hit
. . . .
Larry Sims–Ground Hogpg. pg. 2 of 2
the ground hog in the head. The ground hog rolled over &
Larry made sure he was dead. Larry ended up taking the
ground hog home to his mother-in-law who prepared it for
Sunday dinner.
States he was afraid the ground hog was going to bite
him. Kept coming at him.
[signed by Larry E. Sims Sr.]
9–22–97
Sims testified that his job required him to go outside to pick up tires
off a rack; that he noticed that some tires had fallen behind the
racks so he got off of his forklift truck and picked up the tires; that
while he was picking up tires Young picked up a skid and a
groundhog ran out; that when the groundhog started running to-
ward him he backed up and picked up a small stick and killed the
groundhog with it; that when the groundhog started running toward
him he was between it and the fence; that he backed up about two
or three steps; that he put the dead groundhog on the floorboard of
his forklift and drove it back into the plant; that he eats those kind
of animals; that employee Lynn Hisle took a picture of the dead
groundhog; and that he signed Respondent’s Exhibit 13, which is a
statement he prepared with the Company on the date indicated on
page 1 and it accurately reflects what he told the company on that
date. On voir dire regarding Respondent’s Exhibit 13 Sims testified
that he gave the statement about 2 or 3 months after the incident;
and that the picture of the groundhog appeared in the September
1997 Berea newsletter which was received by the employees be-
fore he was asked to give this statement to the company. On cross-
examination Sims testified that at least two supervisors knew
about the dead groundhog at the time; that he killed the groundhog
about 2:50 p.m.; that his shift ended at 3:20 p.m.; that after he
killed the groundhog he spent about 15 minutes picking up the
tires; that he has hunted groundhogs and he once killed a ground-
hog which was running away from him with a rock; that he killed
the groundhog with a rock to eat it; that he was called to the
office to give the statement after Poff and Rowlett were fired;
and that he knew that the reason the Company wanted the
statement was because people were raising questions about why
the Company fired Poff and Rowlett. On recross Sims testified
that the groundhog ran toward him and the fence and before the
groundhog ever got to the fence he hit it with a stick and killed
it; that is what happened; and that in view of the sentence in his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
statement that the groundhog could not get through the fence it
turned and came at him gnashing its teeth, he guessed his prior
testimony that he killed the groundhog before it got to the fence
was not true and when the groundhog cold not get through the
fence it came at him.
Young testified that he moved a skid and a groundhog ran
out, tried to run through a fence and then turned, growled and
ran at Sims; and that Sims ran backwards and then hit the
groundhog and killed it. On cross-examination Young testified
that Sims backed up 8 to 10 feet; that his statement to the com-
pany dated September 25, which he signed on the same date,
General Counsel’s Exhibit 10, indicates the Sims backed up 30
to 35 feet; and that when he gave the statement to the Company
Stewart told him that they were trying to claim that the ground-
hog was the same as the employees having the goose in the
plant.
Stewart testified that after the discharges of Poff and Rowlett
he interviewed employees Sims and Young because the plant
newspaper had an article and a picture in it about the ground-
hog which Sims killed; that he heard that there were people
who said that the situation with the groundhog was the same as
with the goose; that Respondent’s Exhibit 24 is a union handout
which contains the picture of the dead groundhog with the cap-
tion as it appeared in the plant newspaper along with the fol-
lowing: “Kill a Ground Hog . . . We’ll Publish You[r] Story . . .
Play with a Duck . . . You’re Out of Here!!!!!”; that while Poff
and Rowlett willfully engaged in the activity to detain and
transport a goose within Respondent’s facility, Sims engaged in
an act of self-defense; and that the Sims incident did not change
his mind about the decision to terminate Poff and Rowlett. The
picture of the dead groundhog appeared in the September 1997
Newsletter, General Counsel’s Exhibit 4. Stewart testified that
this newsletter would have come out in late August 1997.
According to the testimony of Gray, the Wildlife people
called him about 7 days after Roseann Meade took an injured
goose to her father’s farm. Gray testified that the Wildlife per-
son did not tell him that he was supposed to let a licensed reha-
bilitator look at the goose; and that he told the Wildlife person
where the animal was. Subsequently Gray testified that he just
told the Wildlife person that the goose was at an employees’
father’s farm; that he did not know the location of the farm; that
the Wildlife person never asked for the name of the person who
took the goose; that (after going off the record to check his
notes) he had one call from the Humane Society and one call
from the Wildlife people; and that
[t]his was several days after the incident. It was on the
30th and Nanna Holland did call me and expressed some
concern and I told her that the bird and I assumed it was
the same bird, had been taken by Roseann Meade and car-
ried to her farm and that was basically the extent of the
conversation.
Approximately 2 weeks after Poff and Rowlett were fired
Owens had a conversation with Ken Holt, Respondent’s pro-
duction manager. With respect to this conversation, Owens
testified that he was assembling headlights and taillights one
afternoon and Holt walked up and started a conversation; that at
the time he was wearing a union button and he asked Holt why
Poff and Rowlett were fired; that Holt answered, “[t]hey were
stealing”; that when he asked Holt what they were stealing Holt
answered, “[t]hey were stealing time”; that he told Holt that
half the people in this building stand around and talk to one
and another, even the supervisors also do so, and kill time,
that’s not anything else that any of the rest of us are not guilty
of[;]
that Holt then said “Jerry, I thought you were a good moral Chris-
tian man and to see you come out against the Company really sur-
prised me”; and that he told Holt that he was not against the com-
pany at all but he wanted to see the Company do the best by its
people.
General Counsel’s Exhibit 22 is a “PROTEST OF
BENEFIT PAYMENTS AND POTENTIAL CHARGES
TO EMPLOYER RESERVE ACCOUNT” which is dated
“11–5–97,” signed by Stewart and was submitted to Workforce
Development Cabinet, Employment Service. The Employer’s
statement on the form reads as follows:
Individual [Poff] was discharged for misconduct associated
with bringing a Federally protected species (goose) into the
plant/manufacturing area and her behavior which disrupted
production activities of plant, as well as, endangering the
safety of her co-workers and the animal.
General Counsel’s Exhibit 21 is a “PROTEST OF
BENEFIT PAYMENTS AND POTENTIAL CHARGES
TO EMPLOYER RESERVE ACCOUNT” which is dated
“4–21–98,” signed by Stewart and was submitted to Workforce
Development Cabinet, Department for Employment Service,
Unemployment Insurance. The Employer’s statement on the
form reads as follows:
Individual [Rowlett] was released from our, NACCO Materi-
als Handling Group, Inc., for behavior that did not meet adult
expectations, posed a safety hazard to the individual, as well
as other employees, & unauthorized activity instead of work
individual was being paid to perform.
Stewart testified that in the last 4 or 5 years there have been
less than 10 terminations at the involved plant; that Respon-
dent’s Exhibit 25 is a separation report, dated “2–10–97,” for
Parker who was observed sneaking out of he facility prior to the
end of his shift; that Parker accepted his invitation to resign in
lieu of being terminated; that Respondent’s Exhibit 26 is a
separation report, dated “7–27–95” for Eddie Beach, who was
released for leaving his work area and going outside and fishing
at the pond which is on the premises during his work hours;37
that Respondent’s Exhibit 27 is a separation report, dated “2–
10–97,” for Raymond Phillip Bradley for leaving work, with
Eugene Parker, prior to the end of his shift without authoriza-
tion;38 that Respondent’s Exhibits 28 and 29 are separation
reports, both dated “9–16–96,” for two named employees who
were separated because they were discovered engaged in a
sexual activity away from their work station during normal

37 The second page of R. Exh. 26 indicates, in part, as follows:
Eddie Beach is being discharged for cause due to his failure to
meet the reasonable adult expections of all of our employees.
1. Failure to get approval to leave the area during working
hours.
2. Taking Co. time, by fishing while on the clock.
3. Expecting other employees to “cover” while he flagrantly
misused his option to be away from the area.
And the third page of R. Exh. 26 describes Beach a a “weekend employee.”
The involved fishing incident occurred on July 23, 1995, which is a Sunday.
38 Stewart testified that he was not aware of Bradley ever being
caught leaving work early in the past.
NACCO MATERIALS HANDLING GROUP 1263
working hours;39 that Respondent’s Exhibit 30, dated “7–20–
98” is the separation report for employee Charles Bowling who,
according to Stewart’s testimony, was engaged in a water fight
in a work area; that Respondent’s Exhibit 31 is a separation
report, dated “7–20–98”40 for employee Bobby Dickerson who
was released for leaving work early without authorization41;
that Respondent’s Exhibits 33 and 34, both dated “7–30–96”
are separation reports for Adam Vanzant and Bret Poynter both
of whom were involved in the theft of Company property;42 and
that Respondent’s Exhibits 35 and 36, both dated “9–24–97”
are the separation notices of Rowlett and Poff, respectively. On
cross-examination Stewart testified that as indicated in General
Counsel’s Exhibit 16, which is an employee rating report for
Parker issued “5/2/95,” he had a rating of between unsatisfac-
tory and satisfactory in safety, productivity, cooperation stan-
dard operating instructions and overall rating and he had an
unsatisfactory rating in progress; that as indicated in General
Counsel’s Exhibit 17,
On 5/25/95 Gene Parker . . . admitted to the grinding of pro-
fanity into a S-70 cowl. This occurrence was discussed with
Gene at great length and . . . [it] was clearly understood by
Gene that he failed to meet our adult expectations. Gene was
advised that this memorandum would be placed in his file for
one year. To track Gene’s progress in the area of adult expec-
tations he will receive an employee rating report in one
month[;]
that the profanity Parker ground into the cowl was “F-U”; that
Parker’s personnel file did not contain an employee rating re-
port dated 1 month after this incident; that Respondent does not
always fire someone the first time they fail to meet the adult
expectations clause; that General Counsel’s Exhibit 18 is an
employee counseling form for Scotty Bullens, dated December
1996, which form indicates that Bowling was wasting time, not
making good use of time, and spending too much time talking
and not enough time working; and that General Counsel’s Ex-
hibits 19 and 20 deal with an employee counseling of Roger
Payne over an incident where Payne had an accident while
driving a truck of Respondent. On re-cross General Counsel
introduced General Counsel’s Exhibit 23 which is an employee
counseling form for Terry McKeehan who made a threat to get
back at another employee.
Gray testified that he is the only one at the Berea plant who
can authorize the termination of an employee; that usually the
first-line supervisors initiate the process and do the investiga-
tion and handle the counseling and if all efforts fail, and they
see no alternative they will recommend termination; that since
he became plant manager of the Berea plant in September 1993
the turnover rate has been extremely low; that with respect to
General Counsel’s Exhibit 7, which is the letter he received
from Simpson at the beginning of the 1997 union campaign,
with the exception of Poff, all of the other employees named in
the letter are still working for Respondent; that he has dis-

39 This was the first time they were so discovered.
40 In her objection to this matter, counsel for the General Counsel
pointed out that the incident occurred after the terminations in question.
Respondent argued that Respondent was demonstrating numerous first
instance terminations and this incident was consistent treatment there-
with.
41 Counsel for the General Counsel also objected in this exhibit since
it dealt with a matter which occurred after the involved terminations.
42 Stewart testified that these two employees had never been in trou-
ble for this sort of thing before.
charged other employees for not meeting the plant’s adult ex-
pectations, namely, (a) two employees who were stealing from
the fabrication shop, (b) two employees who left their work
area, went to the records retention room, where were caught in
a compromising position and admitted that this was not the first
time they had done it on Companytime, (c) an employee who
got caught falsely claiming overtime during a 6-month period,
and (d) two employees who left the plant 45 to 50 minutes early
without authorization; and that he has given employees a sec-
ond chance if they show remorse and make a commitment to
change their behavior and cooperate in the healing process. On
cross-examination Gray testified that of the employees who
were discharged two were caught stealing from the plant, the
two employees who left the plant early without authority were
dishonest, the employee who make repeated false overtime
claims (about $6000 worth) was in a sense stealing from the
company, he was involved with drugs and he was “beyond
reclaiming as an individual”; that, with respect to whether he
considered that Poff and Rowlett were making a joke and hav-
ing fun, he put Poff’s and Rowlett’s involved activity in the
same category as the two employees who left their work area
and were caught having sex in the records retention room in
that “[t]hey were having [f]un and they admitted they were
having fun and had fun several times and they were grown too
and that’s not the kind of behavior that we can tolerate at our
facility; that the duration of the involved activity of Poff and
Rowlett was entirely too long even if it was a practical joke;
that “[t]he disregard and the uncooperative attitude that they
took and they never at one time even said Mr. Gray we were
just having fun. Let us have another chance. They never asked
any of that.”; that he did read Jones’ account of what happened
the night of the incident, Respondent’s Exhibit 19(d); that, after
reading the Jones statement at the trial herein, he “remem-
ber[ed] it now”;43 that the two employees who left with their
car lights off before the end of their shift had been dishonest
numerous times; and that at this particular plant up until the
Poff and Rowlett discharges, other than attendance, the only
first-offense things he fired employees for was dishonesty or
having sexual encounters in the plant on worktime. On redirect
Gray testified that he had forgotten about the Beach incident,
Respondent’s Exhibit 26, where the employee was terminated
for fishing at the plant pond during worktime; and that Bowling
was terminated (on July 20, 1998) when he engaged in a water
fight with another person in the plant and the other person
slipped and fell and had to be carried to the hospital where he
received stitches.44
Analysis
Paragraph 5 of the involved complaint alleges that about Au-
gust 28 Respondent, by Stewart at the driveway to its Berea,
Kentucky facility, engaged in surveillance of its employees’
activities on behalf of the Union and had the police called while
employees were distributing literature near Respondent’s prop-
erty. On brief, counsel for the General Counsel contends that
the credible evidence established no actual trespass by Union
Representatives Simpson and Pierce during the handbilling
43 P. 2 of the statement contains the following: “James [Rowlett] told
Robert [Jones] ‘I didn’t mean anything by it I was just having a little
fun.”’
44 Gray testified that one of the two involved in this incident “took it
on himself to go out to a Wal-Mart and buy a super soaker which is a
rather large water pistol and they were having a water fight.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
activity; that Simpson was familiar with the State laws respect-
ing public rights-of-way, and testified credibly that he and
Pierce stayed within that right-of-way, namely, 15 feet of the
centerline of the roadway; that Respondent did not introduce
any evidence of the location of its property line, other than the
testimony elicited about the lone stake; that the credible evi-
dence establishes that Stewart told the handbillers to leave and
he summoned the police when they refused; that when Stewart
learned of the handbilling incident at Kokoku Rubber, in which
the company had succeeded in persuading the local police to
erroneously instruct the handbillers to leave based on the com-
pany’s complaints that they were trespassing and blocking traf-
fic, he set out to accomplish the same result; that Stewart
closely observed the handbilling for approximately 40 to 45
minutes, until the first-shift employees had finished exiting the
plant; that as pointed out by the administrative law judge in
Gainsville Mfg. Co., 271 NLRB 1180, 1188 (1984), where the
employer’s representatives had observed handbilling for a pe-
riod of 15 to 20 minutes “[w]hether or not intended, Respon-
dent’s conduct had a clear and obvious tendency to interfere
with employee receipt of the union literature. It is the tendency
of Respondent’s conduct to be coercive which determines the
violation and not the actual effect”; that in Hoschton Garment
Co., 279 NLRB 565, 566 (1986), the Board affirmed the
judge’s conclusion that the respondent there violated Section
8(a)(1) of the Act by engaging in surveillance of and attempting
to restrict union handbilling on public property; and that Stew-
art’s claim that he remained at the end of the driveway
throughout the handbilling because of “safety concerns” is so
ludicrous as to cast doubt on his overall credibility, and cer-
tainly on his account of the events surrounding the handbilling.
Respondent, on brief, argues that Simpson was on company
property and Stewart asked him to remove himself from the
premises; that Stewart remained near the handbilling activity
because he was concerned about (a) traffic backing up at shift
change and on the road in front of the plant, one or more of the
handbillers’ vehicles were parked in positions partially ob-
structing the street and (b) Simpson remaining off Respon-
dent’s premises; that the Board has long held that there can be
no complaint that union activity is observed when it is done
openly and at the employer’s property, Brown Transport Corp.,
294 NLRB 969, 971 (1989), where the administrative law judge
and Board determined that there had been at least minimal tres-
pass sufficient to warrant that company’s terminal manager’s
subsequent monitoring on several occasions of the handbilling
activities, the manager’s repeated monitoring was not so unrea-
sonable as to suggest it was motivated by an intent to interfere
with the union activity, and while subjective impact on em-
ployees of the terminal manager’s observation is not a test for
the violation alleged, it is nevertheless noteworthy that no evi-
dence of adverse impact on employees was adduced, which
suggests that none was intended; and that the fact that Stewart
made no notes or otherwise attempted to record or list employ-
ees involved in the handbilling activity undermines any claim
of coercive surveillance, Phillip Industrial Components, Inc.,
216 NLRB 885, 886 (1975).
The administrative law judge in Brown Transport Corp., su-
pra at 971 and 972, as here pertinent, concluded, with Board
approval, as follows:

The Board has long adhered to the principle that union
organizers and the employees they seek to organize have
no cause to complain that the employer of the employees
has observed their activities where such activities are
openly conducted at the employer’s premises. [Case cites
omitted.] In Tarrant Mfg. Co., 196 NLRB 794 (1972), an
administrative law judge with Board approval stated the
principle in somewhat broader and clearly more forceful
terms saying at 799, “The notion that it is unlawful for a
representative of management to station himself at a point
on management’s property to observe what is taking place
at the plant gate is too absurd to warrant comment.” The
Board has suggested that the principle finds additional
support in the general recognition of an employer’s legiti-
mate property rights and the “proprietary prerogative” to
expel and bar nonemployee union organizers from the em-
ployer’s premises. Hoschton Garment Co., 279 NLRB
565, 567 (1986). Thus, the principal has particular appli-
cation in those case[s] where nonemployee union organiz-
ers are found to be trespassing on the employer[’]s prem-
ises in connection with their handbilling or other organiza-
tional efforts. Id. Accordingly, even an employer’s close,
as opposed to casual, observation of union activity at or
near his premises in order to preclude trespass cannot be
found to constitute unlawful surveillance of that activity.
In short, the “monitoring of trespassory activity” of non-
employee union representatives does not violate Section
8(a)(1) of the Act. Id.
Notwithstanding the foregoing, where an employer’s
observation of open union activity is shown not to be cas-
ual in nature, based on trespassory concerns, or concerns
over safety of ingress or egress, but rather upon a deliber-
ate attempt to interfere with the legitimate union activity
of employees (as in cases where the observation is coupled
with overt actions extending beyond the employer’s prem-
ises or demonstrating that the observation is specifically
calculated to disrupt the union activity) such observation
will be found to be unlawful surveillance violative of Sec-
tion 8(a)(1). [Case cites omitted.]
In determining whether an employer’s observation of
union activities at its premises is casual, innocent, or
prompted by legitimate concerns on the one hand, or cal-
culated to unlawfully interfere, on the other hand, a num-
ber of factors must be considered. These include the dura-
tion of the observation, the frequency and timing of the
observation, the proximity of the observer to the union ac-
tivity being conducted, the likelihood or actuality of tres-
passory actions by nonemployees engaged in the union ac-
tivity, and the reasonableness of any perception on the part
of the employer of any safety risks to employees or cus-
tomers associated with the conduct of the union activity.
Additional factors include the existence of demonstrated
union animus on the part of the employer, the commission
of other acts to interfere with the activity being conducted,
and the employer observer’s departure from customary or
normal practice represented by his presence in the imme-
diate vicinity of the union activity. Although each of the
foregoing factors are significant, in the final analysis, all
the circumstances surrounding the observation must be
considered and evaluated.

Respondent did not violate the Act as alleged in paragraph 5
of the complaint. Simpson testified that in the involved county
handbilling is allowed in the easement off the road up to 15 feet
from the center of the road. The exact width of the road was
not made a matter of record herein. Simpson also testified that
NACCO MATERIALS HANDLING GROUP 1265
the property stake Stewart pointed to was about 3 feet from the
side of the road. Each lane on a public road would have to be
at least 12-feet wide for larger vehicles to safely pass while
traveling in the opposite direction. Consequently, with the
involved two lane road (one lane each way), a stake 3 feet from
the side of the road would mean that the stake was 15 feet from
the center of the road. If the road was wider, the easement
would not extend to the stake. Simpson did not deny Stewart’s
testimony that more than once Stewart had to remind Simpson
to move back off Respondent’s property. When the police
officer arrived at the handbilling site, he referred not only to
this concern of the dispatch but also to an additional concern,
namely, whether traffic was being impeded. The officer di-
rected that at least one vehicle which was parked alongside the
roadway be moved. Also, Simpson testified that he was sure
there could have been cars backed up on the roadway when the
occupants of the second-shift cars were handbilled as they came
in. This one-time observation by Respondent lasted about 40
minutes and if it occurred on August 26, 1997, as alleged by
Stewart, it occurred 1 day before the Union filed its petition for
an election. It appears that the only time Stewart went among
the handbillers was when he conversed with Simpson and when
an exiting employee stopped to talk with the handbillers and the
drivers held up behind this driver became impatient. In that
instance Stewart’s activities were limited to stepping out onto
the driveway and motioning drivers to go around the stopped
car. There is no evidence that Respondent in any way noted
which of its employees accepted or rejected union handbills.
Nor did Stewart attempt to hide his presence from Respon-
dent’s employees. In my opinion Stewart’s actions did not
unlawfully interfere and they were prompted by legitimate
concerns. Accordingly, this allegation of the complaint will be
dismissed.
Paragraph 6 of the complaint alleges that about September
19 Respondent suspended and about September 24 discharged
its employees Poff and Rowlett because they formed, joined or
assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities. On
brief, counsel for the General Counsel contends Poff was
known by Respondent to be an active union supporter; that if
Respondent did not have prior knowledge of Rowlett’s union
support it certainly had such knowledge when it decided to
discharge him; that the timing of the discharges, just 2 weeks
before the scheduled election, also supports a prima facie case
that Respondent’s actions were unlawfully motivated; that the
evidence supports a finding that these discharges were inconsis-
tent with Respondent’s usual approach to disciplinary problems
in that there had been very few discharges in this large work
force; that the only examples Respondent could give of other
employees who had been fired for a first offense involved em-
ployees caught stealing materials, falsifying time records,
sneaking out of the plant during worktime, and engaging in
sexual activity during worktime; that the Bowling incident not
only occurred after the Poff’s and Rowlett’s discharges and
could have been approached by Respondent in terms of bolster-
ing its defense but that incident is distinguishable since it in-
volved an injury in the plant and a trip to the hospital; that other
employees who were caught grinding profanity into Respon-
dent’s work product, leaving the plant during worktime for
about 50 minutes, threatening another employee, leaving their
work area and having low production, and leaving early for
lunch were given verbal warnings or counselings; that the unre-
liable, contradictory, and shifting testimony of Stewart reveals
the pretextual nature of the reasons given for the discharge of
Poff and Rowlett; that Stewart’s blatant dissembling regarding
being dumbfounded on September 22 reveals not only Stew-
art’s lack of credibility but it also indicates Respondent’s will-
ingness to fabricate, twist, and distort the events here to avoid
responsibility for these unlawful discharges; that another indi-
cation of the pretextual nature of the proffered reasons for the
discharges is Respondent’s eagerness to deny any consideration
or attention to the fact that the incident involved a “Vote Yes”
sign; that a completely neutral witness, Sesta, recalled quite
clearly that Plant Manager Gray, contrary to his denial, told her
the incident involved the parading of a goose with some sort of
union insignia around the plant; that Gray’s mention of a union
sign to a representative of the Humane Society who would only
be interested in the welfare of the goose indicates just how
important Gray regarded this fact; that the reasons for the dis-
charges shifted from Holt indicating it was for stealing time to
Stewart indicating on (a) Rowlett’s unemployment form that it
was for not meeting adult expectations, posing a safety hazard
to himself and other employees and unauthorized activity in-
stead of work, and (b) Poff’s unemployment form that it was
for misconduct associated with bringing a Federally protected
species into the plant/manufacturing area and her behavior
which disrupted production activities of plant, as well as, en-
dangering the safety of her coworkers and the animal, to insub-
ordination for refusing to immediately follow Chaney’s direc-
tive to turn the goose loose; that the shifting reasons are another
indication of pretext; that the photo introduced by Respondent
as Exhibit 4 is not dispositive of anything; that curiously Re-
spondent failed to introduce any other photos showing the
goose even though the testimony indicated that such existed;
that the reliability of the time indication on the photo must be
questioned since the witness responsible for assuring the accu-
racy of the date/time settings on this equipment is the same
witness who was under the bizarre impression that “the way our
plant is situated’ the sun actually sets “slightly to the north”;
and that Respondent seized on the goose incident, occurring
shortly before the union election, to rid itself of two union sup-
porters and make a point to the remaining employees.
Respondent, on brief, argues that Respondent reasonably be-
lieved that Rowlett and Poff were acting together in “parading”
the Canada goose in that the information gathered by Respon-
dent placed both Poff and Rowlett together with the goose on
two occasions, and together without the goose on a third occa-
sion; that the groundhog incident is distinguishable from the
Canada goose incident since groundhogs are not Federally pro-
tected, Respondent did not have any indication or suspicion that
Sims initiated his encounter with the groundhog, the groundhog
incident occurred outside the plant and as a result it posed no
threat to employees inside the plant, and Respondent has not
commissioned groundhog watercolor prints for its employee
awards and VIP customers as it has prints of Canada geese at
the pond; that Respondent’s decision to terminate was not mo-
tivated by any union activity Rowlett or Poff may have engaged
in; that despite Poff’s longstanding reputation as a union sup-
porter, her job performance had always been rated favorably by
management; that absent from General Counsel’s case is any
evidence whatsoever that Respondent harbored antiunion ani-
mus against Poff, Rowlett or any other employee; that Respon-
dent’s reasons for discharging Rowlett and Poff were legitimate
in that there was a work disruption; that while there may be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
lulls because Poff’s and Rowlett’s job duties were dependent on
the needs of others, it is clear from the testimony of other em-
ployees that production work was being carried on and, there-
fore, there would have been work for Rowlett and Poff to per-
form; that the misconduct posed a threat to the Canada goose in
that expert testimony established that the interior of the plant
would have been a dangerous place for the bird and that the
string placed by Poff posed a special threat to the goose be-
cause it could have led to serious injury or even death had it
escaped or been set free with the string around its neck; that the
misconduct of Rowlett and Poff caused a complaint (anony-
mous) to be made to the Humane Society which could have
resulted in significant negative publicity at the least or possibly
even government intervention; that the misconduct posed a
safety threat to employees; that the misconduct of Rowlett and
Poff included gross disrespect to coworkers and insubordina-
tion to a leadperson; that both Rowlett and Poff refused to co-
operate in a legitimate and reasonable Company investigation
into the incident; that Respondent has enforced its adult expec-
tations policy consistently and it has consistently applied the
discharge penalty when warranted to “first-offense” employee
misconduct;45 that the General Counsel’s attempts to demon-
strate disparate treatment are unavailing;46 that Rowlett and
Poff were not guilty of merely wasting time in that the time
involved was excessive—1 hour or more; that when repeatedly
asked to cease this misconduct, Rowlett and Poff not only per-
sisted in it but became hostile with King and Chaney at the
mere suggestion they were doing anything wrong; and that Poff
and Rowlett were penalized for “their prolonged, intentional
misconduct, insubordination, and refusal to cooperate.” (R. Br.
41, emphasis in original.)
In my opinion, Respondent unlawfully suspended and dis-
charged Poff and Rowlett.

45 Respondent indicates that Parker, Bradley, and Dickerson were
forced to leave Respondent’s employment after they were observed
leaving work prior to the end of their shift, Beach was terminated after
he was caught fishing at Respondent’s pond during work hours, two
employees were forced to leave Respondent’s employment after they
were observed away from their work areas engaged in sexual activity,
Bowling was terminated for engaging in a water fight in the plant, and
other employees have been fired for stealing and falsifying timecards.
46 Respondent submits that Cashin apologized for leaving his work
station early for dinner 2 days in a row and GC Exh. 13 represents a
significant increase over earlier counseling of Cashin in that the possi-
bility of termination was brought up because of the Cashin’s troubling
pattern of behavior, that the General Counsel’s attempts to equate
Murray’s sporadic accidents with the intentional misconduct of Poff
and Rowlett deserves no further comment other than to indicate that
Respondent’s counseling of Murray under the circumstances was com-
pletely appropriate that Gray exercised his discretion and did not termi-
nate Parker for the grind of a profanity into a part of one of Respon-
dent’s forklifts because he admitted his mistake and apologized; that
Poff and Towlett took no ownership of their mistake, and “their refusal
to cooperate with the Company’s investigation was tantamount to a
challenge to Respondent’s right to regulate the workplace” (R. Br. at
40); that the conduct of Poff and Rowlett went considerably beyond the
mere time wasting of Bullens; that Payne was involved in an accident;
that the utterance of a vague threat by McKeehen to Adams was the
type of routine incident which occurs everywhere and clearly was ad-
dressed in an appropriate manner by Respondent; and that none of these
instances amount to evidence of disparate treatment or evidence that
Respondent approached the investigation and subsequent termination of
Poff and Rowlett with a mindset intending to rid the plant of union
supporters.
The following appears at page 18 in Respondent’s brief:

Rowlett and Poff both testified that when leadman
James Chaney approached them in the wheelabrator room,
the goose had long since been set free. However, the pho-
tographic evidence from Respondent’s security camera,
Resp. Exhs 4 and 9, refutes that sequence of events and
firmly establishes that the goose was still in their posses-
sion at the time that Chaney approached.
Poff, Rowlett, and Chaney all agree that the Poff-
Chaney conversation depicted in Respondent’s Exhibit 9
occurred after Chaney’s initial approach to the two em-
ployees in the wheelabrator room. Respondent Exhibit 4
demonstrates that 5 minutes after the Poff-Chaney conver-
sation outside the wheelabrator room (and after the initial
conversation inside the wheelabrator room), Rowlett was
still in possession of the goose inside the plant. [Emphasis
in original.]

I believe that Respondent’s Exhibits 4 and 9 are fabricated evi-
dence in that they do not portray what actually occurred and when
it occurred on the evening of September 19. The numbers on the
photographs indicating the time and date can be manipulated so
that while they may be represented to be factual, they are not.47
What cannot be manipulated is the sun. It has been written that one
picture is worth one thousand words.48 When someone is willing
to provide two pictures of the same background taken at two dif-
ferent times in the same day, it could be said that a comparison of
those pictures, depending on the circumstances, may speak vol-
umes.
For many, many years man has been aware of the fact that
the light generated by the sun can be used to tell time. The
Babylonians used sundials four thousand years ago. While the
sundial nowadays sees little use other than as a lawn ornament,
the principal behind its use will always be valid. When light
shines on one side of a nontransparent, nontranslucent object it
casts a shadow on the unlighted side of the object. The direc-
tion of the sun’s rays dictates the direction of the shadow.
As noted above, both McKeon and Stewart testified collec-
tively in terms of the light from outside the plant in the pictures
received as Respondent’s Exhibits 4 and 9 as coming from the
sun. When asked twice if the sun was still up in late September
at 7:03 and 7:08 p.m. in Berea McKeon testified that it was.
When asked if Respondent had lighting outside the involved
plant door McKeon testified that it did. When then questioned
about the fact that the remaining sunlight at 7 p.m. in late Sep-
tember in Berea would be on the western side of the plant,
McKeon testified that “the way our plant is situated, the sun is
actually, as it sits, is actually slightly to the north.” As noted
above, Stewart, in testifying about Respondent’s Exhibit 9,
testified that “the sunlight is coming through very brightly.”
Since these pictures were allegedly taken 5 minutes apart, what
appears to be “sunlight . . . coming through very brightly” in
one of the pictures should be “sunlight coming . . . through very
brightly” in the other, taking into consideration that there is a
brightness reflected in both of these pictures.
Interestingly, Chaney was not asked by Attorney Barrett to
testify that Respondent’s Exhibit 9 accurately depicted him
47 Here, in my opinion, the numbers have been manipulated.
48 As pointed out in the 60th edition of Bartlett’s Familiar Quota-
tions, the quote was intentionally misattributed as a “Chinese proverb”
By Fred Bernard in 1927 so that people would take the statement seri-
ously.
NACCO MATERIALS HANDLING GROUP 1267
speaking with Poff on the evening of September 19. While the
photograph had already been received in evidence through
sponsoring witness McKeon, Chaney, not McKeon, appears in
the photograph.50 One would have expected additional authen-
tication51 by the testimony of Chaney that the photograph is a
correct representation of the persons, time (even though testi-
fied to by McKeon already), and object or conditions sought to
be described.52 Rather, as noted above, the questions and an-
swers are as follows:

50 The following, which involves an exhibit sponsored by Stewart
and which demonstrates that Barrett was full aware of the correct ap-
proach, is found in Tr. 583.
BY MR. BARRETT:
Q. Okay. Mr. Stewart, does Respondent 22 accurately reflect
the property and plant layout of the NACCO plant in Berea?
A. Yes, sir.
51 Barrett elicited the following testimony, Tr. 341 and 342, from
McKeon:
Q. And are the dates and times on these photographs accu-
rate?
A. The date and the time on this photograph is accurate.
Q. Okay. And—
JUDGE WEST: Plural, photographs
THE WITNESS: Photographs.
JUDGE WEST: Thank you.
THE WITNESS: Yes both.
DIRECT EXAMINATION (Cont’d)
BY MR. BARRETT:
Q. Okay. And the time that reads that’s—its construed in
military time. What are—in layman’s terms, what time does that
express?
A. That is seven-o-three and seven-o-eight p.m.
52 While Rowlett and Poff were asked about R. Exhs. 4 and 9, re-
spectively, the significance of the numbers at the top of the photographs
was not explained to them. Rowlett testified at Tr. 50 and 51 as fol-
lows:
BY MR BARRETT:
. . . .
Q. Mr. Rowlett, I’m handing you what I’ve had marked for
identification as Respondent’s Exhibit 4. I’d like you to take a
close look at that.
(Pause)
Q. What this is, is it’s a picture taken by a security camera,
that’s inside the building, that’s aimed at that back bay door.
A. Yeah.
Q. Is that part of your work area back there?
A. Well at the back door, yeah.
Q. Okay do you recognize anything in that picture?
A. The only thing I can make out is the forklift setting there.
Q. Do you see the gentlemen just to the–
A. I—
Q. —left side of the light?
A. I see somebody standing there, yeah.
Q. Does that look like you?
A. Well it—it’s a possibility.
Q. Do you see the object that’s sticking out from this man’s
body there?
A. I see that, yes.
Q. Do you think that might be you carrying the goose back?
A. Uh—possibility.
Q. Do you think it’s a strong possibility?
A. Well no—no—no plainer than you can see, how can you
tell what it is? I mean I ain’t trying to say it ain’t me carrying it.
Q. It could be, couldn’t it?
A. Well, it’s pos—possibility.
Q. As far as you know, there was no one else in the plant that
night carrying a goose around, right?
BY MR. BARRETT:
Q. Mr. Chaney, I’m handing you what’s in evidence as
Respondent’s Exhibit 9, if you’ll take a moment and look
at that.
(Witness handed document)
A. (Witness complies.)
Q. Is that—do you recognize anyone in that photo-
graph?
A. That’s me standing there.
Q. Okay. And, is that the location in the plant where
this conversation with Ms. Poff took place?
A. Yes. [Emphasis added.]

For my purposes, at least three things are noteworthy about
the two involved photographs (R. Exhs. 4 and 9), namely, (1)
the brightness of the light emanating from what McKeon and
Stewart testified is the sun, (2) the direction of the shadow be-
hind (the indoor side of the door) the left doorpost or jamb of
the door which goes outside where there is no roof or walls
(outdoors),53 and (3) the direction of the movement in the two
involved photographs of the shadow behind (the indoor side of
the door) the left doorpost or jamb of the door which goes out-
doors.
Regarding the brightness of the sun, as noted above, more
than once McKeon was asked if the sun was still up at the in-
volved time in late September. Both times he responded af-

A. Well, no.
Q. You didn’t see any other employee—
A. No.
Q. —carrying a Canadian Goose around—
A. No.
Q. —did you?
A. No.
Poff testified at Tr. 248 and 249 as follows:
BY MR. BARRETT:
Q. I’m showing you what I’ve had marked for identification
as Respondent’s Exhibit 9, Ms. Poff, and ask you to take a look at
that for a moment. What this is, is a photograph from a security
camera that’s aimed at that back bay door. Do you see Mr.
Chaney in the photograph?
(Witness handed document.)
A. Yes.
Q. Okay. Would that be you on the forklift talking to him? Is
that about where the conversation took place that you’re referring
to?
MS. JACOBSON: Could we break that question down,
Your Honor?
CROSS-EXAMINATION (Cont’d)
BY MR. BARRETT:
Q. Is that you in the forklift, do you believe?
A. I’m not sure.
Q. When you’ve had this conversation with Mr. Chaney, were
you riding your forklift?
A. Yes.
Q. Okay. Is this the part of the building that you were in when
the conversation occurred?
A. It could have been. It was as—as we was coming in the
door.
Q. Okay. Is the wheelabrator area anywhere near here?
A. Yes.
Q. Okay.
A. It’s to the right.
53 As noted above, sometimes “outside” is used to refer to the whee-
labrator area of the plant because while the area does have a roof and
walls, it is outside the main plant structure.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
firmatively. Again, as noted above, Stewart testified that, “the
sunlight is coming through very brightly.” One would expect
that at Berea in late September at 7:03 and 7:08 p.m. the sun
would be about to go over the western horizon if it had not
already set. For my purposes, I need only rely on an irrefutable
fact, namely, if the sun had not set at he times involved here, its
rays would be coming from the west. That being the case, one
need only look at the pertinent shadows in the two involved
photographs to determine whether Respondent’s Exhibits 4 and
9 are fabricated evidence. As shown by Respondent’s Exhibit
22, the doorway (to the outdoors) in question faces approxi-
mately 330 degrees north by northwest. As noted above, the
involved camera is inside the plant, it is on the ceiling, it faces
the involved door, and it photographs the inside of the plant just
inside the door, the door and that portion of the outdoors
framed by the involved door (when it is open if indeed it can be
closed). Since the sun rises in the east and sets in the west, this
would mean that, to the extent the sun was still shining in this
area at the involved times, its rays would be coming from the
left side of the two involved photographs. With the sun’s rays
coming from the left side of the photographs, the shadow run-
ning off the indoor side of the outermost left doorpost or jamb
would extend from the doorpost to the right (i.e.), and very late
in the day the shadow would go from the involved left doorpost
across the floor into the area just behind (on the indoor side) the
right doorpost of the outermost door. In Respondent’s Exhibit
9 (the alleged 7:03 p.m. picture) the shadow extending from the
involved left doorpost runs in the wrong direction. Instead of
running off the doorpost to the right (i.e.), it extends from the
involved doorpost to the left (i.e.). This is physically impossi-
ble if the picture was taken at the time it was alleged to have
been taken and the shadow was caused by the sun’s rays. Even
more ridiculous is the fact that Respondent’s Exhibit 4 (the
alleged 7:08 p.m. picture) shows the shadow behind (on the
indoor side) the involved left doorpost moving even further to
the left (i.e.). To accomplish this on the same day with the
sun’s rays would mean that the sun moves from the west to the
east. It does not. If Respondent’s Exhibits 4 and 9 were taken
on the same day utilizing only the sun’s rays, (a) Respondent’s
Exhibit 4 (the alleged 7:08 p.m. picture) was taken earlier in the
day then Respondent’s Exhibit 9 (the alleged 7:03 p.m. pic-
ture), and (b) both appear to have been taken about midday.
Obviously Respondent’s Exhibits 4 and 9 will not be given any
weight whatsoever.
As set forth by the National Labor Relations Board (the
Board) in Fluor Daniel, Inc., 304 NLRB 970 (1991):

In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982),4 the Board set forth its causation test for cases al-
leging violations of the Act turning on employer motiva-
tion. First the General Counsel must make a prima facie
showing sufficient to support the inference that protected
conduct was a “motivating factor” in the employer’s deci-
sion. Once accomplished, the burden then shifts to the
employer to demonstrate that the same action would have
taken place notwithstanding the protected conduct. It is
also well settled, however, that when a respondent’s stated
motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the respondent desires to conceal.5 The
motive may be inferred from the total circumstances
proved. Under certain circumstances the Board will infer
animus in the absence of direct evidence.6 That finding
may be inferred from the record as a whole.7
__________
4 Approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
5 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470
(9th Cir. 1966).
6 Association Hospital Del Maestro, 291 NLRB 198, 204
(1988); White-Evans Service Co., 285 NLRB 81, 82 (1987).
7 ACTIV Industries, 277 NLRB 356, 374 (1985); Heath Inter-
national, 196 NLRB 318, 319 (1972).

In order to establish a prima facie violation of Section 8(a)(1) and
(3) of the Act, the General Counsel must establish union activity,
employer knowledge, animus and adverse action taken against
those involved or suspected of involvement which has the effect of
encouraging or discouraging union activity. Inferences of animus
and discriminatory motivation may be warranted under all the
circumstances of a case, even without direct evidence. Evidence of
false reasons given in defense may support such inferences.
To determine what happened and the underlying motivation
it will be necessary to make findings with respect to the credi-
bility of certain witnesses. In making credibility resolutions
one should never fail to keep in mind the words of Chief Judge
L. Hand in NLRB v. Universal Camera Corp., 170 F.2d 749,
754 (2d Cir. 1950), that:
[I]t is no reason for refusing to accept everything that a wit-
ness says, because you do not believe all of it; nothing is more
common in all kinds of judicial decisions than to believe some
and not all.
Counsel for the General Counsel has established that Poff
and Rowlett engaged in union activity and Respondent knew
about it. Poff and Rowlett both engaged in union activity be-
fore Respondent decided to discharge them. The statements
both gave or made to Stewart on September 22 indicating their
refusal to cooperate was due to their union activity are suffi-
cient to support such a finding with regard to their discharges.
With respect to their suspensions on September 19, it cannot
reasonably be disputed that Respondent was aware of Poff’s
union activity. Her name was included in the letter, General
Counsel’s Exhibit 7, the Union sent to Respondent regarding
which employees were on the organizing committee. Regard-
ing Respondent’s knowledge of Rowlett’s union activities be-
fore he was suspended on September 19, it is noted that before
Rowlett was suspended Respondent knew that Rowlett drove a
goose around the plant on his forklift truck and the goose had a
prounion sign hanging around its neck. King told Chaney
about the prounion sign on the goose. Chaney asked Poff and
Rowlett about the prounion sign on the goose. Chaney then
told Jones about the prounion sign on the goose. When asked
by Jones if he had seen what Poff and Rowlett had done King
told Jones that he, King, “had seen them make the [prounion]
sign for the goose.” (Emphasis added.) Respondent’s Exhibit
14.54 Jones subsequently told Poff and Rowlett on Friday Sep-
tember 19 to go home before the end of the shift and report to
Stewart on Monday September 22. Jones’ written statement
dated “9–19–97,” Respondent’s Exhibit 18, indicates that “I
MADE THE DECISION TO SEND PAM AND JAMES
HOME AND REPORT BACK TO PERSONNAL [sic]
MONDAY.” According to this written statement of Jones, he

54 While King testified that he did not say this, his written statement
of “9–19–97” speaks for itself.
NACCO MATERIALS HANDLING GROUP 1269
was indicating that he and not someone else, made the decision
to suspend Poff and Rowlett. Other evidence of record indi-
cates that Jones, who is the production supervisor on second
shift, engaged in disciplinary action regarding other employees.
There was no indication on the record that he did not have the
authority to take such action. Additionally, the September 19
written statement of Jones makes no mention whatsoever of
Jones discussing the matter with Pool on September 19 and
Pool being the one who decided to send Poff and Rowlett
home.55 Pool was not a credible witness with respect to his role
on September 19. While, on the one hand, testifying that Jones
told him about a sign on the goose but never told him about the
content of the sign, Pool testified, on the other hand, that on
September 19 during his telephone conversation with Jones he,
Pool, was under the impression that Poff and Rowlett “ignored
the request to stop parading this animal around the plant” and
“there seemed to be an apparent lack of response to a request
by the lead person to stop.” Chaney testified that he did not
remain in the wheelabrator room to make sure that the goose
did leave the plant. That being the case, it was not explained
how Chaney would have been in a position to know on Sep-
tember 19 whether the goose was taken or ushered or just
walked out of the plant. If Chaney did not know, how would
Chaney have been in a position to tell Jones? If Chaney did not
tell Jones, how would Jones have been in a position to relay this
information to Pool? Chaney did not testify that on September
19, after he spoke with Rowlett, Rowlett disregarded his direc-
tive to turn the goose loose. Chaney did not testify that he told
Jones on September 19 that Rowlett disregarded his directive to
turn the goose loose. Chaney’s “9/19/97” written statement
similarly makes no mention of Rowlett disregarding Chaney’s
directive to turn the goose loose. And Stewart’s notes of his
September 22 interview of Jones, Respondent’s Exhibit 19(d),
make no mention of Rowlett and Poff disregarding Chaney’s
directive. Rowlett did not disregard a directive from Chaney to
turn the goose loose. I credit the testimony of Poff and Rowlett
that the goose had already left the plant when Chaney came into
the wheelabrator room. Only three people were present at this
meeting. Two of the three testified that the goose was not pre-
sent at the time. The third, Chaney, was not a credible witness
in view of, among other things, the false portions of his Sep-
tember 19, typed/written statement, his testimony about Poff
admitting that she put a badge on the goose and his lack of
candor regarding Respondent’s Exhibit 9.56

55 Stewart’s notes of his interview of Jones, R. Exh. 19(d), refer to
Jones telephoning Pool and Pool telling Jones to tell Poff and Rowlett
to go home and report to human resources on Monday. At the same
time Stewart’s notes make no mention of the prounion sign worn by the
goose even though Jones’ written statement, which he gave to Stewart
on September 22 refers to a “A STRING AROUND [goose’s] NECK,
AND . . . A UNION BADGE ON THE STRING . . . .”
56 As noted above, Chaney’s typed/written September 19 statement
indicates, “I asked them if they had put a union badge on the goose and
Pam said yes.” Chaney also made this same assertion while testifying
here. Rowlett testified that Poff explained to Chaney that she did not
put a badge on the goose. And Poff testified that when Chaney accused
her of putting a badge on the goose she told him she did not. Stewart
conceded that during his September 22 interview with Poff she indi-
cated that she wanted to file a harassment claim against Chaney be-
cause he lied about a badge on the goose. Stewart did not include this in
the notes of the interview he sponsored here, Resp. Exh. 19(f). On
cross-examination he claimed this was written on another sheet or
sheets but they were not offered in evidence here. To believe Chaney
Accordingly, I do not credit that portion of Jones’ written
statement which refers to Chaney asking Poff and Rowlett to
release “ONE OF THE DUCKS.”
Jones testified that he did not see a union insignia on Row-
lett’s cap and on September 19, he did not know Rowlett was
engaged in union activities. Rowlett was only pretty sure that
he still had the union button on his cap when Jones came to his
workstation on the night of September 19, 1997. Nonetheless,
one must wonder whether there is that much of a difference, in
terms of union activity, in wearing a cap with a union insignia
on it and carrying a goose around with a prounion sign on it.
Certainly the latter will get a lot more attention. While Stewart
testified that he did not take Rowlett’s parading of a goose in
the plant with a vote yes sign around its neck to be a showing
of support for the Union, one must take into consideration
Stewart’s interest. However inappropriate the use of the goose
was, Rowlett was engaging in union activity on September 19
when he drove the goose around the plant on his forklift truck
with the goose wearing a vote yes sign.
For the reasons given below, it has been demonstrated that
there was antiunion animus on the part of Respondent.
Would Respondent have discharged Poff and Rowlett not-
withstanding their protected conduct? Stewart testified that
Poff and Rowlett were discharged for misconduct in that “they
were transferring the goose throughout the building, exposing
themselves and other employees to personal injury, they were
not engaged in productive activity and they were detracting
from other employees engaged in work.” In November 1997
Stewart wrote, General Counsel’s Exhibit 22, that Poff “was
discharged for misconduct associated with bringing a Federally
protected species (goose) into the plant/manufacturing area and
her behavior which disrupted production activities of plant, as
well as, endangering the safety of her coworkers and the ani-
mal.” In April 1998 Stewart wrote, General Counsel’s Exhibit
21, Rowlett “was released . . . for behavior that did not meet
adult expectations, posed a safety hazard to the individual as
well as other employees, and unauthorized activity instead of
work individual was being paid to perform.” And at page 41 of
its brief Respondent indicates that Rowlett and Poff were dis-
charged “for their prolonged, intentional misconduct, insubor-
dination, and refusal to cooperate.” (Emphases in original.)
Respondent, allegedly relying in part on Respondent’s Ex-
hibit 457 and certain employees who indicated that sometime
after their 6 p.m. break they saw the goose in the plant, alleges
that the activity with the goose went on for almost one hour.
Rowlett testified that on September 19 during his break be-
tween 7 and 7:30 p.m. he picked up a goose that came into his
work area; that 10 to 15 minutes elapsed from the time he
picked the goose up to the time it walked back out the door;
that Chaney came to his work station about 10 minutes after the

one would have to discredit the testimony of Poff and Rowlett on this
point and then try to explain, if Poff conceded this point on September
19 why she would take such a strong stand going the opposite way on
September 22. Poff and Rowlett were credible witnesses. Chaney’s
typed/written statement and his testimony on this point are not credited.
57 Interestingly Chaney’s “9/19/97” statement begins “at approxi-
mately 7:30 p.m. . . . King approached me . . . .” Obviously King would
have had to tell Chaney before Chaney spoke to Poff and Rowlett. The
time set forth in the picture received as R. Exh. 9 could not be correct if
this part of Chaney’s statement is correct. For the reason specified
above, this exhibit is not being given any weight. It is noted that when
he testified herein Chaney expanded the time to about 7 to 7:30 p.m.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
goose went outside; and that he believed he released the goose
about 7:10 or 7:15 p.m. Poff testified that she saw Rowlett
come down the aisle with the goose at 7:10 p.m.; and that
Chaney met with her and Rowlett at 7:30 p.m.58 and the goose
was not there at the time. It appears that Rowlett picked the
goose up shortly before 7:10 p.m. and released it around 7:20
p.m. If Supervisor Willis can take 15 to 20 minutes to show
Mize a fishing rod during worktime, then why is Respondent
making an issue over 10 minutes? Respondent, however, did
not have the benefit of Poff’s and Rowlett’s perspective of the
time line in September 1997. With respect to the time line of
the goose incident, Respondent had written statements from (1)
King indicating between “6:15–7:15 pm [told to] see . . .
[goose] . . . on . . . Rowlett[‘s] forklift”; that he then spoke to
Chaney; and that 20 minutes later Jones asked him about the
incident, (2) Chaney indicating that “[o]n 9/19/97 at approxi-
mately 7:30 p.m. . . . King approached me,” and (3) Jones indi-
cating that at 7:30 PM THIS EVENING . . . CHANEY CAME
TO ME . . . .” Also Stewart drafted notes of his interviews with
(1) Hensley, who indicated that after he came back from 6 p.m.
break he saw Rowlett, the goose and the sign around the
goose’s neck, (2) Gilbert, who indicated he first saw the goose
with Rowlett on his forklift right after he returned from second
break and he spoke with Poff and Rowlett for a couple of min-
utes, (3) Johnston who indicated that he observed Rowlett
sometime after the 6 p.m. break, (4) Witt, who indicated that
after the 6 p.m. break he saw Rowlett on a lift truck with a
goose, (5) Jones, who indicated he sent Poff and Rowlett home
at 7:55 p.m. and (6) King who indicated shortly after the 6 p.m.
break, around 6:15 p.m. he saw Rowlett with goose, and he
estimated that they paraded the goose around the plant for ap-
proximately 5 minutes. (Emphasis added.)
Even without the participation of Poff and Rowlett in the in-
vestigation, there was no reasonable basis for concluding that
the incident continued for a prolonged period of time.
Chaney’s typed statement of September 19, 1997, indicates that
at approximately 7:30 p.m. King approached him about the
incident and he then spoke with Poff and Rowlett. King’s writ-
ten statement of September 19, 1997, indicates that when he
saw Rowlett with the goose it could have been 7:15 p.m.59 and
he then spoke to Hensley and Chaney. Jones written statement
dated September 19 refers to Chaney coming to him at 7:30
p.m. Based solely on the statements which were drafted by
King, Chaney and Jones on September 19 Respondent could
have concluded that the incident occurred over a period of at
most 15 minutes between 7:15 and 7:30 p.m.60 Chaney’s typed

58 As noted above, Chaney’s “9/19/97” statement indicates that King
approached him at approximately 7:30 p.m. and he, Chaney, then went
to the wheelabrator room.
59 King’s testimony that when he indicated in his statement that it
occurred between 6:15 and 7:15 p.m. he was referring to the whole
incident from start to finish that evening is not credited. As set forth
above, the pertinent portion of the statement reads: “Between the hours
of 6:15–7:15 p.m. Bobby Witt said for me to come and see the horn that
was on James Rowlette[’s] forklift. Then as I proceeded toward his
forklift I noticed that he was holding a goose in his lap.” The time
period specified refers to when Witt told him about the goose and when
he, King, saw the goose. Like certain other of Respondent’s witnesses,
when he testified here he attempted to modify a prior statement so that
it would be read in a light more favorable to Respondent.
60 As noted above, the two photographs, R. Exhs. 4 and 9, one of
which contradicts Chaney’s September 19, 1997 statements as far as his
7:30 p.m. estimate is concerned, are not given any weight.
and written statement of September 19 refers to “approximately
7:30 P.M.” and there is no evidence of record that he changed
this time before Poff and Rowlett were discharged. Instead
Respondent chose to take the position that the incident began
shortly after 6 p.m. and, as allegedly shown by the two photo-
graphs, Respondent’s Exhibits 4 and 9, it continued until after 7
p.m. As noted above, it is my opinion that the two photographs
are fabricated evidence. In addition to the above-described
September 19 statements, Stewart met with five employees, not
including Poff and Rowlett. Stewart drafted notes of his inter-
views with these five employees. And Stewart had the employ-
ees sign the notes. None of the notes indicate that Rowlett had
the goose in these employees’ presence for a prolonged period
of time. In fact a fair reading of the notes of these interviews
indicates that Rowlett and the goose were in the presence of the
employees for just a few minutes. As King indicated during his
interview, Rowlett paraded the goose around the plant for ap-
proximately 5 minutes. Stewart’s notes also indicate that with
the exception of King, the employees returned to work within
moments of seeing Rowlett and the goose. It was not asserted
by any employee that Rowlett interfered with any of their work.
The momentary stoppages were voluntary on the employees’
parts. And King’s taking the time to speak to Chaney was a
voluntary act on his part. In introducing Respondent’s Exhibits
4 and 9 Respondent chose a time line which was not in accord
with the September 19 statement it had from Chaney. As indi-
cated by one of Respondent’s own witnesses, Rowlett paraded
the goose around the plant for approximately 5 minutes. This is
not prolonged.
And with respect to breaktime on September 19 Chaney tes-
tified that as lead man he took his break at the same time as the
people that he had working under him. Rowlett, who worked
under Chaney, testified that he took his break between 7 and
7:30 p.m. Chaney testified that he came off his break between
7 and 7:30 p.m. and that King worked in an area that he,
Chaney, did not supervise.
Could Rowlett, who was the only one who drove the goose
around the plant, have been engaged in productive activity at
that time? Rowlett’s wheelabrator job was dependent on other
employees producing items so that he could use the wheelabra-
tor to prepare the items to be painted. King tried to leave the
impression that there was work for Rowlett in that he, King,
and the other welders were still going on until 8:45 p.m. on
September 19. However, Jones, who is the production supervi-
sor on the second shift testified that the items King was welding
on September 19 would not have gone to Rowlett’s wheelabra-
tor to be further processed. Chaney testified that he did not
have to speak to anyone about not getting their work done and
the people in his area of responsibility, which included Rowlett,
all got their work done that night. Employee Owens testified
that there is more downtime on the second-shift overtime than
there is on the first shift. And employee Mize testified that
when he worked overtime on the second shift he did have peri-
ods of an hour or two with no work to do at the end of his shift.
Rowlett’s testimony that he ran out of work that evening at
about 5 to 5:30 p.m. is credited. Poff’s testimony that Rowlett
told her that evening that he did not have anything to do and
that she tried to find work for herself and Rowlett is credited.
No credible attempt was made to contradict this testimony of
Rowlett and Poff. With respect to Stewart’s testimony that
Rowlett and Poff were not engaged in productive activity, it
NACCO MATERIALS HANDLING GROUP 1271
appears that this was due to a lack of work that night and not to
the goose.
Was the involved conduct intentional misconduct? What oc-
curred was not an accident; it definitely was done intentionally.
One of the objections to the conduct raised by Respondent is
that Rowlett operated the forklift truck with only one hand.61 A
picture on page 5 of Respondent’s September 1997 Berea
Newsletter shows a driver on a forklift with a knob on the steer-
ing wheel, General Counsel’s Exhibit 4. When such a knob is
used for turning the steering wheel you cannot have two hands
on the wheel or you would defeat the purpose of the knob,
namely to be able to turn the wheel faster then when you use
two hands. The fact that such knobs exist on such equipment
means that Respondent allows, if it does not encourage, the use
of a mechanism which permits the driver to operate the equip-
ment with one hand.
With respect to the involved conduct of Rowlett and Poff,
Gray testified that it was his decision to terminate Poff and
Rowlett; that he was the only person at the plant who could
authorize the termination of an employee; that the duration of
the involved activity of Poff and Rowlett was entirely too long
even if it was a practical joke;62 that neither Poff nor Rowlett
ever said to him “Mr. Gray we were just having fun”; and that
he read Stewart’s notes of his September 22, 1997, interview of
Jones, Respondent’s Exhibit 19(d). When counsel for the Gen-
eral Counsel asked Gray if he read that part of the September
22, 1997 notes of the Jones interview where Jones indicated
that on September 19, 1997, Rowlett said he “didn’t mean any-
thing by it, I was just having fun.” Gray asked, at that point in
the hearing, to see the notes. After reading the notes, Gray
testified, as here pertinent, “[y]es, I remember it now.” So the
goose incident did not involve almost 1 hour63 and Rowlett
indirectly told Gray that he, Rowlett, was just having fun.
Nonetheless Rowlett and Poff were terminated.
With respect to Respondent’s assertion that Poff and Rowlett
were discharged for, among other things, insubordination, it is
noted that Stewart did not write this 15-letter word when he
gave the reasons for the terminations of Rowlett and Poff on
their unemployment insurance claims forms, General Counsel’s
Exhibits 21 and 22, respectively. Respondent cannot argue that
there was not enough room in the area provided for the “Em-
ployer’s Statement” on both forms for Respondent left two and
one quarter lines blank on Rowlett’s form while it averaged
about 10 words per line on the three and three quarter lines it
used. Respondent had room to write over 20 additional words
on Rowlett’s form. Yet insubordination is not specifically

61 As set for a Tr. 40, Barrett asked Rowlett the following questions
on cross-examination:
Q. And you know that you’re supposed to drive a forklift with
two hands, right? Isn’t that how they teach you?
A. Well I—there was nobody ever taught me anything about
driving with both hands. If that’s the case, why did they have—a
knob on it, that you can only drive with one hand?
Q. They don’t have that anymore, though, do they?
A. I—that truck I had did.
62 As concluded above, in my opinion a fair reading of the state-
ments Respondent had should have led Respondent to conclude that the
involved conduct went on for at most 15 minutes and not the almost 1
hour alleged by Gray.
63 As noted above, according to Rowlett’s testimony, the goose ap-
proached him during his break. It is not clear from his testimony if he
had any breaktime remaining when he picked the goose up and started
driving with it on his forklift.
mentioned on Rowlett’s form. On Poff’s unemployment insur-
ance form Stewart left two and three quarter lines blank and he
averaged nine words per line on the four and one quarter lines
he did use. Stewart could have written 24 additional words in
the space he left blank. In terminating someone for something
other than criminal conduct, “insubordination “ is perhaps one
of the sharpest arrows in an employer’s quiver. Yet while Re-
spondent now claims insubordination, this assertion does not
appear on Rowlett’s or Poff’s above-described unemployment
insurance forms. As concluded above, the goose was gone
when Chaney spoke with Rowlett and Poff in the wheelabrator
room on September 19. For the reasons given above, I do not
credit Pool’s testimony about Rowlett’s and Poff’s lack of re-
sponse to a directive Chaney never gave. I do not credit Pool’s
testimony that insubordination on the part of Rowlett and Poff
was discussed at the September 24 manager’s meeting. Holt
was at this meeting64 and when he subsequently told Owens the
reason for the terminations he cited only stealing time65 which,
as Owens told Holt at the time” even the supervisors also do so,
and kill time, that’s not anything else that any of the rest of us
are not guilty of.” Owens did not testify that Holt told him that
he, Holt, saw pictures which allegedly demonstrate insubordi-
nation or that he, Holt, was told at a managers’ meeting on
September 24 that there were pictures which allegedly demon-
strated insubordination or even that he was told at a managers
meeting on September 24 that Rowlett and Poff were insubor-
dinate. Again we have a member of management indicating at
the time why Poff and Rowlett were terminated and that mem-
ber of management makes no reference whatsoever to insubor-
dination. The goose was already out of the plant when Chaney
entered the wheelabrator room at approximately 7:30 p.m. on
September 19. There could be no insubordination of the type
now alleged by Respondent because there was no need for
Chaney to give the alleged instruction and Rowlett and Poff did
not disobey the instruction which was never given. Addition-
ally, Stewart’s belated attempt, see transcript page 672,66 to
treat what Poff said to Chaney on September 19 as insubordina-
tion was obviously something he thought up while he was testi-
fying here. There is no credible evidence that Respondent fired
Poff and Rowlett for insubordination. Pool, Gray, and Stewart
were not credible witnesses with respect to their testimony
regarding insubordination.
With respect to Respondent’s assertion that one of the rea-
sons Poff and Rowlett were terminated was their refusal to
cooperate in the investigation, as noted above, Jones, who was
with Stewart when he interviewed Poff and Rowlett, testified
that Poff and Rowlett were not discharged because they refused
to answer questions on September 22. While Jones later testi-
fied that he was not involved in the decision to terminate Poff
and Rowlett, it is noted that Pool and Holt, both of whom at-
tended the upper management meeting on September 24 did not
specify this as a reason for Poff’s and Rowlett’s termination;
that when he testified herein Stewart did not specify refusal to
cooperate as a reason for terminating Poff and Rowlett; that
64 Pool placed Holt among those managers in attendance at the meet-
ing where they discussed the appropriate action to be taken which
would be deemed consistent with other actions Respondent had taken.
As Stewart and Gray testified that they did not have the details at the
time of the September 22 managers’ meeting, such a discussion could
only have occurred at the September 24 managers’ meeting.
65 Holt did not testify herein. Owns testimony is credited.
66 Stewart testified: “[I]t could be viewed as insubordination.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
when Stewart specified the reasons for termination on the
above-described unemployment forms of Poff and Rowlett he
did not specifically cite refusal to cooperate as one of the rea-
sons; and that while Gray, who allegedly made the final deci-
sion, testified that Poff’s and Rowlett’s refusal to cooperate
severely hampered the investigation and was disappointing, he
did not specifically indicate that this was one of the reasons
Poff and Rowlett were terminated.67
Poff and Rowlett were treated disparately by Respondent in
that, other than attendance, before Poff’s and Rowlett’s termi-
nations the only thing Gray fired employees for was dishon-
esty68 or having sexual encounters in the plant on worktime.
While Gray attempted to compare the conduct of Poff and
Rowlett to that of the two who had the sexual encounters, it is
obviously, at best, a strained comparison. Poff and Rowlett did
not leave their work areas and hide in a part of the plant where
they thought they would not be discovered. And certainly no
matter how “ridiculous”69 the goose incident was, it did not rise
to the level of having sexual encounters in the plant during
worktime. Consideration of the discipline for the above-
described water fight must take into account the fact that the
incident took pace well after Poff and Rowlett were terminated,
the above-described charge was filed and the complaint herein
was issued. Consequently, Respondent could have fashioned
the discipline to bolster its defense in this proceeding. Addi-
tionally, as noted above, one of the two combatants in the water
fight had to be taken to the hospital which distinguishes the two
situations. Poff had worked for Respondent for 12 years. Row-
lett had worked for Respondent since April 1993. Both had
good work records. Neither had been disciplined previously.
As noted above, Stewart testified that Respondent does not
always fire someone the first time they fail to meet the adult
expectations clause. While the conduct of Poff and Rowlett
should have a consequence, the discipline given to Poff and
Rowlett by Respondent far outweighs what would appear to be
reasonable in terms of the discipline given in the past to other
employees. Respondent has not demonstrated that it would
have discharged Poff and Rowlett notwithstanding their union
activity.
Gray’s attempt to deny that he focused to any extent on the
goose’s message by denying that he told Sesta, who was called
as a witness by Respondent, about the sign the goose was wear-
ing only serves to highlight Respondent’s animus and unlawful
motivation. Sesta, the director of the Madison County Humane
Society, has no interest in the outcome of this case. Her testi-
mony is credited. Gray told her about the union insignia. As
pointed out by the General Counsel on brief, Gray, in testifying
that he was real certain he did not tell Sesta abut the vote yes
sign, lied in order to buttress his claim that he paid no attention

67 It is noted that at Tr. 741 Gray testified as follows:
The disregard and the uncooperative attitude that they took
and they never at one time even said Mr. Gray we were just hav-
ing fun. Let us have another chance. They never asked any of
that. They just decided that they would just not cooperate with us
and it put me at a disadvantage not being able to talk with them
and that was their choice. The decision I made to terminate them,
I thought about what in the world am I going to do with this for
several days, ma’am. And I finally decided that the best thing we
can do is sever our relationship.
68 This would include the pond fishing of Beach for he left the plant
and expected others to cover for him.
69 This is Gray’s description.
to the fact that Poff and Rowlett were supporting the Union in
their respective activities with the goose.
Sesta also testified that on September 25 which was the day
following the discharge of Poff and Rowlett, Gray telephoned
her again70 and this time he indicated that the goose was show-
ing signs of distress and he believed that the goose was injured.
Even after reviewing his notes at the hearing here, Gray never
testified about this telephone call. Instead Gray testified that
the Wildlife people called him on September 30 after one of
Respondent’s employees took an injured goose to her father’s
farm. Sesta did not testify that Gray told her when he tele-
phoned her to tell her about the goose in distress that during
that telephone conversation he told her about an employee tak-
ing the goose to care for it. Sesta was a credible witness. Gray
was not a credible witness. The testimony of Sesta is credited.
Did Gray expect to be able to report an injured goose to the
Humane Society, create a record of a report of an injured goose
and not have anyone indirectly verify the validity of his claim
by attempting to care for the animal? Didn’t Gray anticipate
that the Humane Society for the Wildlife people would want to
pick up the goose which allegedly was distressed? When this
occurred, Gray did not make the goose which allegedly was
distressed available to the Wildlife people.
Gray testified that on Wednesday September 24 (“I want to
think it was Wednesday,” Tr. 717) there was a Canada goose
walking around limping outside the plant, he assumed it was
the same goose, and an employee took the goose to her father’s
farm.71 Gray also testified that he usually leaves the plant
about 5 p.m.; and that sometime after diner on Wednesday
September 24 he made the final decision to terminate Poff and
Rowlett. In other words, according to Gray’s testimony, before
he made the final decision to terminate Poff and Rowlett he,
Gray, was aware that there was an injured goose and he as-
sumed it was the goose Rowlett had on his forklift. Gray at-
tempted to use the Humane Society to bolster Respondent’s
position with respect to the terminations of Poff and Rowlett.
That is why Respondent called Sesta as a witness, and in my
opinion, this plan was formulated before Poff and Rowlett were
terminated. Sesta’s testimony, however, shed some light on the
true nature of the disciplinary action taken against Poff and
Rowlett. Gray did not want to concede that he considered the
vote yes sign and went so far as to tell Sesta during the first
telephone call about the union insignia. Gray was trying to
build a case for termination where such a case did not exist.
Poff and Rowlett were terminated for union activity. Poff and
Rowlett used a goose to promote the Union.
With respect to animus in general on the part of Respondent,
as set forth above, Respondent’s employee handbook, after
acknowledging the right of an employee to join a union, points
out that a union “diminishes the rights of the individual and
deters each employee from realizing his/her full potential” and
“could seriously impair the relationship between the Company
and the employees, and could retard the growth of the Com-
pany and the progress of the employees.” Also Gray testified
herein that before the goose incident he thought Rowlett “was
70 The first time Gray was returning Sesta’s telephone call to the
plant to follow up on an anonymous message left at the Humane Soci-
ety that there was an incident at the plant involving a Canadian goose
and she should look into it.
71 If an employee took the goose Wednesday, September 24, to reha-
bilitate it, why didn’t Gray tell Sesta this when he telephoned her on
Thursday, September 25?
NACCO MATERIALS HANDLING GROUP 1273
just a regular employee doing his job and [I] had no inkling that
he was promoting any type of Union.” It appears that to Gray’s
way of thinking someone who promotes the Union is other than
a regular employee. Perhaps this is why when Owens asked
manager Holt about Poff’s and Rowlett’s termination Holt said
“Jerry, I thought you were a good moral Christian man and to
see you come out against the company really surprised me.”72
In my opinion there is direct evidence of animus. Additionally,
I believe that on the total state of this record an inference of
animus on the part of Respondent against the union activity is
justified. As pointed out in Electronic Data Corp., 305 NLRB
219 (1991), even without direct evidence, the Board may infer
animus from all circumstances. Pretextual reasons support an
inference of an unlawful one. Keller Mfg. Co., 237 NLRB 712
(1978). Terminating Poff and Rowlett during a union cam-
paign 2 weeks before a union election under the circumstances
of this case would tend to discourage union activity. Washing-
ton Nursing Home, 321 NLRB 366 (1996). Respondent has
failed to meet its Wright Line burden by demonstrating that it
would have takes the same action against Poff and Rowlett
absent their union activity. Respondent violated that Act as
alleged in paragraph 6 of the complaint.

72 As indicated above, all Owens did was point out to Holt that eve-
ryone, including supervisors, kills time.
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 Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending and terminating Pamela Poff and James
Rowlett because they formed, joined, or assisted the Union and
engaged in concerted activities and to discourage employees
from engaging in these activities Respondent violated Section
8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
5. Respondent did not otherwise violate the Act in the man-
ner alleged.
REMEDY
Having found that the Respondent unlawfully suspended and
discharged Pamela Poff and James Rowlett, it will be recom-
mended that Respondent be ordered to reinstate them to their
former positions and make them whole for any loss of earnings
and benefits they may have suffered as a result of the Respon-
dent’s unlawful conduct, in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]