Neptco, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 2005

346 N.L.R.B. 18 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 6
18
Neptco, Inc. and Teamsters Local Union 61, affiliated
with International Brotherhood of Teamsters.1
Case 11–CA–18576
December 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 25, 2000, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs, and the Respondent filed an answering
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 as modified below, and to dis-
miss the complaint.
We agree with the judge’s dismissal of allegations that
the Respondent violated Section 8(a)(1) by threatening
employees4 and by prohibiting them from wearing union
insignia. We also agree with the judge’s dismissal of
allegations that the Respondent violated Section 8(a)(3)
and (1) by discharging employees Ken Price and Gordon

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 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.
3 Counsel for the General Counsel has excepted to the judge’s find-
ing that counsel acted unethically by selectively quoting the testimony
of Supervisor Douglas Laws in his posthearing brief. While all attor-
neys appearing before the Board have a duty to truthfully and accu-
rately represent the evidence and the law, we disavow the judge’s find-
ing that counsel for the General Counsel impermissibly quoted the
testimony of Supervisor Laws or that he has engaged in unethical con-
duct. Chairman Battista agrees with the judge that counsel’s conduct
was “regrettable” and “clumsy.” However, the judge did not find that
the conduct was unethical, and the Chairman would also not make that
finding.
4 We agree with the judge’s dismissal of the allegation that Supervi-
sor Robert Church threatened employees in violation of Sec. 8(a)(1) by
telling them that the Respondent had a list of people in the front office
and was “cleaning house.” This statement was made in the context of a
discussion of employee discharges not otherwise implicated in this
proceeding. Furthermore, although the evidence shows that another
supervisor, Robert Coffey, had provided the Respondent with a list of
union supporters, there is no evidence that the employees were aware of
that list at the time of Church’s statement. In this setting, we find that
employees could not have reasonably understood Church’s statement as
threatening employees with discharge for their union activities.
O’Meara.5 For the reasons discussed below, however,
we reverse his findings that employees Donald Parnell
and Alesa Tingler were discharged in violation of Sec-
tion 8(a)(3) and (1), and we shall dismiss the complaint
in its entirety.
1. Facts
The relevant facts are more fully set forth in the
judge’s decision. The Respondent operates a manufac-
turing plant in Granite Falls, North Carolina. Teamsters
Local Union 61 began an organizing campaign at the
Respondent’s facility in May 1999. After August 1999,
the Union apparently ceased actively campaigning and
held no further meetings with employees. Employees
continued to submit authorization cards until early Janu-
ary 2000.6
The events that gave rise to the discharges of alleged
discriminatees Donald Parnell and Alesa Tingler, both of
whom were machine operators working at the Granite
Falls plant, occurred on January 26. That morning,
Parnell went to the warehouse area of the plant to obtain
some packing materials. On his way back to his work
area, Parnell met Supervisor Douglas Laws. Laws asked
Parnell why he was in the loom area and Parnell re-
sponded, “I’m trying to get some materials.” Laws re-
minded him that he should ask his lead person to get ma-
terials for him. Laws told Parnell to return to his ma-
chine, and instructed him to remain in his work area and
inform his lead person if he needed any materials.
Later that same day, Laws observed Parnell and Tin-
gler standing near the production office, away from their
machines, talking with Janet Barker, an office employee.
Laws motioned for them to move along and then walked
away from the office. Shortly thereafter, Laws looked
back and observed that the group had not dispersed.
When Parnell and Tingler noticed Laws looking at them,
they immediately disbanded.7
Before returning to her work area, Tingler went to the
restroom and then to the canteen. Upon her return, Laws
told Tingler that he had been to her machine twice in the

5 In affirming the judge’s dismissal of the allegations as to the dis-
charge of employee Gordon O’Meara, we find it unnecessary to pass on
the judge’s finding that the Respondent lacked knowledge of
O’Meara’s union activities because Supervisor Church’s knowledge of
O’Meara’s union activities was obtained prior to Church’s promotion to
a supervisory position. Rather, we rely solely on the judge’s alternate
findings, based on the credited evidence, that O’Meara’s vulgar and
obscene conduct in the presence of a female job applicant was not
shown to have been treated in a disparate fashion, and that the personal
embarrassment of O’Meara’s supervisor over that misconduct was the
sole basis for the supervisor’s recommendation to discharge O’Meara.
6 All dates hereafter are in 2000 unless otherwise indicated.
7 There is no evidence that Laws had any further contact with Parnell
that day.
NEPTCO, INC. 19
intervening 20 minutes, that she had not been there, and
that a spool on the machine had stopped in her absence.
Tingler told Laws that she was sorry, explaining that she
left her machine to go to the restroom. At that point,
Laws sent Tingler home for the day.
Thereafter, Laws met with Human Resources Manager
Linda West concerning the incidents involving Parnell
and Tingler. After reviewing their personnel files, Laws
and West recommended to Plant Manager Dharman
Hensman that both employees be discharged. Hensman
approved the discharges.
The next day, January 27, Parnell was given a letter
stating that his employment was being terminated. Al-
though the letter gave no specific reason for the dis-
charge, Parnell was told that it was due to his job per-
formance.
Tingler was not notified of her discharge until January
31, which was the first day she had been scheduled to
work after January 26. Laws handed Tingler a letter
similar to the letter given to Parnell a few days earlier,
and told her that she was being terminated because of her
job performance and “the incident that happened last
week.”
The Respondent contends that Parnell’s and Tingler’s
conduct on January 26 violated company work rules,
which are set forth as groups I and II in the employee
handbook. Group I work rules prohibit, for example,
insubordination and refusals to comply with a superior’s
instructions, while group II work rules prohibit an em-
ployee from leaving the job during work hours without a
supervisor’s authorization. A violation of a group I work
rule may result in immediate discharge, while a violation
of a group II work rule may result in disciplinary action
ranging from warnings to suspension or termination.
The work rules specifically state that “[a]lthough the
company normally follows a progressive corrective ac-
tion procedure, this procedure may be altered by specific
circumstances at the employer’s discretion.” The Re-
spondent claims that these work rules allowed the dis-
charges of Parnell and Tingler and that these employees’
union activity played no part in the decision to discharge
them.
2. Discussion
“Employees have a statutory right to engage in union
activity without interference from their employer. But,
the Act is not a shield protecting employees from their
own misconduct or insubordination.”8 Under the stan-

8 Guardian Ambulance Service, 228 NLRB 1127, 1131 (1977) (un-
ion supporter lawfully discharged for disregarding his superior’s order).
dard set forth in Wright Line,9 the General Counsel bears
the initial burden of establishing that the employer’s dis-
charge of employees for insubordination was motivated
by animus toward their union activities. A mere suspi-
cion of unlawful motivation for the discharges is not suf-
ficient to constitute substantial evidence that the dis-
charges resulted from improper motives.10 Only if the
General Counsel meets this initial burden, must the Re-
spondent prove that it would have taken the same action
even if the employees had not engaged in union activity.
Unlike the judge, we find that the General Counsel has
failed to satisfy his initial Wright Line burden. As ex-
plained below, the General Counsel failed to show that
the discharges of Parnell and Tingler were motivated by
union animus.
The judge’s finding of union animus with respect to
the discharges of Parnell and Tingler is based exclusively
on conjecture. Specifically, the judge relied on the brief
conversation that Parnell had with Supervisor Gary
Greene about the Union’s organizing campaign on Janu-
ary 21.11 Greene asked Parnell, an open union advocate,
how the Union was going, and Parnell responded that the
Union was “limping along.” Although the judge dis-
missed allegations that this exchange was an unlawful
interrogation, he nevertheless inferred from this ex-
change that Greene must have conveyed Parnell’s re-
marks to Plant Manager Hensman. The judge also in-
ferred that Hensman instructed Laws to “crack down” on
Parnell in order to extinguish any remaining employee
support for the Union. There is no evidence, however,
that Greene repeated Parnell’s comment to Hensman, nor
is there any evidence that Hensman suggested to Laws
that they needed to take action with regard to the union
organizers. We therefore reject the judge’s findings re-
garding what supposedly ensued from Parnell’s state-
ment. The judge engaged in the same speculation—that
the Respondent was attempting to purge those who sup-
ported the union movement—in finding that Tingler’s
discharge was motivated by union animus. Therefore,
this finding is unsupported as well.
Having rejected the judge’s principal finding regarding
union animus, we also specifically reject the judge’s

9 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir.
1981), cert. denied 455 U.S. 989, approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
10 See Mueller Brass Co. v. NLRB, 544 F.2d 815, 819 (5th Cir. 1977)
(“The mere fact that a specific employee not only breaks a Company
rule but also evinces a pro-union sentiment is alone not sufficient to
destroy the just cause for his discharge.”)
11 The General Counsel had relied on other evidence to support the
contention that the Respondent harbored union animus, all of which
were rejected by the judge. No exceptions have been filed to these
findings of the judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
conclusion that the proffered reasons for the discharges
were false.
As to Parnell’s discharge, the judge’s pretext analysis
proceeds from the erroneous premise that Human Re-
source Manager West’s characterization of Parnell’s
conduct as “insubordination” would be accurate only if it
comported with the judge’s view of the common defini-
tion of that term. The Respondent claims that Parnell
was insubordinate by his repeated “wandering” away
from his machine, despite repeated counselings that he
remain at his work location.12 The judge said that Parnell
was not in each instance refusing to obey a discrete and
direct order, which the judge held was a prerequisite for
insubordination. But the judge failed to acknowledge
that the Respondent’s own understanding of “insubordi-
nation” encompassed the more general failure to adhere
to the Respondent’s expectation that Parnell “stay at his
machine.” That the Respondent may have also character-
ized as insubordination an employee’s disregard of a
direct instruction does not establish that Parnell’s con-
duct could not also be characterized that way. In any
event, Parnell had been directed to “stay at his machine,”
had failed to do so, and thereby had engaged in insubor-
dinate conduct13 even under the judge’s definition of that
term.14 Further, even if his misconduct was not a group I
offense, the Respondent’s work rule gave it the discre-
tion to discharge an employee for a group II offense.
Accordingly, we reject the judge’s conclusion that the
Respondent falsely claimed that Parnell had engaged in
insubordination.
As to Tingler’s discharge, the judge acknowledged that
she had engaged in two instances of misconduct on Janu-
ary 26 for which she could have been disciplined: her
continued socializing after being motioned to “move on”
and her abuse of restroom privileges. Tingler had been
told to “move along” back to her machine. She did not
immediately do so. Only after the supervisor looked
back did she do what she had been told. The disobedi-
ence was insubordination, and a group I offense. In addi-
tion, as noted above, even if the offense was not a group
I offense, the Respondent had the discretion to fire her.
The fact that the level of discipline was harsh, according
to the judge and our dissenting colleague, does not make

12 Laws testified that he had orally admonished Parnell a number of
times prior to Parnell’s discharge. The judge inferred that Parnell
would have admitted that Laws’ accusations were true had the General
Counsel raised the issue during Parnell’s testimony.
13 The judge found that Parnell was not explicitly told that he was
fired for insubordination. But, that does not establish that he was not in
fact fired for insubordination.
14 See Parker Hannifin Corp., 259 NLRB 263, 266 (1981) (em-
ployee’s refusal to follow her supervisor’s instruction to return to her
workstation constitutes a lawful reason for her discharge).
the discipline per se unlawful under the Act.15 In the
absence of evidence of animus, the judge erred in deter-
mining that the level of discipline applied was itself
unlawful or that the Respondent was exploiting an oppor-
tunity to get rid of a strong union supporter.16
We further find no merit in our dissenting colleague’s
position that Supervisor Church’s statement to employ-
ees that the Respondent was “cleaning house,” which we
have unanimously dismissed as an independent 8(a)(1)
violation, demonstrated unlawful intent and union ani-
mus on the part of the Respondent. Church made no
specific reference to the Union, and the statement is too
vague to support the conclusion that Church was refer-
ring to union supporters or otherwise expressing the Re-
spondent’s views on union activity.
Unlike our colleague, we also find nothing suspect
about the timing of the discharges. “[Coincidence in
time between union activity and discharge or discipline is
one factor the Board may consider. . . . But mere coinci-
dence is not sufficient evidence of [union] animus.”17 As
stated above, the Union’s organizing campaign was ef-
fectively over by the fall of 1999. Parnell and Tingler
were not discharged until several months after the Union
had ceased actively campaigning at the Respondent’s
facility. Thus, we find nothing about the timing of the
discharges that suggests the Respondent was motivated
by union animus.
Finally, we disagree with our colleague’s contention
that the Respondent failed to abide by its disciplinary
policy in terminating Parnell and Tingler. Although it
appears that the type of misconduct for which the em-
ployees were discharged could have resulted in less se-
vere penalties under the Respondent’s system of progres-
sive discipline, the Respondent’s policy also provides
that the Respondent may alter disciplinary consequences
based on the circumstances of a particular situation.
Here, where there is no independent evidence of any un-
ion animus on the part of the Respondent, the burden
never shifted to the Respondent to justify the discipline
under Wright Line principles. Therefore, we will not
infer, merely based on the Respondent’s exercise of its

15 “The decision of what type of disciplinary action to impose is fun-
damentally a management function.” Midwest Regional Joint Board v.
NLRB, 564 F.2d 434 (D.C. Cir. 1977).
16 “In passing the Act, Congress never intended to authorize the
Board to question the reasonableness of any managerial decision nor to
substitute its opinion for that of an employer in the management of a
company or business, whether the decision of the employer is reason-
able or unreasonable, too harsh or too lenient. The Board has no au-
thority to sit in judgment on managerial decisions.” NLRB v. Florida
Steel Corp., 586 F.2d 436, 444–445 (5th Cir. 1978).
17 Chicago Tribune Co. v. NLRB, 962 F.2d 712, 717–718 (7th Cir.
1992).
NEPTCO, INC. 21
discretion under its disciplinary system, that the alleged
discipline was unlawfully motivated.
“Absent a showing of anti-union motivation, an em-
ployer may discharge an employee for a good reason, a
bad reason, or no reason at all without running afoul of
the labor laws.”18 In sum, we do not find sufficient evi-
dence to support a finding of antiunion motivation under-
lying the discharges of Parnell and Tingler. Accordingly,
we reverse the judge and dismiss the 8(a)(3) and (1) alle-
gations concerning the discharges of Parnell and Tin-
gler.19
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting in part.
Contrary to the majority’s view, this is not a matter of
accepting an employer’s managerial judgment. Instead,
it is a matter of determining the employer’s real motive.
The evidence here demonstrates that the Respondent
discharged two leading union supporters (Donald Parnell
and Alesa Tingler) without affording them the normal
course of progressive discipline under its established
disciplinary policy. The Respondent gave the same rea-
sons for both discharges, which the judge correctly found
to be false. Before the firings, a supervisor announced to
employees that the Respondent was “cleaning house.”
The discharges, in turn, eliminated the core of the Un-
ion’s faltering support in the workplace. Because the
record undercuts the Respondent’s claimed reasons for
the discharges, I would affirm the judge’s finding that the
discharges were motivated by antiunion animus and
therefore violated Section 8(a)(3) and (1).1
I.
The Respondent made the decision to discharge
Parnell and Tingler, acknowledged union activists, on the
afternoon of January 26, 2000,2 after Supervisor Douglas
Laws had observed them away from their workstations.
The next day, Parnell met with Laws and Human Re-
sources Director Linda West, at which time Parnell was
given a letter informing him that he was being terminated
immediately. The letter gave no reason for the termina-
tion. When Parnell asked why he was being terminated,
Laws told him that it was for “job performance.” Parnell
then pressed for more details, and Laws stated that, “Job
performance covers a lot of things.”

18 Midwest Regional Joint Board v. NLRB, supra at 440.
19 Contrary to the opening assertion of our colleague, we fully under-
stand that this case turns on motive. We have shown, at some length,
that the burden of showing unlawful motive has not been met.
1 I agree with the majority as to the dismissal of the remaining com-
plaint allegations, as found by the judge.
2 All dates are 2000 unless otherwise indicated.
Tingler was informed of her termination during a
meeting with Laws and West on January 31, her next
scheduled workday. Laws told Tingler that she was be-
ing terminated because of “the incident that happened
last week,” and her performance. Tingler also received a
termination letter that was identical to the one that
Parnell had received.
The Respondent maintains an employee handbook,
which divides work rules into two categories, group I and
group II, for the purpose of discipline. A violation of a
group I work rule by an employee can result in immedi-
ate discharge, while a violation of a group II work rule
normally results in progressive discipline. The handbook
states that employees who accumulate three written
warnings will be discharged, but that “although the com-
pany normally follows a progressive corrective action
procedure, this procedure may be altered by specific cir-
cumstances at the employer’s discretion.” Human Re-
sources Manager Linda West testified that the Respon-
dent considers only disciplinary history during the most
recent 12 months of employment in determining the ex-
tent of discipline to be imposed.
After her discharge Tingler filed a claim for unem-
ployment compensation with the North Carolina Em-
ployment Security Commission. In response to an in-
quiry from the Commission as to why Tingler was dis-
charged, West asserted that Tingler was discharged pur-
suant to a violation of group II work rules 2 (failure to
wear safety glasses) and 7 (leaving the job during work-
ing hours without permission).
II.
Unlike the majority, I would find that the General
Counsel has met his burden of establishing that the dis-
charges of both employees were unlawfully motivated. It
is undisputed that the Respondent knew that both Tingler
and Parnell were union activists, and the Respondent’s
explanation for summarily firing these employees does
not stand up.
There is no contention by the Respondent that the per-
sonnel file of either Parnell or Tingler included any writ-
ten warnings issued during the prior 12 months,3 or that it
had followed progressive disciplinary steps in discharg-
ing these employees. Rather, the Respondent contends
that both Parnell and Tingler were discharged for insub-
ordination, which is a group I work rule infraction, for
which an employee may be immediately discharged.
The Respondent also contends that it exercised its discre-

3 Parnell had no written or oral warnings for that period, although
there were two negative notes that did not rise to the level of a warning.
Tingler had a single oral warning as a result of an October 1999 glue
spill.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
tion to bypass the usual disciplinary steps, applicable to
group II work rule infractions, and immediately dis-
charge the employees as a result of its frustration with
the failure of both employees to improve their work hab-
its.
The only evidence that the Respondent presented in
support of its contentions was the testimony of Laws and
West. However, the judge discredited that testimony,
rejecting as pretextual their explanations for recommend-
ing that the employees be summarily discharged. It is
well established that when an employer’s stated motives
for its actions are found to be false, the Board may infer
from all of the circumstances that the employer’s true
motive is an unlawful one that the employer seeks to
conceal. See, e.g., Fluor Daniel, Inc., 304 NLRB 970
(1991), enfd. 976 F.2d 744 (11th Cir. 1992) (citing Shat-
tuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470,
(9th Cir. 1966). The evidence presented here warrants
such an inference.
First, with regard to Parnell, the judge discredited
Laws’ assertion that he told Parnell that he was being
discharged because he was insubordinate. In discrediting
this testimony, the judge cited the consistency of the tes-
timony of West and Parnell, as well as notes made by
West on Parnell’s termination letter, indicating that
Parnell was told only that he was being discharged for
his job performance. In short, the judge found that the
proffered explanation at the hearing for Parnell’s dis-
charge was false. Moreover, no documentary evidence
supports the Respondent’s claim that it considered the
conduct insubordinate at the time of the discharge. In-
deed, the evidence regarding employee Tingler’s dis-
charge is to the contrary, as discussed below.4
As to the remaining reason asserted for Parnell’s dis-
charge, Laws testified that he relied on Parnell’s being a
chronic “wanderer.” Although the judge found that the
evidence supported this characterization of Parnell, he
found that this was not the real basis for the discharge.
In particular, the judge disbelieved Laws’ testimony that
he recommended that Parnell be discharged for “wander-
ing” because imposing less severe disciplinary conse-
quences would not have changed Parnell’s behavior. In
discrediting this assertion, the judge relied on evidence
demonstrating that Parnell had responded positively in
the past when he was warned that his conduct was unac-

4 Although I do not disagree with the judge’s doubts that Parnell had
actually engaged in insubordination, I find it necessary only to rely on
the judge’s finding that the Respondent did not, in fact, base its disci-
plinary decision on a group I work rule infraction (insubordination)
which would have itself justified immediate discharge.
ceptable.5 Further, there is no evidence to indicate that
Parnell was ever warned that his job performance was
deficient because of his “wandering” or that his conduct
could result in discharge. Thus, the Respondent failed to
show the necessary “specific circumstances” to justify a
summary discharge for a group II work rule infraction.
With regard to Tingler, the judge discredited West’s
testimony that Tingler was discharged for insubordina-
tion. The judge relied on the inconsistencies between
West’s proffered explanation for the discharge at trial,
which involved insubordination, and her previous report
to the Employment Security Commission, which did not.
Noting the absence of any mention of insubordination in
the report to the Commission, which relied solely on
group II work rule infractions, and based on West’s de-
meanor, the judge specifically found that insubordination
was a reason added at the hearing to enhance the Re-
spondent’s defense.
Further, the judge found that Laws “padded” his rea-
sons for recommending Tingler’s discharge by asserting
that Tingler failed to wear side shields for her safety
glasses on January 26. Shortly before meeting with West
to discuss Tingler’s discharge, Laws sent West an e-mail
stating that there had been several issues with regard to
Tingler that day, including her failure to wear the side
shields. However, the judge found that Laws never men-
tioned anything to Tingler about side shields on the 26th,
that she had never been disciplined for failing to wear
side shields,6 and that Laws’ reliance on this was nothing
more than a device to bolster the reasons first proffered
at the hearing for the discharge.
As the judge did, I would find that the Respondent
clearly disregarded its established disciplinary policy in
dealing with Parnell and Tingler. The evidence indicates
that the type of misconduct for which the employees
were ostensibly discharged—socializing and being away
from their respective work areas during worktime—is no
more serious than misconduct covered by group II work
rules, which normally results in progressive discipline.
Indeed, Plant Manager Hensman admitted that he could
not recall any prior situation in which he discharged an
employee for being away from his or her workstation
“right off the bat.” It is further admitted by the Respon-
dent’s supervisors that both employees were “good” em-

5 This conclusion is supported by evidence showing that Parnell had
received four oral warnings for a variety of reasons during the period
from August 1997 through April 1998, but thereafter so improved his
performance that he was one of a few employees who received a “qual-
ity achievement award” in May 1999 for his work in the latter half of
1998.
6 Significantly, the judge credited Tingler’s testimony that it is rela-
tively common for employees not to wear side shields and for supervi-
sors to have to remind employees to wear them.
NEPTCO, INC. 23
ployees prior to their discharge. Yet the Respondent
terminated Parnell and Tingler, both leading union sup-
porters, without affording them the usual steps in the
disciplinary process, and then offered no credible expla-
nation for this action.
Other evidence in the record reinforces the judge’s
finding of an unlawful motive and demonstrates that the
Respondent harbored animus towards the Union. During
the Union’s organizing campaign, the Respondent ob-
tained a list of union supporters from one of its supervi-
sors. In early January, Supervisor Robert Church told a
group of employees that the Respondent had a list of
people in the front office and that the Respondent was
“cleaning house.”7 A few weeks later, Parnell and Tin-
gler, who were known by the Respondent to be active
union supporters, were discharged. Such remarks, in
context, are not mere coincidence, but are evidence of the
Respondent’s antiunion animus.8
Finally, I would find the timing of the discharges of
the two leading union supporters, at the same time the
Union’s campaign was faltering, to be suspect. Although
it was apparent that the Union was not making much
progress in organizing employees, the Respondent knew
that neither Tingler nor Parnell had given up in their at-
tempts to bring the Union into the plant. By getting rid
of both employees, the Respondent killed the principal
remaining basis of the Union’s support.
In my view, the evidence is sufficient to establish that
the discharges were unlawful. In contrast, the majority
dismisses the judge’s findings of pretext, contending that
the judge substituted his definition of insubordination for
that of the Respondent. I disagree. Rather, the judge
disbelieved the testimony of Laws and West that they
considered the employees to be insubordinate, and found
that this explanation for the discharges was false. Con-
sequently, I would find that the discharges violated the
Act.

7 Because there is no evidence that the employees knew that the Re-
spondent had a list of union supporters, I agree with the majority that,
at the time, the employees would not reasonably have interpreted
Church’s statement as a threat. This finding, however, does not pre-
clude a finding that the statement did, in fact, reflect the Respondent’s
animus.
8 I would also find that a statement made by Plant Manager
Hensman to employees during the Union’s organizing campaign, that
the plant was nonunion and the Respondent wanted to keep it that way,
further supports the finding of the Respondent’s antiunion animus.
Although Hensman’s statement was not alleged to be unlawful, it nev-
ertheless supports a finding of animus on the part of the Respondent.
See, e.g., Overnite Transportation, 335 NLRB 372, 375 fn. 15 (2001);
Gencorp, 294 NLRB 717 fn. 1 (1989); Smith’s Transfer Corp., 162
NLRB 143, 161–164 (1966).
Jasper C. Brown Jr., Esq., for the General Counsel.
A. Bruce Clarke, Esq. and (brief only) Sheri L. Roberson, Esq.
(Ogletree, Deakins, Nash, Smoak & Stewart), of Raleigh,
North Carolina, for the Respondent, Neptco.
Johnny Sawyer, Business Agent (Teamsters Local 61), of Ashe-
ville, North Carolina, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. At the en-
trance to the American cemetery on Iwo Jima, the haunting
challenge from a chiseled inscription greets the visitor. As if
spoken by voices from the graves of the more than 6000 United
States Marines who once were buried there, the souls of these
heroes solemnly declare:1
When you go home
Tell them for us and say
For your tomorrow
We gave our today
This is a discharge case. Of the four employees that Neptco
fired in January 2000, I find in favor of the Government re-
specting two. One of these two is Donald Parnell—the ac-
knowledged leader of the employees supporting the Union’s
organizing campaign. The sacrifice at Iwo Jima, of course, was
physical death in wartime combat. Even so, the sentiment ex-
pressed in the above quotation reminds us here that there are
American workers who, because of their vigorous and public
support of a union, pay the ultimate employment price—they
give their “today” (their jobs) so that workers who follow will
have a “tomorrow.”
Neptco fired the four employees during the 2 days of January
26–27, 2000.2 The four dischargees had been active in the
Union’s organizing campaign that began about May 1999. The
parties dispute whether the organizing campaign had ended
about July/August (Neptco’s position) or whether it remained
viable in January 2000 (as claimed by the Government and the
Union).
I presided at this 4-day trial in Morganton, North Carolina
beginning June 12, 2000, and concluding on June 15. Trial was
pursuant to the March 31, 2000 complaint and notice of hear-
ing, issued by the General Counsel of the National Labor Rela-
tions Board through the Regional Director for Region 11 of the
Board. Such pleading is based on an unfair labor practice
charge filed against Neptco on February 1, 2000, in this case by
Teamsters Local Union 61 (Union, Teamsters, or Local 41).
The pleadings establish that the Board has both statutory and
discretionary jurisdiction over Neptco, a Rhode Island corpora-
tion, that Neptco is a statutory employer, and that the Union is a
statutory labor organization. Neptco has a plant at Granite
Falls, North Carolina, and that is the facility involved here.

1 J. Bradley with R. Powers, Flags of Our Fathers 246–247 (Bantam
Books, 2000). On November 10, 1954, the 179th anniversary of the
U.S. Marine Corps, the U.S.M.C. War Memorial was unveiled and
officially dedicated in Washington, D.C. (Id. at 326; National Park
Service website).
2 Unless otherwise indicated, the dates run from May 1999 to early
2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
Neptco employs about 200 employees at the Granite Falls facil-
ity. (1:98; 2:350.)3 Neptco’s history is described in the em-
ployee handbook (GC Exh. 11 at 6–7), and we there learn that
the Granite Falls plant opened in 1985. Similar company his-
tory, which I consider only as supplemental background, is
found at Neptco’s website, www.neptco.com. Founded in
1953, that history details, Neptco was acquired in 1987 (hand-
book) by Cookson Group plc of London, England. “Founded
in 1704, Cookson is one of the world’s leading specialist indus-
trial materials companies.” (Website.) At the website (as well
as in the handbook), Neptco’s products also are described, ap-
parently including the fiber optic cable involved here. When he
began testifying, Dharman P. Hensman, the plant manager of
the Granite Falls facility, used a small section of such a cable to
describe the item produced at Granite Falls. (2:352–358.)
Similar cables are depicted at the website. The website’s page
for corporate history lists principal personnel as including Vice
President of Operations Lois Kilsey. Hensman testified that he
reports to Kilsey. (2:386–387.)
The complaint contains just two allegations of 8(a)(1) coer-
cion—a threat of retaliatory discharge (three incidents), and an
instruction (a single occasion) to cease wearing union insignia.
The four instances of this alleged coercion are listed as occur-
ring from mid-September to January 21. Neptco denies. The
complaint also alleges that Neptco violated Section 8(a)(3) of
the Act by firing four employees in late January—Kenny Price
on January 26 and Gordon O’Meara, Donald Parnell, and Alesa
Tingler on January 27. Admitting the discharges, MTSI denies
that it violated the Act by such disciplinary actions.
Johnny Sawyer, the Union’s business agent, describes the
organizing as beginning with a call in May 1999 to his office
by Donald R. Parnell. Later that month Sawyer held a first
meeting with about five or six employees at a restaurant with
subsequent meetings at the home of Alesa Tingler. (1:29–1:30;
4:877.) Sawyer asserts that the organizing campaign remained
active through July and August. (1:30–1:31.) Indeed, the re-
cord reflects that the Union received signed authorization cards
into January 2000, with 10 cards bearing dates from October 1
to January 3. (1:33–34; 2:290; R. Exh. 7.) However, the orga-
nizing drive apparently never gained enough support for the
Union to file a petition for a Board-conducted election.
Of the 14 witnesses who testified, 7 were called by the Gen-
eral Counsel, who then rested the Government’s case in chief
(2:339), and 7 were called by Neptco, who then rested (4:876–
877.) [The transcript fails to show Neptco’s resting. The page
citation I give is based on my trial notes as the point at which
the resting would appear if shown.] The Government recalled
Sawyer for a short rebuttal stage. There was no surrebuttal. At
Neptco’s request, sequestration of the witnesses, with certain
exemptions, was ordered. (1:25–27.)
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the posttrial
briefs filed by the General Counsel and by Neptco, I make
these

3 References to the 4-volume transcript of testimony are by volume
and page. Exhibits are designated GC Exh. for the General Counsel’s,
and R. Exh. for those of Respondent Neptco.
FINDINGS OF FACT
A. Neptco’s Operations at Granite Falls
At its Granite Falls facility, Neptco manufactures shielding
and pulling tapes for the wire and cable industry, and fiber
optic strength members and packaging tape for the electronic
industry. The plant of some 200 employees (direct and indi-
rect) operates on a continuous 7-day schedule, around the
clock, with about 160 of the 200 employees assigned to four
shift crews working 12-hour shifts. (1:98, 115; 2:350–360.)
Dharman P. Hensman became the plant manager in January
1999. (2:350, 362.) Linda B. West, human resources manager,
who has worked for Neptco at the Granite Falls plant since
1982, reports to Hensman. (2:417; 3:552.)
Following his January arrival at the plant, Hensman spent
much of his early days on the plant floor, even operating, and
learning to operate, the machines. Then he began making
changes. (2:362.) Still in that first January, Hensman spoke to
the employees, assembled in different groups at different times
and generally grouped by their job function. His topic was,
“What It Takes To Be No. 1.” (R. Exh. 11.) He spoke about
correcting various problems pertaining to productivity and at-
tendance, and he set goals. (2:363–365, 368–370.) Either in
late December 1999 or early January 2000, Hensman spoke to
the employees again to discuss how the plant had done in 1999
in reaching the goals that he had set shortly after his arrival.
Although most of the goals were met, some were not. Absen-
teeism and tardiness were two items that he discussed. Among
other things, Hensman stressed that employees needed to arrive
on time and be at their machines in order to get good “turn-
over” (good production, apparently), and he also stressed that
he expected efficiency in the process of operating the equip-
ment. (R. Exh. 12; 2:365–368, 387.)
B. Neptco’s Response to the Union’s Organizing Effort
In May management showed employees a film conveying a
message that employees did not have to sign union cards or to
be threatened by a union and that a union would not always do
good things for employees. Following the film Plant Manager
Hensman, with Human Resources Manager West present, reit-
erated a point made in the film by telling the assembled em-
ployees that the plant was nonunion and that Neptco wanted to
keep it that way. (1:172, Price.) In making his statement to the
employees, Hensman abbreviated Neptco’s policy statement,
set forth in the employee handbook, so as to stress the nonunion
part. The full policy paragraph reads (GC Exh. 11 at 8):
It is the policy of the Company to provide meaningful work in
a satisfactory, safe working environment where all employees
have the opportunity to progress to the optimum of their skill,
energy and ability while earning fair and competitive wages.
We strive to continue this tradition by encouraging each em-
ployee to think and speak freely with managers at all levels
without the intervention of third party union representation.
Because of this firm conviction, we believe that a continued
union-free operation is to the best advantage of both employ-
ees and the Company.
In addition to the first opposition film shown in May by
Neptco (as mentioned earlier), Neptco appears to have shown
NEPTCO, INC. 25
other films opposing unionization. (2:388, Hensman) None of
these other films is described in the record. Neptco also held
meetings with its supervisors, and instructed them in the “Do’s
and Don’ts” of a union organizing campaign, telling them, in
the process, to pay closer attention to their employees. (4:806–
807, Laws.) Supervisor Laws testified that he did pay closer
attention, and that he started issuing warnings to alleged dis-
criminatees Parnell and Price. (4:807.) However, the warn-
ings, Laws asserts, were issued in response to events on the
plant floor and not as a result of the meeting with management.
Thus, Laws assures, his warnings practice did not change.
(4:807–808.)
Management also sought feedback and opinions from each
of its supervisors regarding employee union sentiment or non-
union sentiment. Apparently in response to Neptco’s request
for such information, Robert E. Coffey, then a production su-
pervisor (per trial amendment of the complaint, an admitted
statutory supervisor during the relevant period, ending with his
September 9, 1999 termination (1:7–9, 70, 99) provided a list of
union supporters to Human Resources Manager Linda West
(1:77) and also to Production Manager (1:77, 123) Alan
Yancey (1:77).
To the extent that any testimony of former Supervisor Coffey
supports, or aids in supporting, any finding that I make in this
decision, I have weighed Coffey’s potential bias (possibly re-
sulting from his discharge by Neptco) in resolving credibility
and making my findings. Having observed Coffey testify, and
weighing all considerations, I find former Supervisor Coffey to
be a credible witness who testified with a persuasive demeanor.
C. Allegations of Coercion
1. Threats of retaliatory discharge4
(a) Supervisor Robert Dean Church
(1) Mid-September 1999
Complaint paragraph 8(a) alleges two dates as to Supervisor
Church—mid-September and early January. Respecting the
mid-September incident, machine operator Gordon R.
O’Meara, who worked on the term of Supervisor Robert Dean
Church, testified that Church came walking through the area
and stopped briefly to talk with employees at their machines.
Employee Richard Roark was present. As Church and
O’Meara talked, the Union was mentioned, and Church asked
O’Meara how he felt about it. O’Meara said that he favored the
Union, but that he did not care one way or the other. In a jocu-
lar fashion, O’Meara then asked how much Neptco would pay
the employees to keep the Union out. Church replied, “Well, if
it gets in, you’ll be lucky if you have a job.” O’Meara just
turned around and resumed working and Church moved to the
next machine. (1:132–135, 162–163.)
Roark, who no longer works at Neptco, and who apparently
has moved to Indiana (1:132), did not testify.
Denying that such a conversation occurred (3:643–644),
Church goes on to report that in September he was still a lead
person in training to be a supervisor, and that he did not inde-

4 Complaint par. 8(a) alleges 8(a)(1) threats of retaliatory discharge
by Supervisors (Robert) Dean Church and Greg Greene.
pendently take charge of the “C” shift until October 25, 1999.
(3:638–642; R. Exh. 29 at 2.) Indeed, Church asserts that he
did not even meet O’Meara until early October (3:640–641,
663), and asserts (3:643, 663) that he did not know O’Meara
was a union supporter. Church’s training schedule (R. Exh. 29)
reflects that Church did not begin working with crew C until
September 22, that he is described there as a “Shadow Supervi-
sor” for September 22 and 24, an “Acting Supervisor” from
September 27 to October 21 and on October 25, “Assume Crew
C independently.”
Regardless of what the titles might suggest in the way of
employee or supervisory status, the simple fact is that the su-
pervisory status of (Robert) Dean Church was not litigated by
the Government (although Neptco offered some evidence, such
as Church’s training schedule and his testimony about that
schedule), and Neptco does not admit as to such status until
October 25. Even if Church were to be viewed as a statutory
agent once he became an “Acting supervisor” on September 27,
that date does not reach back to the mid-September allegation.
Because O’Meara testified more persuasively on this issue
than did Church, I credit O’Meara’s version of the mid-
September conversation. However, I also credit Church’s de-
scription of when he became the supervisor of the shift, that
date being October 25. The timing of Church’s promotion from
lead person to supervisor was put in issue by Neptco’s answer
to the complaint. (3:639–640.) Finding that the Government
failed to establish that, as of mid-September, Robert Dean
Church was a statutory supervisor or a statutory agent (indeed,
on brief the General Counsel does not address the matter), I
shall dismiss complaint paragraph 8(a) as to the mid-September
allegation.
(2) Early January 2000
O’Meara testified that in early January as he was outside in
the smoking area talking with employee Cheryl Bogle about
some employees who recently had been fired, Supervisor
Church came outside and joined their conversation. Church
said that the front office had a list of people who were “in the
Union,” that Neptco would be “cleaning house,” and that first
shift lead person David Allen probably would be “next.” (Al-
len visibly wore union insignia.) Church began laughing as he
reported these facts, and O’Meara extinguished his cigarette
and went inside. It was cold outside, and the conversation was
short. (1:136–138, 163–164.)
Cheryl Bogle corroborates only some of O’Meara’s testi-
mony. First, Bogle’s memory is rather fuzzy about the time-
frame, and she tends to place the incident in late December or
around the first of the year. As this is not a significant variance
from the allegation, I deny Neptco’s motion (1:61) to strike her
testimony because of the asserted variance.
The bigger problem is that, in rendering her account of the
“long list in the office” and “cleaning house” of Church’s at-
tributed remarks on direct examination (1:42–44), Bogle fails to
quote Church as mentioning “union,” and on cross-examination
she admits (1:64) that Church did not say that the terminated
employees had been fired because they were involved in the
Union. She adds that she believes that most of them were so
involved. (1:64.) That fact merely tends to support an infer-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
ence that any assertion that Church referred to the Union is
based on the assumption that the discharges were union related
simply because the dischargees had supported the Union. Fur-
ther complicating the issue, Bogle further testified, on cross-
examination, that Church did mention David Allen as possibly
being the next person to be terminated. (1:63.)
For his part, Supervisor Church denies having any conversa-
tion with O’Meara about the Union, and no conversation in
which he told of another employee who might be terminated.
Moreover, Church has never heard of any effort or purpose that
lead person David Allen, who remains employed with Neptco,
was to be terminated. (3:644–645.)
As Bogle appeared to testify with sincerity, I treat her testi-
mony and that of O’Meara as a composite account. That com-
posite version fails to persuade that Church (whom I do not
credit respecting this conversation) injected the word “union”
into his remarks. What apparently happened, I find, is that
because the terminated employees were union, the concept of
“union” was transferred to the remarks that Church made about
a list of employees to be terminated and the “cleaning house”
statement. Thus, what could well have been a reference to
employees with poor records of productivity or attendance, or
other inefficiencies, became, in O’Meara’s account, union sup-
porters. This is not to say that O’Meara gave a deliberately
false account. What is more likely is that the mental transposi-
tion in O’Meara’s mind was completely unconscious on his
part. In any event, finding the evidence insufficient to support
the allegation, I shall dismiss complaint paragraph 8(a) as to
Church for early January 2000.
(b) Supervisor Gregory Greene
Complaint paragraph 8(a) alleges one date as to Supervisor
Greg Greene—January 21, 2000. The Government’s support-
ing witness is Donald R. Parnell, one of the alleged discrimina-
tees, and Supervisors Gregory M. Greene and Gary Greene (no
relation) provide rebutting testimony.
As he was walking in the aisle past the production office on
January 21, Parnell testified, Supervisors Gregory Greene and
Gary Greene entered the aisle walking toward Parnell. On
seeing Parnell, they started laughing. Reaching them, Parnell
asked them what was so funny. “You are,” Gary Greene re-
plied, who then asked how the Union was going. “We’re limp-
ing along,” Parnell answered. Gregory Greene then asserted,
“You’re finished, the Union’s dead.” “Do you think so,”
Parnell commented as he walked away. (2:301–302.)
Gary Greene denies the incident (4:846–847, 850), as does
Gregory Greene (4:871–872) who also adds, in response to a
leading question, that he never threatened Parnell (4:855). The
Greenes also describe an unrelated matter concerning whether
Parnell offered to give Gary Greene his union badge if the Un-
ion campaign failed. Although I credit Parnell’s account, I find
no need to summarize this matter further because the “You’re
finished” conversation is a stand-alone event.
Finding Parnell credible as to the aisleway conversation with
the Greenes on January 21, and not believing the denials of the
Greenes, I nevertheless shall dismiss complaint paragraph 8(a)
as to Supervisor Greg Greene regarding January 21, 2000. At
trial the General Counsel argued that the reasonable interpreta-
tion of Supervisor Greg Greene’s remark (“You’re finished.
The Union is dead.”) is (2:344), “You’re about to be fired and
the Union is dead.” Arguing more generally in the Govern-
ment’s brief, the General Counsel nevertheless always sees fit
to fashion the Government’s argument based on the contention
that the quoted remark should be read as if it contained an
“and.” The Government’s argument is unpersuasive.
I find the reasonable interpretation of the quoted remark to
be a reference to the Union’s organizing drive, not to Parnell
personally. Parnell openly and vigorously supported the Union.
Supervisor Gregory Greene’s remark simply meant, I find, that
the Union was finished because the Union’s organizing cam-
paign was dead. Factually, Supervisor Gregory Greene was
substantially correct, for the Union’s last formal meeting was in
August (1:31), and the last signed authorization card the Union
received was dated January 3, 2000. (2:290; R. Exh. 7.) There-
fore finding nothing coercive in the quoted statement made to
Donald Parnell, I shall dismiss complaint paragraph 8(a) as to
Supervisor Greg Greene respecting the date of January 21,
2000.
2. Instruction to remove union insignia
Complaint paragraph 8(b) alleges that on November 5, 1999,
Neptco, by Plant Manager Dharman Hensman, “Interfered with
its employees’ union activities by instructing its employees to
remove wearing apparel displaying union insignia on their per-
son.” Alesa Tingler, one of the alleged discriminatees, testified
in support, and Hensman opposed.
Referred as a temporary employee in October 1998, Alesa
Tingler was hired as a regular employee of Neptco on Decem-
ber 28, 1998. (2:244–245.). When Dharman Hensman became
Plant Manager of Neptco’s Granite Falls facility in January
1999 (2:350, 362), he was trained by Tingler for several hours
one day on Tingler’s “glass yield” machine. (2:252, 376, 393–
394.) Hensman asserts that he and Tingler joked “all the time.”
(2:376, 393.) Seemingly this is testimony that Hensman is
describing a working relationship with Tingler that continued
beyond the day that she trained him.
Tingler testified that she frequently wore union insignia from
June until she was fired in late January 2000. (2:248, 252.) On
November 5, Tingler testified, she was wearing her union T-
shirt (bearing the names of union officials Hoffa and Cipriana)
in the glass yield area. Plant Manager Hensman came by and
said, “Get that damn thing off.” Hensman then “chuckled.”
Tingler replied that she had dated enough truckdrivers that she
could get by wearing the T-shirt. They both laughed about it,
and Hensman went on his way. (2:248–250, 252, 281.)
On January 18, Tingler again wore her union T-shirt. The
next day, January 19, Tingler wore a Neptco shirt. As she and
Hensman passed in an aisle adjacent to the work area, Hensman
said that her shirt was much better and that she should burn the
other one. On this occasion, rather than laughing as in Novem-
ber, Hensman’s facial expression did not change from its gen-
eral appearance. (2:250–252.) The relevance of the unalleged
January incident is unclear. I find that it fails to add any clari-
fication to the November incident that is alleged.
Hensman asserts in answer that, respecting the November in-
cident, he told Tingler he thought she had lost the (union) T-
NEPTCO, INC. 27
shirt. She said that she had just grabbed the first garment avail-
able when she rolled out of bed that morning. Denying that he
had threatened Tingler, Hensman reports that he was joking.
Not long before his June 2000 testimony, Hensman relates,
Neptco, as was its custom, distributed T-shirts bearing Neptco’s
logo. The next day Tingler came in wearing hers and asked
Hensman if that was better. Hensman assured her that it was
better. (2:377–378.)
Hensman denies ever telling Tingler to take her T-shirt home
and never wear it to work again. “If anything, I would have
probably told her I hope its gets lost, or something like that.”
(2:378.) Responding to leading questions,5 Hensman testified
that he was joking and that Tingler returned his smile. (2:378.)
Asked, on cross-examination, whether he had told Tingler to
remove her union T-shirt, Hensman testified (2:393): “No, I
don’t know that I used that terminology. I probably told her to
change it out.”
Although I credit Tingler’s version of the November inci-
dent, I find nothing coercive in the circumstances. Clearly both
Hensman and Tingler treated Hensman’s remark as mere jest-
ing as if between two coworkers. I also credit Hensman that
the two continued their jesting relationship after Hensman com-
pleted his one day of training by Tingler, and that they joked
with each other frequently. Accordingly, I shall dismiss com-
plaint paragraph 8(b).
Having dismissed all allegations of complaint paragraph 8, I
now shall dismiss complaint paragraph 8 in its entirety.
D. Allegations of Discrimination
1. Kenneth E. Price
(a) Facts
Hired in September 1998, Price worked as a machine opera-
tor for Neptco until he was discharged on January 26, 2000.
(1:169; GC Exh. 8.) In May 1999, Price and some other em-
ployees began discussing the merits of union representation,
and in May and June he attended union meetings at the home of
Alesa Tingler. (1:170) As described earlier, one of manage-
ment’s first responses was to show employees a film conveying
a message that employees did not have to sign union cards or to
be threatened by a union and that a union would not always do
good things for employees. That was followed by Plant Man-
ager Hensman’s statement that the plant was nonunion and that
Neptco wanted to keep it that way. (1:172.)
About 40 minutes following the film meeting, Hensman
came by Price’s machine and a conversation ensued. Price
asked Hensman what Hensman thought about the Union.
Hensman told Price that, in Hensman’s opinion, a union was
not needed at Granite Falls. Price responded that, with a union,
the employees could get more benefits and higher pay. (1:173.)
What Hensman answered, or how the conversation concluded,
is not supplied.
From May until December, Price asserts, Price would con-
verse with his supervisor, Douglas Laws, about the benefits of
unionization, with Price vigorously expressing support for the

5 In determining the credibility of witnesses, an ALJ must weigh
whether important evidence was elicited by leading questions even
when there were no objections to the leading nature of the questions.
Union. At times when Price gave an example of how some
unfair (as perceived by Price) event had occurred, and that such
would not have happened with a Union at the plant, Laws sim-
ply would say that the Union would not have helped Price.
(1:174–175.)
Price also wore a union button off and on until some date in
November 1999. (1:175, Price.) Agreeing that Price only wore
his union button sporadically, Laws asserts that the first time he
saw Price wearing a union button was in July. (4:746.) More-
over, Laws reports that Price was not outspoken in favor of the
Union, and that Price only would speak favorably of the Union
when things were not going Price’s way, such as when Laws
had to caution Price about something. (4:831.)
From Neptco’s viewpoint, Price chiefly had problems in two
areas—(1) wandering away from his work station, and (2) at-
tendance. Memos were placed in Price’s personnel file con-
cerning these matters, and Price also was disciplined over some
of these concerns. The event triggering Price’s discharge ap-
pears to have been the December attendance report (which
Laws read about mid-January) again showing violations by
Price of Neptco’s attendance policy. Laws decided to recom-
mend discharge. Bad weather delayed implementation of the
discharge decision, but on January 26, 2000 Supervisor Laws,
in the presence of Human Resources Manager Linda B. West,
notified Price that his employment with Neptco was terminated.
Turn now to the documentation, from Price’s personnel file,
covering these events.
So far as the record reflects, Price’s initial notice of an atten-
dance problem came on May 24 with a “nonconformance log”
(R. Exh. 2) to alert him of a developing attendance problem
concerning the months through April. (3:615, West.) Such a
log is simply an “awareness tool” to alert the employee; it is not
a disciplinary notice, both West (2:431–432) and Laws (4:726)
testified. Laws explained the purpose of the notice to Price and
told him that it was not disciplinary in nature. (4:726.)
On June 20, Price, in an act of horseplay, took an air hose
and (with the nozzle about a foot from his face) blew com-
pressed air into his mouth. For this rather unsafe activity Su-
pervisor Laws issued Price a first oral (“verbal”) warning.
(4:726.) The oral warning was documented (R. Exh. 3) for
Price’s personnel file. (2:437.) Although Price asserts that
Laws did not show him the documentation (1:231), Price ad-
mits that he so acted on this occasion and that he should not
have done it. (1:205–207.) The file document specifies, as to
the horseplay, a violation of group II work rule 6 (GC Exh. 11
at 33). The document also asserts that Price violated group II
work rule 4, by “neglecting his job duties,” and work rule 5, by
“inefficient job performance.”
The warning document (R. Exh. 3) was one of the items in
Price’s personnel file that Human Resources Manager Linda
West and Supervisor Douglas Laws considered when they re-
viewed the file when considering whether to recommend dis-
charge to Plant Manager Hensman. (2:437.)
Barely 2 days later, on June 22, Laws issued another docu-
mented “verbal” warning (R. Exh. 4; 3:476) to Price, this time
for attendance problems through May. (2:438; 3:608–609;
4:731, 830–831.) Although Neptco’s policy permitted a written
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
warning for this second warning, Supervisor Laws gave Price a
“second chance.” (3:631–633, West; 4:729, Laws.)
On Saturday, June 26, Laws testified, he again had a problem
with Price’s not staying in his work area. Laws reminded Price
of the situation just 6 days earlier when he had engaged in
horseplay and when Price, according to Laws, had been out of
his work area. Getting tired of “chasing Kenny around,” Laws
documented the matter with an e-mail (R. Exh. 5) to Plant Man-
ager Hensman and Human Resources Manager West. (4:734–
736, 826–827.) Although Price (1:212) was never provided a
copy of the e-mail, when shown a copy at trial, he verified the
accuracy of the contents. (1:213–214.) The text reads (R. Exh.
5):
Today I had a discussion with Kenny about his horse-
playing (air hose) and not staying in his assigned work
area. I told Kenny that he needed to stay in his assigned
work area and that I do not wish to have this type of dis-
cussion with him again, about either of these situations.
Kenny’s reply was “why is everyone always worried
about what Kenny is doing and not anyone else”. My re-
ply to him was that I will handle his situation in the same
manner I do with anyone else, nothing is different for any-
one else.
Price confirms the conversation as described in the e-mail.
(1:213–214.) Laws confirms that Price complained that Laws
was “picking on” him. (4:735, 826–827.) Laws asserts that he
could have issued (but did not) a formal warning to Price, but
instead chose merely to document the conversation is order to
give Price a “break.” (4:735.) He simply wanted Price to
work; he did not want to fire Price. (4:736.)
The next incident occurred on August 26. Laws testified that
Price, neglecting his duties, let the I-Beam machine run nearly
out of resin. (4:737–739, 827–829.) As Laws describes in his
e-mail of August 21 to Linda West and to Alan Yancey (R.
Exh. 6):
Today Kenny Price nearly ran the I-Beam machine out of
resin, the top portion of the material was totally unsaturated,
on several of the ends. The operators were able to save the
machine, but had to hustle. Kenny said he was in the creel
and had went to the back of the machine, and was talking to
David Allen. I told Kenny this was unacceptable and he
needed to stay on his machine and check the required items
on a frequent basis. I suggest that we issue Kenny a warning
of some type (verbal or written). He keeps making the com-
ment that he wished we would go ahead and fire him (I think
that is what he wants).
Although this “discussion note” was in Price’s personnel file
(2:438, West), Laws does not recall that any warning ever is-
sued on the incident. (Presumably Laws’ request simply was
overlooked or put to the side in the rush of business, for the
record contains no evidence that any such warning ever issued.)
Again, Laws testified, Price complained that Laws was “pick-
ing on” him for being out of his work area, and that he “wished
we would just go ahead and fire him.” Laws said that if Price
was not pleased with working at Neptco, that was his choice,
that he could do something about it. “Why don’t you just go
ahead and fire me?” Price asked. Laws does not describe his
response, if any, but testified that he did not want to fire Price,
that he just “wanted Kenny to do his job.” (4:736–739.) Laws
assumes from the “picking on” comment that Price was con-
tending that Laws, in effect, was selectively enforcing the work
rules. Price never said that Laws was favoring others, and in
any event such was not the case, Laws testified. (4:826–829.)
Conceding that he expressed the “go ahead and fire me” senti-
ment to Laws, Price admits that he said it, but that he did so in
jest, and that Laws was aware he was joking. (1:217–218.)
On October 7, matters shifted to the formal stage, with Su-
pervisor Laws issuing a letter to Price as a “a first written warn-
ing” for poor attendance. Despite this written warning, Price
admits that he continued having attendance problems between
October 7 and January 26. (1:227.)
The next incident occurred on January 13. In a hand note,
dated January 13, to Linda West (LBW), Laws wrote (R. Exh.
16) that, as he confirmed at trial (4:744), he had observed Price
socializing with other employees near the breakroom and rest-
room area, and he suggested that the “next warning” issue to
Price. Laws’ request resulted in the generation of another for-
mal letter, dated January 13, from Laws to Price (2:445;
3:617;4:745), the text of which reads (GC Exh. 7):
You received a non-conformance log [R. Exh. 2] on
May 24, 1999 and a verbal warning [R. Exh. 4] on June
22, 1999 for excessive absenteeism or tardiness for any
reason. Additionally a verbal warning [R. Exh. 3] was is-
sued on June 20, 1999 for engaging in horseplay. A first
written warning [GC Exh. 6] for excessive absenteeism or
tardiness was issued on October 7, 1999.
This [GC Exh. 7] is a second written warning for vio-
lation of Group II Work Rule 5 (p. 33) [GC Exh. 11 at 33],
inefficient job performance.
Each employee and their [sic] responsibilities are im-
portant to Neptco. Failure to meet requirements of the
company as outlined in the handbook [GC Exh. 11] may
cause hardships on other employees and result in loss of
business. Your actions must improve, or further discipli-
nary action will take place, up to and including discharge.
On that January 13, Price admits, he did step some 10 to 15
feet away from his inkjet machine to converse with one of his
friends who was walking by in the adjacent aisle across from
the men’s room. Price also concedes that during this conversa-
tion he had his back to his machine. While Price was there
away from his work station, Supervisor Laws came by. Laws
told Price to return to his machine, and if he caught Price again
(away from his work station), he would write him up. (1:181–
183; GC Exh. 3.)
Later that day, on exiting the men’s room, Price met Doug
Crisp, the process engineer on the I-beam machine where Price
had worked before moving to his current position on the inkjet
printer. Standing near the same spot as before, this time by the
door to the employee canteen some 10 feet from his machine,
Price was discussing with Crisp the fact that the I-beam was
being sold and dismantled. As luck would have it, once again
Supervisor Laws approached. Reminding Price of his warning
earlier that day, Laws now told Price that he would write him
NEPTCO, INC. 29
up. When Price told Laws that the two had been discussing
business, Laws, without asking Crisp any questions, said,
“Don’t give me that. You were socializing.” Before the union
campaign, Price asserts, when Laws saw Price 10 to 15 feet
from his machine, Laws had not said anything. (1:183–186.)
Neither party called Crisp to testify. Laws, who testified af-
ter Price did, was not asked about the Crisp incident, and
Neptco does not address it on brief. Presumably, therefore
Neptco does not contest Price’s description of the topic of his
conversation with process engineer Crisp. Perhaps Neptco sees
no need to do so in view of Price’s admission (1:225–226) that
he did what the subsequent warning (GC Exh. 7) stated. That
is, he, in Price’s words, was “off my machine—out of my work
area.” (1:181, 229.) Supervisor Laws confirms that “ineffi-
cient job performance” covers roaming away from one’s job.
(4:247.)
From Price’s own description, it is obvious that, to Supervi-
sor Laws on that January 13, Price (1) had failed to honor the
second chance that Laws had given Price earlier that same day,
and (2) whatever Price and Crisp were talking about, it had
nothing to do with Price’s job at the inkjet printer.
Because of various delays, Supervisor Laws did not receive
or read the attendance report for the year of 1999, dated Janu-
ary 5 (GC Exh. 10), until, he implies, some point after mid-
January. (4:747–748.) As reflected by that report, since his
first written warning of October 7 for excessive absenteeism
(GC Exh. 6), Price had been absent one full day and he had
incurred four tardies (GC Exh. 10; R. Exh. 14).6 By the rule of
the employee handbook (GC Exh. 11 at 21; 2:422), “Three
sequential partial (late, leave early, or leave/return) days of
absence totaling less than 12 hours will be considered as 12
hours absence.” Unfortunately, the handbook does not define
“sequential.” Does the term mean, for example, three tardies
unbroken by a full day of work? Although that seems to be the
interpretation given by Human Resources Manager West at trial
(2:422), where (2:442) she uses the term “three consecutive
deviations,” in practice it appears that she and Neptco simply
count the number of tardies in whatever period of time is being
examined. (GC Exhs. 15, 16 at 2–3, 17.) Even that is difficult
to check, as to certain exhibits in the record, because the crews
work rotating shifts. Thus, what may appear to be a gap, may
be regular off time between the rotating shifts. As this point
was not fully developed, I simply work from the record as it
exists. That record shows, for example, that West counts three
tardies, one each in the months of March, April, and May (R.
Exh. 15), as one 12-hour absence against Price. (2:443.) Ac-
cordingly, I count the one full day of absence plus four tardies
after October 7 (GC Exh. 10) a equal to two full (12-hour) days
of absence, or 24 hours of absence during that period.
Turn back now to the point when Supervisor Laws read
Price’s attendance report for 1999. (GC Exh. 10.) Laws saw
that, since the warning of October 7 (GC Exh. 6), Price had
accrued one full chargeable absence (12 hours) plus the four
partials (all tardies), counting as another 12-hour absence, for a

6 Although Price also was absent on his birthday, November 12 (GC
Exh. 10), birthday absences are not counted as attendance deviations.
(2:446, West.)
total of 24 hours of absence. To Laws, this attendance report
showed no improvement by Price in his attendance problems.
(4:748.) Indeed, the November–December average of 2.5 inci-
dents per month (not counting the birthday absence) of either
an absence or a tardy shows an even greater rate of incidents
than the 1.5 per month average for the first 10 months of 1999,
and not counting the 3 days missed for one funeral and 2 days
of vacation (GC Exh. 10). Moreover, although Laws had not
yet received an attendance report for January, Laws knew that
Price already that January 2000 had been tardy and left early.
(4:749.) In fact, the record (R. Exh. 14 at 3) shows two tardies
and one “leave and return” (4:822), all by January 13. (4:749,
822.) In other words, Price was beginning the year 2000 at an
even greater rate for attendance incidents than he had generated
for the closing 2 months of calendar year 1999. Price had no
other attendance deficiencies before his January 26 termination
(4:822), but, of course, in mid-January Laws could not know
what the future held other than that it looked unacceptable.
On receiving and reviewing the 1999 attendance report for
Price (GC Exh. 10), Supervisor Laws concluded that he could
no longer deal with the problems that Price generated. He
therefore recommended to Human Resources Manager West
that Price be terminated. He so recommended because (3:681):
Kenny had a long history of not doing things. Being out of
certain areas, his attendance was bad. Horse playing, stuff of
that nature, and just, it was just getting old. I couldn’t deal
with it. And I didn’t want him setting an example for new
people coming in the door.
To Laws, the continued attendance problems triggered his
decision (3:681; 4:748) because (4:751, 821) they were the
“last straw.” West confirms that Laws recommended that Price
be discharged. (2:448; 3:619.) They reviewed Price’s person-
nel file, and concluded that they should recommend discharge
based on Price’s (1) continued attendance problems, (2) roam-
ing outside his work area, (3) inattention to his machine, and
(4) horseplay. (3:606, 619.) About January 24 or 25, West
orally so recommended to Plant Manager Hensman who orally
approved the recommendation the same day. (2:453–455.) On
Wednesday, January 26, Supervisor Laws discharged Price.
West attended the termination meeting. (1:186; 3:464; 4:748–
749.)
At his termination, Laws read from a two-sentence termina-
tion letter (GC Exh. 8; 1:186; 3:463, 605; 4:749). The first
sentence informed Price, “Effective today, your employment
with NEPTCO Incorporated has been terminated.” The second
sentence explained that an accompanying package would de-
scribe certain matters pertaining to any continuation of benefits.
[Having overlooked the offer of GC Exh. 8 (1:189, 191), I now
receive GC Exh. 8 into evidence.]
Price asked for specifics, but all Supervisor Laws would say
was “Job Performance.” (1:186–187, 201.) West testified that
it is Neptco’s policy not to give specific reasons beyond the
wide-ranging “Job Performance.” The purpose of the policy is
to avoid potential arguments and the possible creation of a hos-
tile situation. (3:464, 562, 605, 626.) Waiting in the lobby
with Laws and West for taxi transportation to his home, Price
asked West, “Linda, please tell me the reason you fired me.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
As from Laws earlier, the reply from West was: “Job perform-
ance.” (1:201–202.)
West testified that the term “job performance” covers, in ef-
fect, everything—including all the issues covered in the trial
(even as to the other alleged discriminatees), such as profanity,
attendance, attention to the job, and “basically anything that’s
in our work roles.” (3:464–465.)
Responding to Price’s claim for unemployment (GC Exh. 9;
1:191), West (on February 15) wrote, on the form supplied by
the North Carolina Employment Security Commission (ESC),
that Price was discharged for (GC Exh. 9 at 3):
Violation of Group II Work Rule #7: Leaving the job or regu-
lar working place during working hours without authorization
from your supervisor. Mr. Price participated in orientation
when the handbook was revised in detail [no ending period]
Asked why attendance was not mentioned to the ESC, West
rather candidly explained that the ESC does not consider poor
attendance to be misconduct, and if Neptco believes that the
person does not deserve unemployment, then West emphasizes
only those matters that constitute misconduct. (3:613–614,
622.)
Respecting the Government’s contention that the evidence
shows disparity, the General Counsel points to testimony by
Price that, after the Union campaign began (and presumably
after Price made public in May his support of the Union), Su-
pervisor Laws began closely monitoring him, which he had not
done before, and Price noticed that Laws did not do the same
respecting other employees. As to Price, Laws would come by
and say, “A little birdie told me you’ve been in the breakroom
too long,” or “You were wandering there,” or “I’m just making
sure you’re here.” (1:176–177.) By contrast, Josh Fox would
go to the supervisors’ office frequently to use the telephone, yet
Laws “usually” never said anything to him. (1:177.) He Lee, a
splicer from Laos, frequently left his splicing department (40 to
50 feet away) to come into Price’s area to socialize with Yeng
Yang, a Laotian friend of Lee. (1:177–180.) However, there is
no evidence that Lee’s visits to Price’s department were ever
observed by Supervisor Laws or that anyone ever reported such
visits to Laws.
No evidence was presented concerning whether phone calls
by Fox were excessive or beyond what is normally allowed.
Moreover, the Government failed to establish that the personnel
file of Josh Fox does not contain any warnings, or even memos,
for excessive use of the telephone. Apparently there were
none, for Supervisor Laws denies that Fox frequently was away
from his work station. (4:806.) Moreover, Fox appears to be a
poor example of favoritism by Laws. Thus, on December 29,
Supervisor Laws issued Fox a written warning (second) for
profane or abusive language. (R. Exh. 19 at 4; 3:485.) Laws
testified that Fox was so warned for writing “Neptco sucks” on
a production paper that he later submitted. (4:802.) The very
next day, December 30, Fox damaged a machine because, as
Laws describes (4:803), of his inattention to his duties. Laws
recommended termination (4:803.) That same day Fox was
fired. (R. Exh. 19 at 5; 3:485, West) So far as Laws could see,
Fox never wore any union insignia. (4:803–804.) To the extent
that Fox went to the production office and used the telephone, I
find, crediting Supervisor Laws, that such use was not beyond
the privilege normally granted employees. In any event, I find
no favoritism nor disparity respecting the example of Josh Fox.
As for the change respecting Price, recall Laws’ testimony
that, following management’s May meeting with the supervi-
sors, Laws began observing employees closer, and that he is-
sued warnings to employees (and alleged discriminatees)
Parnell and Price—but only because of events on the plant
floor, not because of the meeting with management, and not as
a result of any change in his practice. (4:807–808.)
From the viewpoint of Supervisor Laws, Price brought some
bad habits with him when he transferred from the night shift
about March 1999—such as wandering off his job, and coming
to the production (supervisors’) office just to talk. Laws had to
correct Price almost daily for these deficiencies in his job per-
formance. (3:683–687.) After a couple of months of this, as
the record reflects, Laws began documenting these events. It so
happens that the documentation began after the Union’s orga-
nizing had become common knowledge, after Plant Manager
Hensman had spoken to the employees, and after management
told the supervisors to watch their employees more closely—an
instruction Supervisor Laws admits (4:807) that he followed.
The Government also argues that the evidence supports a
finding that disparity is shown regarding attendance in that
Neptco terminated Price while allowing others with worse at-
tendance records to remain. Specifically, the General Counsel
points to three employees: Sherry Petty, Kendra Burnette, and
Tommy Barlow. West explains that Petty, who accumulated
more poor attendance hours than Price, was allowed some lee-
way because she was switched from an 8-hour shift to a 12-
hour shift, and because she held a critical position, with a skill
difficult to replace, that of loom operator. (3:579–585.) More-
over, Petty’s only problem was attendance. (3:633.) Eventu-
ally, on June 5, 2000 (3:578), Petty was terminated for poor
attendance. With the discrepancy credibly explained, and in
light of the discipline imposed on her, I find no disparity estab-
lished by Petty’s case.
On November 16, Kendra Burnette received her second writ-
ten warning (R. Exh. 18 at 2–3), this time for poor attendance.
(3:483.)7 As of her November 16 warning, Burnette had accu-
mulated 120 hours of absences. (3:568.) Burnette worked on
the crew of Supervisor Destry Watson. (R. Exh. 18 at 1.) Un-
der Neptco attendance policy, an employee on the 12-hour
crews is allowed absences, including partials, of 48 hours be-
fore discipline is imposed. (GC Exh. 11 at 21; 2:423.) No set
number of hours mandates discharge under the policy, West
explains. (2:423; 3:584.) West testified that Burnette, knowing
that she was heading for discharge, never returned to work after
receiving the warning for excessive absenteeism. (3:568–569.)
The General Counsel argues (Br. at 49) disparity on the basis
that Burnette was not terminated. As already noted, Price’s 24
hours of absenteeism (by my count) during the last 2.5 months
of 1999, plus additional attendance problems during the first 13

7 Burnette’s first warning (R. Exh. 18 at 1), on 6–15–99, was for in-
subordination. (3:482, 570.) Supervisor Watson’s note at the bottom
of the warning letter reflects that Burnette apologized to Watson for her
misconduct.
NEPTCO, INC. 31
days of January 2000, prompted Supervisor Laws to recom-
mend discharge for Price. Was this disparity? I discuss this
question in a moment.
At some point after his August 31, 1998 second written
warning for excessive absenteeism (GC Exh. 19), Tommy Bar-
low switched from the crew of Gregory Greene to that of Doug-
las Laws, for on May 20, 1999 Laws issued Barlow another
(GC Exh. 20) second written warning for excessive absentee-
ism when Barlow accumulated 72 hours of absenteeism. (GC
Exh. 17; 3:601–602.) West testified that, for attendance,
Neptco uses a rolling 12-month period (3:593), and that the
additional second warning (rather than discharge) was given to
Barlow because his schedule had been changed when he was
placed on a special product line being established. In view of
the schedule change and new assignment, Barlow was given
another chance. (3:594–595.) The gesture was unsuccessful,
and Barlow quit on September 13 (3:593), after accumulating
another 24 hours of absenteeism because of, it appears, tardies
(GC Exh. 17) following his additional second warning of May
20.
(b) Discussion
No disparity exists, I find, between the treatment given Ken-
neth Price and that accorded to, for particular example, Kendra
Burnette. First, Burnette did not work on the crew of Supervi-
sor Laws. Different supervisors may handle matters differ-
ently. Indeed, Neptco’s disciplinary policy (GC Exh. 11 at 31)
is loaded with discretionary options. For example, any disci-
pline to be imposed can vary “depending upon individual cir-
cumstances.” (GC Exh. 11 at 31; 2:424, West.) Also, although
“progressive corrective action” is normally followed, “this
procedure may be altered by specific circumstances at the em-
ployer’s discretion.” (Id.) And a “verbal” warning need not
precede a written warning. (GC Exh. 11 at 31; 2:425.)
Second, there is no evidence that Supervisor Watson had any
current problem with Burnette other than her attendance. Con-
trasted with that situation, Supervisor Laws had a continuing
problem with Kenneth Price not only as to attendance but also
respecting his habit of walking away (even if only 10 to 15 feet
away) from his work station. There had been past problems, as
well, including the safety violation of using an air hose to blow
compressed air into his mouth. Price’s latest attendance num-
bers were merely the “last straw.” The fact is, Supervisor Laws
had run out of patience cautioning, correcting, warning, and
accommodating Kenneth Price and so he recommended termi-
nation.
Note that Laws skipped the opportunity at least four times to
impose stronger discipline on Price. The first occasion was his
issuance of an oral warning (R. Exh. 4) to Price on June 22, for
attendance through May, when he could have issued a first
written warning. Only 2 days earlier, on June 20, Price had
received his first oral (verbal) warning based on the air hose
incident.
For the second occasion, Laws gave Price a free ride. This
came on June 26 when Price was out of his work area. Laws
could have issued a first written warning then, but opted to give
Price a “break” by simply documenting the matter with an e-
mail (R. Exh. 5).
Number three came on August 26 when Laws sent an e-mail
(R. Exh. 6) describing the depleted resin incident. Although
Laws recommended that a warning of some type issue, none
did because the matter simply “fell through the cracks.” Recall
that this was the incident when Price, in the fashion of a juve-
nile, suggested that Laws go ahead and fire him. The point is,
had Laws been gunning for Price, Laws clearly would have
specified at least a first written warning. Indeed, with the dis-
cretion granted by Neptco’s policy, Supervisor Laws could
have accelerated the discipline and for that incident recom-
mended termination. He did not do so.
Price received a fourth favor from Laws on January 13 when
Laws again gave Price a pass (plus a cautionary warning) on
the first incident of the day. Thus, if Laws possessed animus
against Price, Laws rather strangely bypassed different oppor-
tunities to grease the skids for Kenneth Price.
Finding no animus by Supervisor Laws against Kenneth
Price because of the latter’s union activities, and no evidence of
disparate treatment, I find that the Government has failed to
show, prima facie, that a motivating reason for the January 26,
2000 discharge of Kenneth Price was his open support of the
Union. Accordingly, I shall dismiss complaint paragraph 9 as
to “Kenny” Price.
2. Gordon R. O’Meara
(a) Introduction
One of three asserted union supporters terminated on January
27, 2000 (Donald Parnell and Alesa Tingler being the other
two), Gordon R. O’Meara was employed on the crew of Super-
visor (Robert) Dean Church at the time of his January 27 termi-
nation. (1:129.) Although Neptco’s January 27 letter (GC Exh.
4) of termination to O’Meara merely states that his employment
with Neptco “has been terminated,” the specific reason was an
incident involving the use of “profanity” (actually, vulgar slang
accompanying an obscene gesture, the latter sometimes referred
to as “flipping the bird”). The Government stresses the point
that O’Meara is the first employee at this facility of Neptco
ever fired for uttering “profane” language spoken to another
employee and not directed at a supervisor or accompanied by
actual or threatened misconduct. (Br. at 13.)
The Government’s statement itself demonstrates that more
factors are involved than simply ascertaining the words and
gesture. There is no question that language including “cuss”
words (vulgarities, profanities, obscenities) are uttered on occa-
sion on the plant floor by some of the workers, and also at
times in the production office by some of the supervisors. Af-
ter hearing a substantial amount of evidence respecting this,
and finding that it had reached the cumulative point, I confined
the Government to an offer of proof as to any further. (1:148.)
Respecting the extent of use, I find that it is not uncommon
and is consistent with such utterances heard in manufacturing
plants, machine shops, and construction sites on occasion. That
is, such language may be heard, among other occasions, when-
ever something malfunctions and an employee lets loose with a
curse word or two, or even three, or when someone mashes a
finger. Plant Manager Hensman expresses it as happening, so
far as he has heard, when someone “smashes their finger.”
(2:383, 392.) What Hensman personally has heard, I find, falls
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
substantially short of what may be heard at times on the plant
floor or even in the production office where the supervisors
work on occasion. Even so, when Hensman asserts that he
opposes the use of profanity in the plant (2:384, 392), so as to
guard against any charge of sexual harassment (2:384), or ex-
posing visitors to such (2:384), I understand his policy to draw
a distinction between (1) cursing uttered spontaneously at a
malfunctioning machine, or when a finger is pinched, and (2)
vulgarities, profanities, or obscenities delivered casually in the
presence of other employees or supervisors (possibly creating a
risk of sexual harassment), or especially in the presence of visi-
tors, and especially so if the cursing occurs in a context involv-
ing anger or confrontation.
An important word here is context. Thus, the initial question
here is, “What were the circumstances when the incident oc-
curred?” Was it just when a finger got pinched or hit, or did it
involve words of sexual innuendo in the presence of the oppo-
site sex, or was the situation one of anger and confrontation?
Finally, the end question is what motivated Supervisor Church
to recommend termination? Was it merely the words (one
word, actually) and gesture? Was it that plus the circum-
stances? Or was it O’Meara’s (lukewarm) support of the Un-
ion? For the discharge to be a violation of Section 8(a)(3) of
the Act, as alleged, it has to be the last item because the first
two are in the nature of subjects for an arbitration under a col-
lective-bargaining agreement.
Turn now for an introductory look at the incident. It oc-
curred the evening of Wednesday, January 26, 2000. (1:138;
3:669.) As Supervisor Church was interviewing a job applicant
(a female named Chris Kluesinger, 3:647) in the production
office, sitting before one of the large plate glass windows that
look out into the plant (3:648–651), Church saw that O’Meara
was approaching the office, presumably to ask Church a ques-
tion. Church apologized for the interruption, and asked
Kluesinger to wait a second while Church went out to see what
the approaching employee needed. At that moment, as Church
and Kluesinger were looking through the glass at O’Meara, and
with O’Meara just a few feet from the door,8 they saw O’Meara
throw up a middle finger and yell to some coworker, not in
their view (3:651–652): “You pussy!”
On hearing and observing this, Church turned to Kluesinger
(who was shaking her head and appeared embarrassed) and
asked her to wait while he handled the matter. Church then
went to the door and opened it just as O’Meara had put his hand
on the door handle. This startled O’Meara. Church was angry,
and it appeared to him that O’Meara recognized this. Church
told O’Meara that his conduct was very inappropriate, and
(3:652): “I’m here conducting an interview with a woman.
You’ll be lucky if you just get a warning. You may get termi-
nated for this. And I want you to go back to your machine right
now. I’ll talk with you later.”
According to O’Meara, Church spun him around and told
him to watch his language. O’Meara thought the matter was

8 Church places the distance from the glass window at about 2 feet.
(3:651, 670) O’Meara estimates that he was 8 to 10 from the produc-
tion office when he saw his friend Hank Chatman talking on the pay
phone right outside the production office. (1:139–140; R. Exh. 3.)
settled. (1:140, 154.) Although conceding that the noise level
in the plant was “pretty loud,” O’Meara claims that his com-
ment to his friend Chatman was no louder than the level he was
using to testify. (1:141.) Given the loud noise level in the
plant, and the fact that Church and, apparently, Kluesinger
heard and understood O’Meara’s comment to Chatman, I do
not credit O’Meara. Instead, crediting Church, I find that
O’Meara yelled out his comment while throwing up a hand
gesture of a middle finger.
O’Meara immediately left, and Church went back inside the
production office where he told Kluesinger that he was sorry.
Kluesinger said it was okay, that she had been around factories
and had heard that kind of language. Church told her that such
conduct was not acceptable. Kluesinger said that she appreci-
ated his statement and his action. (3:652, 674.) Supervisor
Church reacted quickly. Church and O’Meara dispute what
was said between them at or near the door, and I address that
later. Kluesinger possibly heard some of the exchange between
the two, but neither party called her to testify. Kluesinger was
hired, but she later resigned. (3:655.)
As this incident served as the primary basis for O’Meara’s
discharge the next day, it is relevant to note that the word
“pussy,” used by O’Meara on this occasion, has an entirely
proper meaning (one that constitutes the primary meaning in
dictionaries), so that it appears in many nursery rhymes and
children’s stories, such as in the lovable verse, “The Owl and
the Pussy-Cat,” by Edward Lear. Recall the memorable first
lines:
The owl and the Pussy-cat went to sea
In a beautiful pea-green boat:
They took some honey, and plenty of money
Wrapped up in a five pound note.
Sadly, as the dictionary explains, the term has acquired a
“vulgar slang” secondary meaning in reference to a woman’s
vulva. In conjunction with the obscene gesture of “flipping the
bird” at Chatman, it is clear that the vulgar secondary meaning
was intended here by O’Meara. Thus, by this foolish and rather
twisted joke, and using vulgar slang with the obscene gesture,
O’Meara was telling his “friend” Chatman that Chatman was
not a man. All in all, it doubtlessly was a rather disgusting and
embarrassing spectacle for a visitor, particularly a female visi-
tor in the midst of male employees, to have to witness.
(b) Knowledge
Supervisor Church denies knowing whether O’Meara sup-
ported the Union. (3:643, 663.) Presumably the time denied
refers to the date of O’Meara’s discharge. There is testimony
that in early June O’Meara attended a union meeting at the
home of Alesa Tingler, with some 12 to 20 employees attend-
ing, although they were not all present at once, and that Church,
then simply a lead person, also attended and assertedly should
have seen O’Meara there. (1:30, 129–130; 2:295–296; 4:877–
880.) Church admits that he attended a small gathering at Tin-
gler’s home, but describes it more as a small social gathering of
about seven or eight persons, not including the person he much
later (around October 1, 3:641, 663) met who was introduced as
O’Meara. With as few people as were there, Church asserts
NEPTCO, INC. 33
that he would know if O’Meara had been one of them. Church
asserts that O’Meara was not there—at least while he was pre-
sent. (3:645–646, 663–669.)
The evidence is weak respecting any identification at this
meeting, with the strongest, that both O’Meara and Church
were at the same meeting, coming from Union Representative
Sawyer who admits (4:879–880) that he does not know whether
Church saw O’Meara. O’Meara makes no claim that he saw
Church at the meeting, much less that Church saw him, and
Alesa Tingler, at whose home the meeting was held, was not
asked about the topic. I find the evidence about the June meet-
ing insufficient to show any knowledge on the part of lead per-
son Church. Were I to reach the point, I would credit Church’s
positive testimony that the person he later met as O’Meara was
not at the gathering (union meeting) when he was present.
In view of this finding, I need not address two other issues
(not briefed by either party). First, even if lead person Church
had seen O’Meara there, would mere presence at an early union
meeting properly translate into “knowledge” that the mere at-
tendee is a union supporter (as distinguished from someone
who comes seeking information, or from simple curiosity, or
anticipating free snacks and sarsaparilla)? Indeed, if mere at-
tendance so translates, then Church would be so labeled, except
(3:646, 663–664) he admittedly debated in support of Neptco at
the meeting.
Second, assuming what otherwise would constitute “knowl-
edge” flowing from seeing O’Meara at the early June meeting,
would such knowledge by Church, acquired while he was not a
statutory supervisor, carry over and be charge against Neptco
the moment that Church became a statutory supervisor? Stated
in broader terms, does all knowledge of union matters (such as
names of card signers) gained while a mere employee, convert
into the employer’s knowledge bank once the employee be-
comes a statutory supervisor? I postpone discussion of this
question for the moment.
According to O’Meara, about 2 weeks after this union meet-
ing, he signed a union card, “wore one of the buttons” (pre-
sumably a union button worn in a visible position) for an un-
specified time, and talked with other employees at work about
the Union. (1:129–130.) O’Meara does not claim that Church
was a witness to any of this, and he specifically does not assert
that, after Church became a statutory supervisor, that O’Meara
wore a union button and that Church (or anyone in manage-
ment) either commented about the button or looked directly at
the button.
Earlier I described the alleged mid-September 8(a)(1) con-
versation between O’Meara and (Robert) Dean Church.
Church is alleged to be a statutory supervisor as of the conver-
sation. Although crediting O’Meara concerning the conversa-
tion, I concluded that I would dismiss the allegation because
there was no showing, as of mid-September, that Church was
either a statutory supervisor or a statutory agent. As Church’s
schedule (R. Exh. 29) reflects, he was not working with crew C
in mid-September. Even if the term “mid-September,” or
“Middle part of September 1999” per complaint paragraph 8(a),
were interpreted to encompass the 2 days of September 22 and
24 when Church was serving in the capacity of (R. Exh. 29) a
“Shadow Supervisor” (presumably simply observing while
following a statutory supervisor around), that title would not, of
itself, establish even statutory agency, much less the capacity of
a statutory supervisor. I find that the mid-September timeframe
would not encompass any of the dates of September 27 to Oc-
tober 21 (R. Exh. 29) when Church served on crew C as an
“Acting Supervisor.”
Because I have credited O’Meara concerning the mid-
September conversation, I now must address the question of
possible carry-over knowledge. That is, does the knowledge
carry over and attach to both Church and Neptco as of October
25 (when Church took charge of crew C) and forward to Janu-
ary 27 when Church, and Neptco, terminated O’Meara? First,
recall that the knowledge would be merely that O’Meara told
Church that he favored the Union,9 but that he did not care one
way or the other. (1:134, 160–161.) Thus, even with
O’Meara’s joke question to Church (what would Neptco pay
the employees to keep the Union out), nothing in the conversa-
tion suggested that O’Meara would do anything for the Union
other than, possibly, vote for it should the matter come to a
vote. O’Meara admits he was not wearing either a union T-
shirt or a union button as of the conversation. (1:162.) Thus,
the “knowledge” flowing from this conversation would be that
O’Meara simply would be one of those who possibly would
vote for the Union in an election, but that his support was
lukewarm, and he wore no union insignia promoting the Union.
That kind of generic “knowledge” of lukewarm union senti-
ments hardly supports a finding of animus by Neptco, and in
any event is not knowledge of “union activity.” As to the latter
point, see Drug Plastics & Glass Co., 309 NLRB 1306, 1310
(1992), enf. denied on other grounds 44 F.3d 1017 (D.C. Cir.
1995).
Notwithstanding the foregoing, if it is assumed for the mo-
ment that Church (and therefore Neptco) was determined to
eliminate any possible union supporters whenever the opportu-
nity to do so arose, we are still back to the question of whether
mid-September knowledge by nonsupervisory lead person
Church of lukewarm union sentiments on the part of employee
O’Meara carried forward and attached to Church and Neptco as
of October 25. I find the answer to that question to be no. If
the answer were otherwise, then whenever an employer pro-
motes a rank-and-file employee to supervisory status, the em-
ployer instantly would be charged with all the knowledge pos-
sessed by the new supervisor of all confidential union activities
(including the identities of card signers) of which he was aware
as of the time of his or her promotion. Probably no employer
would be interested in being so charged. Accordingly, I find
that knowledge acquired by an employee of the union activities
and union sentiments of other employees is not carried forward,
and charged against the employer, when the employee is pro-
moted to statutory supervisor. To find otherwise would author-
ize employers to require such newly promoted employees to
disclose all such confidential knowledge that they possess (on
the theory that the requirement would be justified because any
action motivated by that early knowledge could bind the em-
ployer now). Certain risks are inherent with any promotion. I

9 Even this was only after counsel, on cross-examination, seemed to
push O’Meara into reporting that as fact. (1:161–162.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
find that Neptco is not automatically charged with whatever
knowledge lead person Church gained through his mid-
September 1999 conversation with O’Meara.
Finally, if Supervisor Church, acting in January on his mid-
September knowledge that O’Meara’s sentiments favored the
Union, were found to have fired O’Meara because of those
sentiments as expressed in mid-September, then such action (if
proved, including by proper inference) would be chargeable
against Neptco.
(c) O’Meara terminated
O’Meara places the (obscenity) incident at about 8:30 p.m.,
observing that interviews of job applicants, when held, are usu-
ally shortly after the 7 p.m. shift change. (1:138, 143, 154.)
Church recalls the time as being about 9 p.m. (3:699.) After
the incident, Church spent another 15 minutes or so completing
his interview with Kluesinger (3:652, 669), and then he appar-
ently spent some time drafting or typing an e-mail that he sent
to West at 9:40 p.m. At 9:40 p.m., about 45 minutes or so (I
find) after the incident, Church e-mailed Human Resources
Manager Linda West. In his e-mail (R. Exh. 27), in which
Church describes the incident, Church begins, “Linda, I need
either a formal written warning or a termination paper for
Gordon O’Meara.” The e-mail concludes (R. Exh. 27):
I am writing this as an official documentation stating this ac-
tion which probably falls under a sexual harassment more
than a group II #6 work rules violation in the hand book.
Thank you. RDC
The e-mail bears the actual date of January 26, but a refer-
ence in the text is to January 27. The latter date is based on the
plant’s business calendar which dates a night shift as the fol-
lowing day—January 27, here. (3:530, 653–654.) After send-
ing the e-mail, and reconsidering the seriousness of what he
thought could be construed as sexual harassment, Church (who,
with other supervisors some 3 to 4 weeks earlier, had attended a
sexual harassment seminar, 3:646–647) left a voice mail for
Linda West in which he specifically recommended that
O’Meara be terminated. (3:526–527, 653, 673.)
O’Meara and Church disagree as to further contacts that
shift. O’Meara asserts that later in the shift, some time between
2 and 5 a.m. (1:143, 154–155), Church called him to the pro-
duction office and told O’Meara that he was a good employee,
and did what Church asked without complaint, but he (Church)
probably would have to issue him a written warning over the
incident. O’Meara asked why, saying that he thought the mat-
ter was settled earlier when O’Meara said that he would watch
his mouth. Church replied that it was because it occurred dur-
ing Church’s interview of the female job applicant and there-
fore the incident likely would be viewed as “sexual harass-
ment.” O’Meara wondered (to himself, apparently) how there
could be sexual harassment when the female (Kluesinger) did
not work for Neptco, but his description suggests that he did
not ask Church this question. (1:143, 155.)
Church’s version expands the contacts. First, at some un-
specified time after the incident, Church went out and spoke
with O’Meara and (presumably) then with Chatman. Church
went to O’Meara to ascertain to whom O’Meara had hollered
his remark and given the hand gesture. Learning that it was
Hank Chatman, Church went to Chatman and told him, “You
guys shouldn’t be yelling across the plant.” Chatman said
okay. (3:671.)
Still later, apparently, in the shift, O’Meara, as Church as-
serts, came to Church, expressed concern about his job, and
asked whether he was going to be terminated. “Gordon, you’ll
probably be terminated,” Church replied. Reportedly, O’Meara
was not happy at that news. (3:654.)
Church asserts that on the third occasion after the incident
(the time and location of the third conversation are not de-
scribed), O’Meara apologized to Church and stated that, at the
time of the incident, he was unaware that (Kluesinger) was in
the production office with Church (3:672) and that (3:676) he
had just been joking with Chatman. However, as Church re-
ports, before the incident Church had taken Kluesinger on a
tour of the plant. That tour had included a stop at O’Meara’s
machine so that Church could explain its operation to
Kluesinger. Then Church and Kluesinger returned to the pro-
duction office to talk. Thus, there was no way that O’Meara
would not have known that Church was in the production office
with Kluesinger. (3:672–673.) The implied reference here is to
Church’s earlier testimony that the employees know that
Church interviews job applicants in the production office and
that such interviews are not to be interrupted. (3:648.)
The implication of O’Meara’s testimony is that he concedes
the fact of interviews in the production office, except he points
to the lateness of the hour as an excuse for his surprise to learn
that an interview was taking place. (1:142–143.) However,
that defense is largely neutralized by Church’s report, described
above, that he had just escorted Kluesinger on a plant tour—
which included a stop where O’Meara was operating his ma-
chine. O’Meara did not return to the witness stand during the
rebuttal stage to address these extra conversations described by
Church. I credit Supervisor Church’s account of the conversa-
tions during the shift of January 26–27, 2000, including the
extra conversations not mentioned by O’Meara. What hap-
pened, I find, is that O’Meara was more intent on acting fool-
ishly toward Chatman (by hollering a vulgarity and making an
obscene gesture) than he was in paying attention to the work
environment and the real possibility that job applicant
Kluesinger was still in the production office being interviewed.
When O’Meara came to work the following evening, January
27, 2000, Supervisor Church, handing O’Meara a letter of ter-
mination (GC Exh. 4), advised O’Meara that he no longer was
employed at Neptco. (1:144–145.) Because of a conflict, Hu-
man Resources Manager West was not present. (3:528.)
O’Meara asserts that he reminded Church of an incident some 2
weeks earlier when O’Meara, seeing Church with his safety
glasses pushed up on his head, had pointed to them as a joking
comment on the fact that Church is always reminding O’Meara
to wear his own safety glasses. O’Meara reminded Church
that, on the earlier occasion, Church had told him, “Don’t you
turn this shit around on me. I’ll have your goddamn ass on that
chopper so fast it’ll make your head spin.” To this reminder by
O’Meara, Church, looking O’Meara straight in the eyes, replied
[direct address pronouns supplied], “You’re fucking crazy. I
don’t talk to people that way.” (1:144, 164–168; 3:656.)
NEPTCO, INC. 35
Denying most of the foregoing reference to profanity and ob-
scenity, Church concedes that on one occasion when he got
upset with O’Meara he told O’Meara that if he could not keep
his safety glasses on and watch his machine, “I would have his
[your] ass at the chopper.” The chopper, as Church explains, is
a dirty machine that no one wants to operate. (3:657.) As to
this dispute, O’Meara testified more persuasively, and I credit
his version that Supervisor Church spoke at O’Meara’s termi-
nation interview as O’Meara has described.
At one point on cross-examination (3:673) Church indicates
that his motivation that O’Meara be terminated was based not
only on the obscenity incident but also on the fact that he con-
stantly had to walk around and tell O’Meara to get back to
work on his machine. (3:673.) Church had never issued
O’Meara a written warning for being off his machine, but mat-
ters were “getting close to that.” (3:674.) Church was short
handed and wanted to salvage O’Meara who did good work
when he remained on his machine. (3:675.)
On direct examination Church asserts that his voice mail to
West pushed for termination because Church did not want
O’Meara’s misconduct to set an example for Church’s crew.
(3:654.) On cross-examination Church adds that O’Meara’s
conduct violated a work rule (none specifically identified in his
description) plus the “sexual harassment” aspect. (3:674.)
To the extent that Church’s recommendation to terminate
O’Meara may have been motivated because of a violation of a
work rule pertaining to not leaving one’s work station, I find
that such was not conveyed to West either in the e-mail (R.
Exh. 27) or the voice mail. Clearly the only “work rule” viola-
tion that West considered and addressed to Plant Manager
Hensman was one dealing with a “slang obscenity” occurring
when Supervisor Church was interrupted during his interview
of a job applicant. (3:526–528, 550.) However, no specific
work rule is cited, and the profanity ground appears in two
work rules in group I (rules 2 and 8) and one in group II (rule
6).
The group I rules (the violation of which can result in imme-
diate termination per GC Exh. 11 at 31) provide (GC Exh. 11 at
32):
2. Insubordination, including but not limited to: re-
fusal to work, refusal to carry out a work assignment, abu-
sive/profane language, assault on a supervisor, or disre-
spectful attitude.
8. Threatening, intimidating, coercing, interfering, or
using abusive/profane language with another employee,
management representative, or any other individual au-
thorized to be on Company property.
The Group II rule provides:
6. Engaging in roughhousing, practical jokes, horse-
play, fighting, or use of profane or abusive language.
Turning to the sexual harassment policy, which was the pri-
mary concern of Church, the text of that policy reads (GC Exh.
11 at 34):
Making sexual advances or sexually harassing another
employee is against Company policy. If any employee
feels he/she is being sexually harassed, the instance(s)
should be reported immediately to his/her supervisor or
the Employee Relations Manager. A confidential investi-
gation will take p[lace] and a written record made. Man-
agement of NEPTCO does not condone sexual harassment
and any employee found guilty of this transgression will
be subject to disciplinary procedures.
Sexually-harassing conduct in the work place, whether
committed by supervisory or non-supervisory personnel, is
prohibited. This includes, but is not limited to: offensive
sexual flirtations; advances; propositions; verbal abuse of
a sexual nature; graphic verbal commentaries about an in-
dividual’s body; sexually degrading words used to de-
scribe an individual, and any offensive display in the work
place of sexually suggestive objects or pictures.
Plant Manager Hensman himself indicates that, in general,
O’Meara was discharged for making a profane gesture near
where Supervisor Church was interviewing a job applicant.
(2:383.) Asked what made this event worthy of discharge (a
discharge he approved, 2:383), Hensman answered (2:384):
Well, the—we had been going through making up our super-
visors and employees sensitive to sexual harassment, that kind
of thing, and we really don’t condone, obviously, any kind of
profanity, especially in this nature where we’re interviewing a
prospective new employee. So that’s why it came to this—
this discharge.
Both West (3:527, 550) and Hensman (2:393) stress the con-
text in which the incident occurred as being the reason for not
considering a warning rather than the penalty of discharge, with
that context being the gross nature of the vulgarity and the fact
that it occurred within a few feet of a female job applicant
when the supervisor was interviewing her in the production
office.
As Neptco’s counsel stated at trial, Neptco has no duplicate
past example of this incident. (3:533.) To show consistency in
imposing discipline for an event that had extensive cursing,
however, Neptco cites the example of Althea Clark and Mary
Williams who were fired about January 8, 1999 after they,
meeting with Supervisor Chris Worley the night of January 7 to
discuss a nonwork matter concerning the two employees, esca-
lated their discussion into a dispute and then into a heated ar-
gument with angry cursing at each other. Supervisor Worley
sent them home and then told Linda West that he wanted both
fired. They were discharged. (3:531–532, 553–554; 4:697–
705, 720–721.)
Among various examples,10 the Clark/Williams incident ap-
parently is the closest that Neptco has for consistency, yet even
this incident is only remotely similar to our situation. It does
show this, however: When a supervisor personally determines
that an incident not only has crossed the line from merely unac-
ceptable and punishable into termination territory by virtue of
being excessively gross and inexcusable, then it appears that

10 Supervisor Worley asserts that he once issued Mickey “Mitch”
Snyder a written warning, about December 1999–January 2000, for
using profanity. (4:722.) No copy of the claimed document was intro-
duced. Worley did not testify persuasively as to this, and I do not credit
his account.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
Neptco supports the supervisor and terminates the employee
(provided that the misconduct is prohibited by one of Neptco’s
rules).
That returns us to the question of what actually motivated
Supervisor Church. Was he really so embarrassed and of-
fended by O’Meara’s misconduct that he sincerely thought that
O’Meara had passed the point of no return? Or did Church
gleefully balloon this small bit of vulgar joking—serious but
limited—into a crime demanding industrial execution in order
to get rid of a union supporter?
(d) Conclusions
Finding that the Government failed to show, prima facie, that
a motivating reason for Neptco’s discharge of Gordon O’Meara
was his asserted union activities, I shall dismiss complaint
paragraph 9 as to him. Based on my findings, knowledge by
Neptco of O’Meara’s union sentiments is not established by the
evidence. Even if knowledge is somehow deemed established,
I still would find no prima facie case of a violation. No animus
against O’Meara is shown (and, by his own admission, when
O’Meara spoke to lead person Church in mid-September,
O’Meara, at most, voiced only lukewarm sentiments favoring
the Union), nor is there any evidence that O’Meara was treated
in a disparate fashion by his discharge. The evidence shows, I
find, that Supervisor Church was personally embarrassed and
angered by O’Meara’s vulgar and obscene misconduct just a
few feet from where Church was interviewing a female job
applicant. Church’s immediate and strong reaction to that mis-
conduct reflects that it was the misconduct—not the expression
of some tepid support for the Union over 4 months earlier—that
was the sole basis for supervisor Church’s recommendation that
O’Meara be discharged. Plant Manager Hensman confirms that
such misconduct was the basis of his approval of the discharge
recommendation. Accordingly, I shall dismiss complaint para-
graph 9 as to Gordon O’Meara.
3. Donald R. Parnell
(a) Facts
Hired September 22, 1996, Donald R. Parnell operated the
huge LFE machine on the Flex line under Supervisor Douglas
Laws when Laws fired him on January 27, 2000. (2:292–293,
299, 303–304, 375; GC Exh. 13.) Laws describes the machine
as “huge,” about 16 feet tall, and almost as large as the court-
room where this case was being tried in Morganton. (4:783.)
The parties stipulated that Parnell was a leading in-house or-
ganizer for the Union, and that Neptco was aware of that fact.
(2:295–297.) Supervisor Laws concedes that he was well
aware of Parnell’s status as a leading organizer for the Union
(3:680; 4:786–787). Human Resources Manager West concedes
her knowledge that Parnell wore union insignia (3:552), and
Plant Manager Hensman freely acknowledges (2:371) that
Parnell, who talked with him frequently about different aspects
of the organizing campaign, appeared to him to be the leading
supporter of the Union among the employees. In short, knowl-
edge is established.
Before his discharge in late January 2000, Parnell had never
received a written warning (2:306, 309, 337; 3:625), and none
was in his personnel file when he was terminated (4:819).
However, from August 5, 1997 to April 22, 1998, Parnell had
been given oral notice, as documented for his personnel file (R.
Exh. 8 at 1–5), on four occasions of rule infractions (extended
breaks, carelessness—machine ran dry, poor housekeeping of
his work area,11 and poor attendance). Parnell admits as to a
couple of these past incidents, has no recall of the earliest one,
and, while admitting that the machine ran dry, denies that he
was careless and asserts that he was on lunchbreak when it ran
dry. (2:328–333.) All four oral documentations were by Greg
Greene, Parnell’s supervisor at the time. Although objecting on
other (overruled) grounds (2:328; 3:500; 4:859), the Govern-
ment did not object to evidence about these pre-1999 matters
on the basis of relevance. There is no evidence that they were
weighed as a factor in the decision to discharge Parnell, and
they expressly (4:867–868) were not offered for that purpose.
They were offered as bearing on motivation in that they show
that Neptco wrote up similar conduct even before the union
organizing began. (4:868–869.)
For attendance matters, the employee handbook provides
that everything is considered in a “rolling” 12-month period.
(GC Exh. 11 at 21; 2:422; 3:578, 593, 595; 4:830.) No lan-
guage in the handbook expressly so provides as to infractions
of other rules. Even so, Human Resources Manager West testi-
fied that the same rolling 12-month policy (referred to as a
“sundowner” period or policy, 3:589) is applied to other infrac-
tions. (3:589, 633.) Thus, while warnings even 20 years old,
for example, physically remain in a person’s personnel file,
anything older than 12 months is not weighed in making a cur-
rent decision (in “determining the next level” of discipline), and
this “sundowner” policy was applied as to the four alleged dis-
criminatees here. That is, West assures us that nothing over 12
months old was counted against the alleged discriminatees.
(3:589–591.)
In late January 1999, Parnell was one of about eight (2:318)
employees who won Neptco’s prestigious Quality Achievement
Award (QAA). (2:300, 317–318, 395.) The QAA is second
only to the Employee of the Year Award. (2:300.) Although
Neptco’s president made the announcement in January 1999,
the actual award ceremony was held at the company picnic in
early May when trophies were given to Parnell and the other
employees by Neptco’s president. (3:623.) West testified that
Parnell had not been a good worker the first half of 1998. He
received the award, West testified, because Neptco wanted to
reward him for his turnaround during the second half of 1998.12
(3:622–623.) However, West asserts (3:624), Parnell’s “per-
formance level in 1999 and 2000 was not the level that it was
during the last half of 1998.” This is not necessarily inconsis-
tent with the view of Supervisor Laws that in 1999 Parnell was
a “good” employee who “did his job.” (4:811.) What Supervi-
sor Laws meant, I find, is that Parnell “did his job,” and was a
“good” employee, when he stuck to operating his machine as
opposed to his roaming around the plant. Laws specifically

11 “Good Housekeeping” is required, under pain of discipline, under
Neptco’s safety policy. (GC Exh. 11 at 27–30.)
12 Actually, the last critical item in Parnell’s file for 1998 is an April
22 “verbal” warning for attendance.
NEPTCO, INC. 37
makes this distinction elsewhere in his testimony. (4:781, 785–
786.) I address the asserted roaming later.
Parnell’s personnel file contains two negative notes for 1999.
The first is a May 24 nonconformance log (R. Exh. 8 at 6) alert-
ing Parnell that his attendance problems had reached the danger
zone. (2:333–334, 337; 4:780.) The log is not a warning, just
an “awareness tool,” a “wakeup” notice. (2:431–432; 3:492–
493; 4:725–726, 810–811.) The second negative note pertains
to a glue spill at Parnell’s LFE machine. On August 8, Parnell
failed to tend his machine. As a result, the machine pumped
nearly 55 gallons of glue onto the floor. The spill was a “huge
mess,” requiring the use of four bags of rags, the help of other
operators, and nearly an hour to mop and clean, and even then
the floor was left “sticky” for awhile. Parnell had gone to test
some glue in the quality control department, while his coworker
(partner) on this two-person operation had left for lunch, even
before Parnell left to test the glue. Parnell apologized to Laws,
explaining that he had tried to “work ahead” by taking a “short-
cut” around the standard procedure. [By “shortcut” apparently
is meant that Parnell did not wait to make sure the pumping
went smoothly, but instead bypassed that step of monitoring to
go test the glue at quality control, thereby leaving the machine
untended since his coworker was at lunch.]13 (4:783–785, 816–
817, Laws.) On August 8, Laws emailed (R. Exh. 8 at 7) Linda
West, describing the event essentially as set forth above.
Parnell confirms that the e-mail description is “pretty accurate.”
(2:334.) In any event, I credit the description given by Laws.
No other critical notes reached Parnell’s personnel file until the
January 26 incidents that led to Parnell’s discharge.
Before summarizing the discharge incidents of January 26
(they pertain to “socializing” and being away from the work
area), and the subsequent decision process, I must return to the
asserted “roaming” of Parnell. West claims that several super-
visors had observed the “extensive” roaming by Parnell (no
names, fact description, or timeframe given), that she also had
observed such (no timeframe stated or factual description), and
that she was satisfied that Supervisor Laws had given Parnell
“fair warning numerous times to stay on his machine.” (3:497,
499.) Laws complains that Parnell, who had a “history”
(4:813) of roaming, would even come into the production office
and “look over my shoulder sometimes, just to see what I was
doing.” Laws would have to stop what he was doing and move
Parnell “on his way.” (4:781.) By January 26, Laws was tired
of the “repeat sessions” with Parnell. “I was sick of dealing
with” those sessions. “I was tired of dealing with it.” (4:789.)
Presumably Laws was “sick” of the roaming because it
surely, with Parnell’s “history” of roaming, had been going on
all during 1999. Yet there is not one note in Parnell’s file about
“roaming” or these asserted “repeat sessions.” Any remarks in
the file at all about being away from the machine pertain to
other incidents such as the August 1999 glue spill, and none of
those remarks assert that Parnell had been away “roaming.”
Nor is there a single note in the file by Laws complaining that
Parnell comes into his office and looks “over my shoulder,” and

13 On brief (Brief at 44), Neptco merges the August 1999 glue spill
(R. Exh. 8 at 7) and the January 1998 “let LL machine run dry” incident
(R. Exh. 8 at 2, 3).
none by Laws documenting any other “roaming” by Parnell.
And as quick as West is to remind others to be sure and docu-
ment matters (as she did with her August 25, 1997 e-mail (R.
Exh. 32) to supervisors Greg Greene and Robert Coffey), West
obviously saw no need either to remind Laws and these other
unnamed supervisors to submit e-mails for Parnell’s personnel
file, nor did she remind herself to do likewise. As “Poor Rich-
ard” phrased it in “Poor Richard’s Almanack” of 1742:14
He that sows thorns, should not go barefoot.
Turn now to the incidents of January 26, 2000. The first one
involves a morning trip to the warehouse. Parnell testified that,
as part of his job (2:307, 308), he went to the warehouse area to
obtain some packing materials. [The plant layout diagram, GC
Exh. 3, shows Flexline at the lower right of the diagram, on the
OSP side of the plant. At the top right side is “Receiving” with
what appears to be racks nearby. Presumably this is where
Parnell went, rather than to the far left side of the plant where a
“Warehouse Area,” with racks, is shown near the shipping de-
partment. Presumably those racks are for items being shipped,
and probably would not have materials or supplies that the
operators would use.] While there, Parnell noticed a shortage
of cones. On his return, Parnell met Supervisor Laws, and he
informed Laws of the cone shortage. Laws told him to let (lead
person) David (David Allen, apparently)15 worry about that
and for Parnell to “stay on your job.” (2:307; direct address
pronoun substituted.)
On cross-examination, Parnell confirmed as “pretty accu-
rate” (2:335) a January 26 file memo by Laws, the text of
which reads (R. Exh. 8 at 8):16
On the morning of 1/26/00, at appx. 7:30 a.m. during
the walk through with the night crew supervisor, I ob-
served Donald (Donnie) in another work area (Looms). I
pulled Donnie aside and asked him to return to his ma-
chine and if he needed mat’l’s or anything to see his lead-
person and stay in his work area.
Later the same day appx. 2:15 p.m., I observed Donnie
in the production office area, Donnie seen me coming to-
wards the office and moved on. Donnie was socializing!!!
At trial Laws expanded on his memo to Parnell’s file to state
that as he and the night supervisor, Chris Worley, were making
a tour of the plant, they met Parnell walking from the loom area
toward the LFE machine at the “opposite” end of the plant.
(4:787.) On the diagram (GC Exh. 3), “OSP (Looms)” is
shown at both top middle and bottom of the right side of the
plant. Thus, Parnell very well could have been coming from
the receiving racks, at the very top right of the diagram, as he
proceeded through Looms and on down toward his LFE ma-
chine in Flexline.
Laws testified that on stopping Parnell and asking him why
he was back in the loom area, Parnell replied that he was trying
to get some materials. In answer to further questions, Parnell

14 Benjamin Franklin, Writings 1223 (Library of America, 1987).
15 David Allen apparently is one of Supervisor Laws three (3:679)
lead persons on the day shift. (1:137, 192–193.)
16 The second paragraph pertains to the second incident of that day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
replied that he normally asks his lead person or Laws when he
needs materials, and that on this occasion he had not asked his
lead person. Laws stated that Parnell did not have access to the
“system” [a computer system, apparently] to adjust the inven-
tory numbers and therefore he should ask his lead person. “If
you can’t get your materials, come see me. I’ll take care of
them.” At that point Laws told Parnell to return to his machine.
On cross-examination Laws declared that in fact it was unusual
for an operator to be going after supplies. (4:787–788, 811–
812.) I do not credit the extra conversation that Laws would
now add to his memo. He makes it sound as if he preached to
Parnell on that occasion. Laws was not persuasive in testifying
about that. Given the fact that Supervisor Worley was waiting
for Laws, the likelihood is that Laws was about as brief as is his
memo, and Parnell confirms that the description in the memo is
“pretty accurate.” However, I credit Laws respecting his testi-
mony on cross-examination that it is unusual for an operator to
be going after supplies. He testified in a persuasive and defini-
tive way. In fact, the implied existence of a computer system
(presumably keeping track of inventory) may well be the reason
that it would be unusual for an employee to be going after ma-
terials.
The second incident of that date already is briefly described
in the second paragraph of the above-quoted file memo by
Laws. In very brief testimony, Parnell states that he went on
break at approximately “2:00, 2:15.” On his way to take his
break in the smoking area, Parnell reports, “I stopped and spoke
with17 Alesa Tingler and Janet Barker, and I seen Doug [Laws]
in the Rewind area.” Laws saw him, Parnell acknowledges,
and Laws motioned for them to “move along.” Parnell states
that he went back to his job, remembered that he needed to “get
my cigarettes and went back to get my cigarettes.” (2:307–
308.) Parnell apparently is saying that he somehow left his
cigarettes in the area where he had been conversing with Tin-
gler and Barker, and he went there to retrieve them. The ciga-
rettes would not have been in the smoking area because, recall,
Parnell was on his way “to” the smoking area when he stopped
to talk with Tingler and Barker. Thus, under Parnell’s version,
he either lost out on his smoke break or talked through it there
at the production office.
Alesa Tingler appears to be describing this same incident as
being when she had started for a restroom break about 3:15
p.m. As she walked by the production office, she waved at the
employees she saw there: Parnell and Janet Barker. “Janet
waved for me to come in the office and—and asked me a ques-
tion, and I talked to her for a minute or two and then went on
around the corner to the bathroom.” (2:257.) On cross-
examination Tingler suggests that she and Barker may have
conversed the minute or two “at the door” to the production
office. (2:269–270.) This indicates that what happened, and I
so find, is that initially it was Parnell and Barker conversing
inside the production office. (Recall that the larger section of
the production office has large glass windows looking out into
the plant.) When Tingler stopped, Barker came to the door,
followed shortly by Parnell, with the trio moving to just outside

17 Not “smoked with” as incorrectly rendered at 2:307:21–22.
the door shortly thereafter. That is where they were when Su-
pervisor Laws came by not long thereafter.
Supervisor Laws’ description is a bit more detailed. On this
occasion, Laws reports, he was on the OSP side of the plant
(right side, GC Exh. 3), near the breakroom there,18 when he
was paged to call shipping. On making that call from a tele-
phone near the canteen, he was asked to check on a spool that
was a rush job. Laws’ line of march from the canteen would be
south, or down,19 toward the production (supervisors’) office.
(4:758–760.) The row of rooms that includes the canteen runs
vertically for some distance, stopping several feet from the
production office, with an open working section and then a
splice section followed by a branch of the aisleway turning just
before (above, on the diagram) the production office and going
left (west) through a doorway that leads into the big middle
section of the plant, the splice (bottom), rewind (middle), and
composites (top) sections. (GC Exh. 3.) As much of the pro-
duction office, including the entrance, is on a line with the ver-
tical row of rooms that includes the canteen, someone, such as
Laws, would be able to see only the eastern (right) end of the
production office from a telephone near the door to the canteen.
As Laws proceeded and drew closer to the production office,
he noticed three employees having a conversation just outside
the door to the production office. The three were Donald
Parnell, Alesa Tingler, and Janet Barker. [Barker works at
some position in the office. (2:269, Tingler.) It is unclear
whether Tingler is referring to the main office, at the far left
side of the plant diagram, or to the production office as the
place where Barker works.] Passing close by the trio, Laws
motioned for the group to move on. As Laws entered the splice
and rewind sections he looked back (apparently through what is
a doorway as shown on GC Exh. 3) and saw the trio still con-
gregated there. When Parnell and Tingler observed Laws look-
ing back at them, the trio broke up and scattered. (4:758–759,
788, 812–813.)
Time estimates of this incident vary widely. As quoted ear-
lier, Laws’ hand-printed note (R Exh. 8 at 6) puts the time at
2:15 p.m., Parnell describes it as “2:00, 2:15” (2:307), and
Alesa Tingler, as mentioned, estimates the time as about 3:15
p.m. (2:257) And that is not all, for the earliest time, and
document, appears to be an e-mail (R. Exh. 25 at 6) at 1:50
p.m. that same date from Laws to West concerning three inci-
dents involving Tingler on that date before he sent Tingler
home, with the incident in issue here being the second one
itemized (but not described) in Laws’ e-mail to West. No party
offered Tingler’s timecard in evidence (for the purpose of
learning when Tingler clocked out) to assist in ascertaining the
time of the sequence of events.
Not fully developed in the record, the time of the incident
has potential importance only because Parnell asserts (2:307)
that he was heading for his afternoon smoke break when he
stopped to converse with Tingler and Barker. The time as-
sumes some importance in relation to any claim that Parnell

18 As one looks at the plant diagram (GC Exh. 3), the OSP canteen is
just below the midpoint, and to the left, of the right side of the plant.
19 As no compass orientation of the diagram is given, the parties at
times substituted north for the top and south for the bottom. (2:271.)
NEPTCO, INC. 39
was not legitimately away from his machine. Supervisor Laws
asserts that when the incident occurred it was not the breaktime
of either Tingler or Parnell. (4:760, 789.)
Neptco and Laws used a written break schedule. (3:514;
4:757; R. Exh. 25 at 4, effective “12/1/99”.) Laws asserts that
employees were told to “stick to” these breaktimes. (4:757.)
Tingler confirms this, but adds that if an employee had to leave
at a different time to be sure and let someone know. (2:268.)
Parnell suggests that going “off” the break schedule was some-
thing more acceptable than what Laws or Tingler report.
(2:309.) A (Sunday) January 9 e-mail (R. Exh. 25 at 3) from
Laws to the local managers gives a topical listing of items Laws
covered that date in a meeting of his “A” crew. Of some 20
items listed, breaktime is the first. Laws asserts that in the crew
meeting that Sunday he emphasized that employees were to
take their breaks only “during your scheduled break times.”
(4:743.) Laws confirms that Tingler was present (4:756), but
he says nothing about Parnell or even the time of the crew
meeting. If the meeting was held at the start of the shift,
Parnell may not have been present, for his attendance calendar
(R. Exh. 20 at 2) reflects that he was 1.5 hours “tardy” on that
date. That presumably means that he arrived for work 1.5
hours late that morning.
Turning to the printed break schedule, note that it specifies
“LFE 1” and “LFE 2.” (R. Exh. 25 at 5.) Presumably that
would be Parnell and his coworker, with Parnell (who was at
the top pay scale, 2:294) probably “LFE 1.” Both LFE 1 and 2
are shown as having scheduled afternoon smoke breaks, their
times being, respectively, “2:50–3” and “3:05–3:15.” (R. Exh.
25 at 5.) Neither of those times fits the period described by
Parnell or by Supervisor Laws in either his e-mail (R. Exh. 25
at 6) or his hand note (R. Exh. 8 at 8), although Tingler’s time
estimate would be very close to the breaktime for “LFE 2.”
Because the parties neither fully developed the scheduled
breaktime matter, nor even focused on the time of this incident,
nor briefed it as an issue, too much ambiguity exists to make a
finding. I decline to make that finding based simply on the
naked assertion of either Parnell or Laws when the parties eas-
ily could have developed facts corroborating one witness or the
other. At the very least Parnell could have testified, but did not,
as to whether his breaktime, per the printed schedule, had been
modified. Thus, I simply find that the incident occurred some-
time the afternoon of Wednesday, January 26, 2000. I make no
finding whether Parnell’s presence there on this occasion was
part of an authorized break for him. Consequences may flow
from this depending on which party, if either, needs a finding as
to whether Parnell was there as part of an authorized break.
Thus, I leave the testimony as is—meaning that I accept it not
for accuracy, but as what the witnesses believed both at trial
and back on that January 26.
On the assumption that Parnell thought he properly was on
break, and Laws thinking that it was not the breaktime of either
Tingler or Parnell, we have the supervisor, Laws, being “real
disappointed” in seeing Parnell out of his work area after Laws
had already told him earlier that day to “stay on your job.”
(4:788–789.)
Supervisor Laws testified that, after completing his rush job
with the spool, he returned to the production office and wrote
the two-paragraph hand note (R. Exh. 8 at 8), quoted earlier,
about the two incidents of that January 26. Then he had a
meeting with West and recommended that Parnell be termi-
nated. (4:789, 813.) West confirms that Laws came to her with
the hand note and asked how they should address the matter.
They reviewed Parnell’s personnel file, noting the two docu-
ments there bearing dates within the last 12 months (the May
24 attendance log and the e-mail about the August glue spill).
Agreeing with the termination recommendation, West went to
Plant Manager Hensman and informed him of their recommen-
dation. (3:490–496, 624–625.) Hensman approved (2:374),
and West then prepared the discharge letter (GC Exh. 13; R.
Exh. 8 at 9). (3:496.)
On Thursday, January 27, 2000, Parnell was called into a
conference room where he learned that effective that date his
employment with Neptco was terminated. (2:303–305, Parnell;
3:497–498, West) Parnell asked why, and Laws replied, “Job
performance.” (2:305; 3:498.) When Parnell asked for more
detail, Laws said “Job performance covers a lot of things.”
(2:303.)
West testified that she agreed with the decision to discharge
because she and other supervisors had seen Parnell away from
his work area on other occasions, and that she was satisfied
Supervisor Laws “numerous times” had given Parnell “fair
warning” to stay on his machine. (3:496–497.) No considera-
tion was given to issuing a written warning to Parnell rather
than terminating him because there were two instances of in-
subordination on the same date, West testified. (3:626.)
According to Laws, he told Parnell that his termination was
because of his performance, the information in his file, of his
being totally insubordinate, and that such was unacceptable.
(4:790–791, 814.) On cross-examination Laws asserts that
when Parnell asked why he was being fired that Laws told him
it was for “a series of events that he had in his file, that led to
his termination.” Laws denies giving Parnell any specifics, and
agrees that he did not ask Parnell about seeing him off his job
about 2:15 p.m. the day before in order to give Parnell an op-
portunity to explain. (4:815.) Laws did not because, he asserts,
“it was the second time that day, and the previous day before
[January 25] he did the same thing, so no.” (4:815.) Laws
acknowledges that he prepared no file memo pertaining to any
such incident on January 25. (4:816.)
Observing that Parnell and West are in general agreement
concerning what was said, and that notes written by West on
Neptco’s copy of the termination letter are consistent with that
version, I do not credit the version given by Supervisor Laws
(only on direct examination, and inconsistent with his response
on cross-examination) that he mentioned the file and “insubor-
dination.”
Asked why he recommended termination, Laws described
the “repeat sessions” and his fatigue of “dealing with it” that I
summarized earlier. Asserting that he did not think “another”
warning would do any good, and he therefore chose termina-
tion, Laws explains (4:789–790):
He wouldn’t have been any better. I’d had numerous discus-
sions and discussions wasn’t getting it. I believe the piece of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
paper that came along with the warning wouldn’t do the job
either.
As Parnell was not asked about the accusations that he did a
lot of roaming and wandering away from his machine when he
was supposed to be there working, the record contains neither a
denial nor an admission by him. Although both Human Re-
sources Manager West and Supervisor Laws testified after
Parnell, the General Counsel did not call Parnell at the rebuttal
stage so that he could address these accusations. Yet the accu-
sations constitute a critical point. If I credit Supervisor Laws
respecting the matter of roaming/wandering, and as to his in-
formal admonishments that Parnell return to work, that finding
could be a step toward dismissing the complaint as to Parnell.
Should I infer that had Parnell been called on rebuttal to answer
these accusations of wandering and of admonishments that he
would have admitted them?
To assist in answering that question, note this fact. The
General Counsel did not have to wait until rebuttal to ask
Parnell about the accusations, because the General Counsel had
been forewarned even before the trial. Back when NLRB Re-
gion 11 was investigating the charge, Neptco made the same
accusations in its March 20, 2000 position letter (GC Exh. 2 at
5–6) to the Region. Despite this foreknowledge of this critical
point, the General Counsel never asked Parnell about the accu-
sations. Instead, the General Counsel twice asked Parnell
whether he had ever received any written warnings during his
last 12 months (2:306, 337), and once (2:309) as to whether he
had ever received a written warning for being away from his
job. Because there were no such written warnings, or any dis-
ciplinary actions in his file for the last 12 months, Parnell cor-
rectly answered in the negative each time. In other words, the
General Counsel avoided the issue, giving Parnell no chance to
respond to the issue.
Of course, that leaves the testimony of Supervisor Laws un-
contested. In effect, the General Counsel simply abandoned the
field of contest as to this issue. Accordingly, I infer that had
the General Counsel asked Parnell about the accusations of
roaming by Parnell and of informal admonishments by Super-
visor Laws, Parnell would have admitted that the accusations
were substantially true.
That does not end the inquiry, however. Because these wan-
derings and admonishments were so numerous during 1999
(especially, it appears, during the second half of the year), these
wanderings and admonishments had become practically a perk
of Parnell’s job. Notice that the “return to work” and “stay on
your job” admonishments contain no notice or threat that any
further roaming would subject Parnell to possible discipline.
As already noted, Supervisor Laws never so much as sent an e-
mail to the file documenting any of these numerous incidents
(as he did with the August 8 glue spill). In fact, Supervisor
Laws (and Human Resources Manager West and Neptco, for
that matter) simply tolerated Parnell’s habit of roaming. In-
deed, Neptco admits as much in its March 20 position letter
when it writes, “Parnell enjoyed socializing off his job on
working time. NEPTCO management responded reasonably to
him and spoke with him informally about this many times.”
(GC Exh. 2 at 5.) “Spoke with him informally” many times,
but not once so much as threatened the possibility of even a
“verbal” warning.
Of course, such tolerance by Supervisor Laws and Neptco
did not create some vested right in employee Parnell to a guar-
anteed continuation of this tolerance. However, various laws
restrict Neptco’s right to switch, without warning, from toler-
ance to punishment. One such law is the National Labor Rela-
tions Act. The restriction is that the switch may not be made if
a motivating reason is to retaliate against the employee because
of his union activities.
Plant Manager Hensman states that, in approving Parnell’s
discharge, he understood that the recommendation was based
on “insubordination” in that Supervisor Laws, earlier on Janu-
ary 26, already had told Parnell to stay on his machine, and
then later that day Parnell again was wandering away from his
job. (2:375.)
Earlier, Hensman testified that he told his management, re-
specting their dealings with all employees, including union
supporters, that they should do as they normally would do, and
to just follow the employee handbook, that it was their “bible,”
and to “just go by the handbook.” (2:372, 388, 390.) Respect-
ing progressive discipline, however, “it depends on the kind of
violation.” Thus, Hensman’s recollection is that a “gross” vio-
lation did not merit progressive discipline. (2:389.) Actually,
the handbook’s language is not even that restrictive (GC Exh.
11 at 31; 2:424):
Although the company normally follows a progressive correc-
tive action procedure, this procedure may be altered by spe-
cific circumstances at the employer’s discretion.
Before reaching the discussion of this and Parnell’s case gen-
erally, one topic remains—examples offered by Neptco of other
discharges for “insubordination.” As I summarize these exam-
ples, it will be pertinent to see what Neptco considers conduct
“gross” enough (in the words of Plant Manager Hensman) to
bypass the steps of progressive discipline and to go direct to
termination.
The first of these is the February 1, 2000 discharge of Alan
Buchanan. What few details there are of this example are from
a three-line e-mail (R. Exh. 22) of February 1 from Supervisor
Dean Church to Human Resources Manager West describing an
event the night of Thursday, January 27. According to the e-
mail,20 Church instructed Buchanan “to run some specific
printer orders that were needed for the next day. These orders
were not done or even started. Allen [sic] agreed and commit-
ted to have these orders done and failed to do so. The next
crew had to hurry and complete these orders that had to ship the
same day.”
Human Resources Manager West also identified the Febru-
ary 2 termination letter to “G. Alan Buchanan.” (R. Exh. 22 at
2.) Per Neptco’s policy (at least for letters prepared by West),
the letter gives no reason. Hand notes by West at the bottom of
Neptco’s copy, per the testimony of West, reflect that Bu-
chanan called in on Wednesday, February 2, and spoke with

20 Although Church testified as one of Neptco’s witnesses, he was
not asked about Alan Buchanan or about any documents relating to
Buchanan.
NEPTCO, INC. 41
West, inquiring whether he had been terminated. She con-
firmed that status and, it appears, she informed him that it was
because he had not followed instructions. He apparently asked
“What instructions?” and she told him the instructions pertain-
ing to the printer machine. (R. Exh. 22 at 2; 3:504–505.)
I attach no weight to the Buchanan example because the re-
cord fails to reflect whether, at the time of his termination, Bu-
chanan already was laboring under an existing written warning,
with termination being the next step. Even if I were to consider
Buchanan’s case, the result would be the same for two reasons.
First, in his testimony, Supervisor Church did not describe
whether there were other examples of this conduct for which
Church, if not formally warning him, had admonished him for
failing to follow instructions. [Under the group I work rules,
rule 2, respecting insubordination, includes “refusal to carry out
a work assignment.”] (GC Exh. 11 at 32.) Second, as the Gen-
eral Counsel argued, in part, in support of the Government’s
objection at trial (3:505–506), the situation here is not compa-
rable to Parnell’s. Buchanan was expressly instructed to do a
specific job. He failed to do any of it. (What excuse he had, if
any, is not shown. We do not know whether other work con-
sumed all his time, whether he was working too slow, or
whether he simply did not want to do that assignment and
therefore declined to do it.) By contrast, as Supervisor Laws
had told him on numerous occasions before, “Stay on your
machine.” While that generally may be considered an order to
do just that, Neptco’s complete tolerance amounted to the grant
of an informal “perk” (revocable on notice) to Parnell. Thus, I
find the situations of Buchanan and Parnell to be not compara-
ble.
The second example advance is that of the January 19, 2000
discharges of Chris Bay (R. Exh. 23; 3:511), and Brian D.
Pierce (R. Exh. 24; 3:513) for repeated horseplay that included
“tampering with” Neptco’s property (a violation of group I, rule
5). As the preamble to the rules states, “Violation of any of the
work rules listed under group I may result in immediate dis-
charge.” (GC Exh. 11 at 31.) By contrast, the group II rules
prohibit, in rule 4, “Loafing, loitering, or neglecting duties dur-
ing work time,” and, by rule 7, “Leaving the job or regular
working place during working hours without authorization from
your supervisor.” (GC Exh. 11 at 33.)
Violation of the group 11 rules “may” result in any of the
disciplinary steps, “depending upon the individual circum-
stances.” (GC Exh. 11 at 31.) As we have seen, progressive
discipline is “normally” followed, but may be altered “by spe-
cific circumstances at the employer’s discretion.” (GC Exh. 11
at 31.)
The Bay/Pierce discharges are not comparable for two rea-
sons. First, they involved tampering, a deliberate offense sub-
jecting an employee to immediate discharge. Second, supervi-
sor Chris Worley testified that both already had received two or
three “write-ups.” (4:710.) If anything, the progressive treat-
ment accorded Bay and Pierce support the Government’s case.
Neptco also cites (Br. at 45 fn. 17) the June 29, 1999 dis-
charge of Crystal L. Lingerfelt by Supervisor Chris Worley.
(R. Exh. 21 at 4.) The Lingerfelt situation, as with that of Bay
and Pierce, is more favorable to the Government because it
shows that she had received progressive discipline—even a
“second written warning” for “inefficient, incompetent, or care-
less job performance.” (R. Exh. 21 at 3; 4:719–720; 3:503,
West.)
The last case advanced by Neptco as comparable is the De-
cember 14, 1999 discharge of Leander Belcher. Although at
trial I overruled the General Counsel’s objection to relevance of
the documents (R. Exh. 26) pertaining to Belcher (3:520, 524),
I here agree that the case of Leander Belcher, hired October 27,
1999 (R. Exh. 26 at 1; 3:520, West), is not comparable to that
of a regular employee. Belcher “was terminated for several
reasons” (R. Exh. 26 at 2), and the list is lengthy, including
“refusal to work,” a bad attitude, the use “of offensive language
on several occasions,” trashy area, left material holders empty
for next crew once (“This causes voids in the product”), and
failure, after repeated notice, to wear his safety glasses. The
question posed by Supervisor Worley to West was whether
Neptco should continue to train Belcher or to terminate him.
The decision was to discharge. (3:520, West; 4:711–713,
Worley.) Indeed, on cross-examination Supervisor Worley
explained that the “Refusal to work” was outright “insubordina-
tion” when Belcher declined an express order to work on a
specific machine (4:718):
I’m not going to work on that machine.
The wonder is that Belcher lasted some 6 weeks. The dis-
charge of Leander Belcher is not comparable because (1) he
was a probationary employee and (2) among his many infrac-
tions was a defiant and deliberate insubordination.
(b) Discussion
As this is not an arbitration, the issue here is not whether
Neptco, and particularly Supervisor Laws, followed the provi-
sions of the employee handbook, and whether Neptco properly
bypassed the steps in its normally-applied policy of imposing
progressive discipline, but whether all the circumstances dem-
onstrate that the union activities of Donald Parnell were a mov-
ing cause for his January 27 discharge. That is, was the moti-
vation of Supervisor Laws and of Neptco tainted by considera-
tions given to Parnell’s union activities and sentiments? The
issue really boils down to an inquiry into how union considera-
tions could have been a moving cause for the discharge when
the really active portion of those activities were back in May–
July? Why would Neptco wait until the following January
2000 to get rid of the leading supporter of the Union? Indeed,
if union considerations were a moving cause, then why would
Supervisor Laws pass up a golden opportunity to issue Parnell a
written warning (thereby taking an important step in the pro-
gressive disciplinary procedure) over the August 1999 glue
spill?
Previously I found no merit to a key portion of the Govern-
ment’s argument—the complaint paragraph 8(a) allegation that,
on January 21, Supervisor Greg Greene had threatened employ-
ees with retaliation for their engaging in union activities. Re-
call that this is the allegation that the General Counsel, at trial
and on brief, always interprets the testimony, in making the
Government’s argument, as if that testimony included an “and”
in the middle of the statement. The “and” tends to convert the
first half of Supervisor Greg Greene’s statement into an implied
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD42
threat that Parnell himself was finished and, in addition, “the
Union’s dead.” But as I have found, the statement had no
“and,” nor was Greene’s remark a statement about Parnell per-
sonally.
Aside from that alleged threat, the Government relies for
animus on three things. The first is an event early in the orga-
nizing campaign when a procession of supervisors, with Laws
as the last, took turns in telling Parnell that he could not distrib-
ute union handbills in the plant’s parking lot, with Laws even
telling him that he would get into trouble if he did not stop.
Parnell bravely resisted the bullying and went to Plant Manager
Hensman who, after checking, told Parnell that he could so
distribute during the 30 minutes before and after a shift change.
(2:298–299, 314–315.) Good heavens, the incident calls to
mind a verse from Thomas Macaulay’s, Horatius:
Then outspake brave Horatius.
The captain of the gate:
“To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds
For the ashes of his fathers
And the temples of his gods?”
Second, in the early days of the organizing campaign, Parnell
testified (2:309–310), supervisors (unnamed) followed him in
the plant and into the smoking area, and “I was always within
eyesight of one of them.” However, it appears that the supervi-
sors may well have been reacting to what they considered em-
ployees overstaying their smoke breaks, for, as Parnell explains
on cross-examination, he was only one of a group of employees
asked to leave the smoking area and to return to work. (2:323–
325.)
For the third item the General Counsel quotes testimony
given by Supervisor Laws in response to a question from me.
Thus, on brief (Br. at 31) the General Counsel observes that
Laws acknowledged that he had not issued Parnell a warning,
written or oral, concerning his predischarge conduct (over the
past 12 months). (4:819–820.) That was followed by the fol-
lowing exchange (4:820–821):
JUDGE LINTON: Just a moment before you go with Mr.
Price. With respect to Mr. Parnell, if I can understand it,
you say that you were just frustrated and [had] about had it
with the problems with him. In connection with your
practice that you say you would try to do is to give people
the—or as a matter of fact you gave him back in the sum-
mer [not “summary” as rendered], there were two or three
times that you could have issued him warnings and did
not?
A. That’s correct.
JUDGE LINTON: Then there comes January when it
means his termination, you issued him a termination,
rather than give him a written warning to really kind of
like a knock on the head to wake him up. I guess I don’t
understand what seems to be such a change in your ap-
proach. In the summer you were generous and in January
while apparently you had lost your patience you lost it to
the extent that you departed from your normal practice and
I guess I am having a little difficulty understanding that
change. Is there anything that you can tell me that might
help me understand?
A. As time went on the experience I had with Donnie
since he had told us that he was doing the union campaign
and stuff—
[On brief (Br. at 31), the General Counsel concludes
the exchange at this point and proceeds to argue that
Laws’ answer is an admission showing that he had chosen
to ignore the employee handbook’s (progressive) discipli-
nary procedure “because he was motivated by Parnell’s
active union involvement. In his apparent zeal to purge
the company of its most active union supporter, Laws also
disregarded the assertion of Plant Manager Hensman to
follow the handbook procedure.” And, “Finally, in a mo-
ment of truth, Supervisor Laws acknowledged the unlaw-
ful motivation to accelerate Parnell’s discharge because,
. . . ‘he had told us that he was doing the union campaign
and stuff . . .’.” Continue now with the balance of Laws’
answer.]
JUDGE LINTON: Since what?
A. Since he started doing the union and got involved
he had gone to where he would wander more and more.
As the time went on he would wander more and more off
of his machine every day. And I would always tell him,
“Donnie return to your machine. Get back to your work
area. Get out of the office and let me do my work.” It
seemed like those situations got worse and worse as time
went on and there were verbal things that I told Donnie
that I don’t have documentation on that I would tell him.
I’d say hey do this and do that and go back to your ma-
chine and do your job. That day [January 26] he had two
situations. The same situation and I was just tired of deal-
ing with it.
JUDGE LINTON: In retrospect you would have been
better off issuing him a warning or two along the way then
wouldn’t you? You wouldn’t have to make such a big ex-
planation.
A. For documentation purposes, that’s probably cor-
rect, but I wanted Donnie to do his job. I didn’t want to
fire Donnie. He just kept on getting lackadaisical on doing
his job and wandering around. I was just tired of dealing
with it. Chasing him down and for him to get back on his
work.
JUDGE LINTON: Thank you. Proceed.
The tactic used by the General Counsel in presenting the
Government’s argument on this third item, quoted above in the
bracketed portion, is regrettable. I must comment about the
ethics of this tactic. The General Counsel has deliberately split
the answer of the witness, disregarding the bulk of the answer
and the portion containing the message of the answer. The
tactic would suggest, to someone reading only the brief, that the
answer physically ends just before my interruption. Even as-
suming that, had the answer been the introductory part just
before my interruption, and that possibly the General Counsel’s
argument, although a long stretch, arguably could be made
based on that abbreviated portion, the balance of the answer
NEPTCO, INC. 43
shows that the severing tactic by the Government was deliber-
ate.
Whatever happened to the canons of ethics, and especially to
the one about “Candor with the court”? That one is still
around. See Rule 3.3, Model Rules of Professional Conduct,
ABA, 1999 edition at 62. I also remind the Government that, in
its role as the prosecutor in unfair labor practice trials,21 its goal
is not to win, but to see that justice is done. Thus, even though
unfair labor practice trials are not criminal cases, the compel-
ling moral force of the American Bar Association’s 1908 origi-
nal22 Canons of Professional Ethics, Canon 5,23 nevertheless
applies: “The primary duty of a lawyer engaged in public
prosecution is not to convict, but to see that justice is done.”
To similar effect, see Berger v. U.S., 295 U.S. 78, 88 (1935)
(“. . . not that it shall win a case, but that justice shall be done.”)
(Sutherland, J.).
What mystifies here is that the distortion of the answer of the
witness is so blatant, so obvious, and so, well, clumsy. In that
sense, the argument is not misleading, just highly improper at
best, and at worst, unethical. I am disappointed.
Turning now to the merits of the three items, none of them
suggests animus. The comments of the supervisors, including
Laws, were corrected by Plant Manager Hensman. More than
that, the comments reflected a misunderstanding of either
Neptco’s policy or of the law. That misunderstanding did not
disclose any personal animus by Supervisor Laws against
Parnell.
The second item has been covered. To the extent that
Parnell asserts that he was followed by any supervisors (he
does not name any) at places other than the smoking area, I do
not credit him. As to this, he testified in generalities, gave no
names or dates, and was generally unpersuasive on the point.
Respecting the third item, the attribution of an admission of
an unlawful motive based on the Government’s deliberate dis-
tortion of the answer given by Supervisor Laws, it is clear that
Laws answered that, following Parnell’s informing Neptco that
he was supporting the Union, Parnell had started wandering
from his job “more and more.” Over time, it became “worse
and worse.” Laws did not file any memos or issue any warn-
ings because he just “wanted Donnie to do his job. I didn’t
want to fire Donnie.” In short, the General Counsel’s third item
supposedly showing animus shows just the opposite—
compassion and patience.
The case boils down to the question of whether Supervisor
Laws is to be believed. That is, did Parnell really do all that
roaming and wandering, with not even a single memo put in his
file, so that Supervisor Laws finally reached the end of his pa-
tience, so much so that his judgment snapped and instead of
calling for a warning he recommended termination? Remem-
ber, this is the supervisor who merely sent an e-mail—not even
a “verbal warning”—to Human Resources Manager West when
Parnell created a “huge mess” by negligently causing the Au-
gust 8 glue spill. Now, in January, after much asserted roaming

21 Zurn/N.E.P.C.O., 329 NLRB 484 fn. 2 (1999).
22 Preface to Model Rules of Professional Conduct (ABA, 1999 ed.).
23 F.R. Shapiro, The Oxford Dictionary of American Legal Quota-
tions 352 (Oxford Univ. Press, 1993).
and wandering, with oral entreaties doing no good, a second
incident of such on January 26 causes Laws to skip any warn-
ings and go direct to recommending termination.
By being away from his machine the afternoon of January
26, and talking with Alesa Tingler and Janet Barker by the door
to the production office, was Parnell, as one might reasonably
conclude, being “insubordinate” (a group I violation), or merely
“neglecting his duties,” or away from his “regular working
place” without his supervisor’s authorization (group II viola-
tions), and if the latter, would they reasonably be classified as
“gross” so as to justify bypassing the regular stops of Neptco’s
progressive disciplinary procedure?
Agreeing with the Government, I find that both Neptco itself,
in its past disciplinary actions, and by the language of its rule,
interprets “insubordination” to mean a refusal to comply with a
specific instruction to do, or not do, a specific act. To the ex-
tent that ‘Stay on your machine” could qualify as a direct order,
toleration of Parnell’s roaming and socializing habit by both
Neptco (West and the other unnamed supervisors that she men-
tioned), and especially by Supervisor Laws, leaves Neptco’s
sudden change of course against Parnell open to question.
At this point it is time to ask what is there here that the Gov-
ernment can use to show, prima facie, an unlawful motive?
One thing left to the Government is the January 21 laughing
taunt by Supervisor Greg Greene (in the presence of Supervisor
Gary Greene) to Parnell that, in effect, Parnell’s efforts to help
the Union had failed, the organizing campaign is over (the
“You’re finished” portion) and (second half) “the Union’s
dead.”
As I have found, the statement is not unlawfully coercive.
However, I find that the taunting statement reveals the mental
image of Neptco’s management, and that such mental image
reflects a current interest in and evaluation of all things union.
It shows that, in the mind of management, only now (January
21) can it truly be said—“the Union’s dead.” In other words,
the Union’s organizing effort was still very much on manage-
ment’s mind as late as January 21, and management associated
Parnell with the Union’s organizing effort. The implication of
this, I find, is that top management now gave the “All Clear!”
signal for supervisors to get rid of any remaining active sup-
porters of the Union. However, it seems that a bit more is
needed to move the implication from possible speculation to
more solid ground.
Recall the process of the decisionmaking. Clearly Neptco
made a stretch in order to cast this as a matter of insubordina-
tion. Going even further, Human Resources Manager West
even calls the January 26 morning incident an “insubordina-
tion.” (2:558–559.) But before the first incident that morning,
Laws had not (at least not that morning) told Parnell to stay at
his machine. For his part, as summarized earlier, Parnell
thought that his job duties included going after supplies. Re-
gardless of the correctness of Parnell’s understanding, as he had
gone for supplies before, nothing suggests that he was not sin-
cere in his belief. Thus, he at least thought that his going for
supplies that morning was proper. Human Resources Manager
West therefore stretches to include this as an act of insubordi-
nation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD44
When Supervisor Laws and West reviewed Parnell’s person-
nel file, they confirmed that there was not a single disciplinary
action—not even a “verbal”—within the last 12 months. Yet
Human Resources Manager West, joining with Laws on his
recommendation of termination, went to Plant Manager
Hensman with the joint recommendation from her and Supervi-
sor Laws that Parnell be terminated. No progressive discipline
of either a “verbal” warning first, or even a written warning.
Skip all that and go direct to discharge. Why the urgency in
terminating Parnell after all these months of what Supervisor
Laws, and West, too, had been tolerating? Supervisor Laws
may have been “tired of dealing with it,” but I do not credit
Laws when he asserts that he did not think that a warning paper
would do any good. In fact, Parnell’s record shows that a Janu-
ary 1998 “verbal” warning (R. Exh. 8 at 3) for poor attendance,
an informal threat in August 1997 (R. Exh. 8 at 1) of possible
discipline for extended break, the April 1998 informal threat
(R. Exh. 8 at 4) of “other steps” if he did not clean up his work
area, and the May 1999 nonconformance log for poor atten-
dance (R. Exh. 8 at 6) all achieved positive results. Everything
in Parnell’s record shows that when management made it clear
by informal warning that other steps would be taken if he did
not shape up, Parnell complied. Thus, the record does not sup-
port Supervisor Laws, and as to this, Laws did not testify fa-
vorably, and I do not credit him.
From the view of Plant Manager Hensman, what was so
“gross” about one more example, of many, of being away from
his machine, after having been told to stay there, that called for
bypassing the normal route of progressive discipline. As I have
found, it was not insubordination because of the toleration that
Neptco had granted Parnell. And Hensman’s effort to call it
that merely reflects the stretching Neptco has done here to leap-
frog any intermediate steps—steps that, the record shows,
Parnell would comply with—in order to get rid of the main
union activist now.
The fact is, the action against Parnell does not pass the smell
test. The odor rising to the sky is so fetid that even the passing
clouds choke and turn a deathly hue. And trumpets across the
heavens announce the galaxies’ indictment—taint infects the
decision to terminate Donald R. Parnell. I do not believe either
Human Resources Manager West or Plant Manager Hensman
respecting Parnell’s case. They testified with unfavorable de-
meanor and unpersuasively. Respecting Supervisor Laws, I
find that he acted without animus through the summer, fall, and
into January 2000. But I do not believe his story that he lost his
patience so much that he just concluded that termination was
the only feasible solution.
No, another reason is at work here. Another motivation. It
is a motivation, I find, that flows not from the bottom (Supervi-
sor Laws) up, but from the top (from Plant Manager Hensman,
and even, perhaps, from Neptco’s corporate office) down. An
important clue exists in the January laughing taunt by Supervi-
sor Greg Greene on January 21. As I have found, that laughing
taunt reveals management’s secret that it was still evaluating
the viability of the Union’s campaign. I find that Parnell’s
answer (2:302) to Supervisor Gary Greene’s question of how
the union was going, “We’re limping along” (such answer con-
veyed, I find, to Plant Manager Hensman), served as a “wake-
up” to management that it needed to apply the finishing blow.
Fully aware that Parnell was the key, Plant Manager Hensman
(either directly or, I find, through Human Resources Manager
West), instructed Supervisor Laws to cease tolerating Parnell’s
wandering and enjoyment of (GC Exh. 20 at 5) “socializing off
his job on working time.” Complying with this instruction,
Supervisor Laws cracked down on Parnell at the first clear
opportunity—the 2:15 p.m. (one of Laws’ time marks, the other
being the 1:40 p.m. e-mail) incident that we have here.
The morning incident on January 26 was not a clear oppor-
tunity because Parnell had gone for supplies, although the occa-
sion gave Laws a chance to tell Parnell, again, to stay on his
machine. Laws’ brief reference (4:815) to a similar incident on
January 25 was not developed or litigated, and I therefore am
unable to evaluate it.
The statutory vice of the crackdown is not that Neptco
cracked down, even singling out Parnell for the crackdown.
Indeed, Parnell may have been the only employee who, at
Neptco’s tolerance, “enjoyed socializing off his job on working
time.” (GC Exh. 2 at 4.) If Neptco’s motive for the crackdown
had been for the purely business purpose of restoring adherence
to plant rules, the action, perhaps would have been unfair (no
informal warning, no intermediate written “wake-up” warning,
and certainly no “second written warning” as given, for exam-
ple, to Crystal Lingerfelt—(R. Exh. 21 at 3; 3:503), but it
would not have been illegal. No, the statutory vice here is that
Neptco cracked down, and bypassed the steps of its own pro-
gressive disciplinary system, for the chief purpose of guarantee-
ing that “The Union’s dead.”
Because Neptco’s decision to terminate Donald Parnell was
motivated chiefly by Parnell’s position as leader of the remnant
of employees supporting the Union, Neptco’s January 27, 2000
termination of Donald R. Parnell was unlawful. So finding, I
shall order Neptco to offer Parnell immediate and full rein-
statement, and to make him whole, with interest.
4. Alesa Tingler
(a) Facts
First working at Neptco through a temporary service from
October 1998, Alesa Tingler was hired as a regular Neptco
employee on December 28, 1998. At the time of her January
27, 2000 (effective date, GC Exh. 12) discharge,24 Tingler
worked under Supervisor Laws in the composites department
where she primarily operated a 702 machine, a machine that
produces fiber optic cable or fiberglass rods for telephone and
television cable. (2:245–247, GC Exh. 3.) Laws recalls that
Tingler switched to the 702 machine about the fall of 1999.
(4:839–840.)
On various factual points that follow, the versions of Tingler
and Supervisor Laws differ. I find the facts generally as re-
ported by Tingler, whom I credit on any disputed matters,
rather than as reported by Laws, whom I do not believe. Tin-
gler testified with a persuasive demeanor, whereas Laws did
not. To some extent the description overlaps with that given in
Donald Parnell’s case, the common incident being a certain

24 Because of days off, Tingler did not receive actual notice until she
returned to work Monday, January 31, 2000. (2:260–264.)
NEPTCO, INC. 45
“socializing” by the door to the production office the afternoon
of January 26.
Company knowledge as to Tingler’s union sentiments is not
contested. In addition to being a member of the organizing
committee and opening her home for two union meetings in
June, Tingler occasionally wore union T-shirts from early in the
campaign until her termination. (2:247–248, 252.) As previ-
ously discussed, Plant Manager Hensman joked with Tingler
about her union T-shirt. Supervisor Laws admits (4:838)
knowing that Tingler supported the Union, but he denies
(4:841) that such fact figured into his decision to recommend
that Tingler be fired.
Before Tingler’s last week, the only negative item in her per-
sonnel file was the documentation (R. Exh. 25 at 1–2) of a No-
vember 3 verbal warning given by Supervisor Laws to Tingler
on October 31. On this occasion Tingler, as she admits (2:253–
257, 282), neglected adequately to observe the work of a
trainee who was to add epoxy to the raw glass. As Tingler
worked with another employee at the other end of the machine,
the trainee left to obtain more mix. Unfortunately, the trainee
had to wait in line for the mix, and the machine began running
raw glass. Tingler admits (2:256) that she had erred, and that
Laws gave her a verbal warning that she be more careful and
not to let it happen again. Tingler denies any awareness that
the matter had been documented. (2:282.)
Supervisor Laws asserts that the lost product was costly, and
that he decided on a verbal warning because on some other
occasions he informally had been required to caution Tingler to
monitor her machine more closely. (4:752–755, 833.) I credit
Tingler’s denial (2:280–281) that Laws had ever so cautioned
her individually other than what he had said to everyone in shift
meetings. As we see in just a moment, that was a topic that
Laws had raised in a shift meeting on January 9. I find that at
trial he simply tarred Tingler with that charge when in fact any
problems he had on that score were with others or that his
January 9 message was simply a reminder of this standard re-
quirement. As Tingler credibly testified (2:281), the require-
ment of staying with the machine was just common sense (im-
plying that she did not need to be reminded anyhow).
Tingler admits that, on some four or five occasions in the fall
and winter, Supervisor Laws had spoken to her about the need
that she wear the side shields for her safety glasses. (2:282.)
However, it was rather common that employees failed to wear
the side shields and the supervisors frequently had to remind
the employees to wear them. (2:285.) In any event, at her late
December evaluation, Laws told her that there was no problem
with her work,25 that other supervisors had “raved” about her
performance, and that she would receive a pay increase of 2.5
percent, or 21 cents per hour. (2:264.) Although other em-
ployees told Tingler that such a raise was at the top of the range
for pay increases granted by Supervisor Laws (2:265), there is
no nonhearsay evidence establishing that to be fact.
On January 9, Supervisor Laws held a shift meeting with his
employees and covered a list of topics. (R. Exh. 25 at 3;
4:743.) Among the items Laws emphasized were the need for

25 Supervisor Laws admits that Tingler had been doing “a good job.”
(4:838.)
employees to observe the scheduled break periods and that they
not be out of their work areas at other times, and for employees
to monitor their machines closely. (4:743.) Laws asserts that
Tingler was present at the meeting. (4:756–757.) Referring to
the printed break schedule (R. Exh. 25 at 4), Laws asserts that
Tingler’s afternoon breaks came at 12:30 to 12:50 (the paid
lunch period, apparently), 3 to 3:10 p.m., and 4:30 to 4:40 p.m.
(4:758.)
Restroom breaks could be taken as needed provided that the
employee alerted his or her neighbor operator before leaving
the work area. (2:246, Tingler; 4:836, Laws.) Tingler’s work-
ing “partner,” or neighbor operator, was Robert Arney. (2:246;
4:764, 835.) As of the trial, Arney still worked at Neptco
(4:835, Laws), but neither party called him to testify. Tingler
asserts that she unsuccessfully made inquiries but could find no
one who knew how to contact Arney. (2:265–266.) The Gen-
eral Counsel represented that he likewise had been unsuccess-
ful. (2:266.) The General Counsel requests (Br. at 24) that I
draw an adverse inference from Neptco’s failure to call Arney
as a witness. As Arney was not a representative or agent of
management, he was equally available to both parties, and I
decline to draw the requested adverse inference. Nor do I draw
an adverse inference against the Government for failing to lo-
cate and call Arney as a witness.
Recall from the fact summary regarding Donald Parnell’s
case, that sometime during the afternoon of January 26, Super-
visor Laws (proceeding from the OSP area on the right side of
the plant, through rewind in the center section, and on to ship-
ping at the northeast end of the plant) observed employees Tin-
gler, Parnell, and Janet Barker conversing by the door to the
production office. As Laws passed the trio on his rush errand,
he waved for them to move on. About half way through rewind
he looked back and the group was still socializing. When they
saw him looking back they scattered. (4:759–761, 788, 812–
813, Laws.)
Tingler testified that, on this occasion, she had left her ma-
chine to go to the restroom. She first told her work partner,
Robert Arney, who nodded and said “Okay.” Tingler likewise
had covered for Arney in the past when he needed to go to the
restroom. (2:257–258, 266–267.) Tingler reports that her jour-
ney took her from her machine in composites, in the middle of
the plant, down to the spot by the door to the production office
and the group conversation (of a “minute or two”) and then to
the restroom in the OSP area on the right side of the plant.
(2:258, 268–271; GC Exh. 3.)
On leaving the restroom, Tingler entered the adjacent can-
teen and purchased some aspirin (in a package, apparently)
from a vending machine (2:272) for a toothache she had. She
then left the canteen, heading for her machine. All this time,
from leaving her machine, Tingler carried a can of soft drink.
(2:272, 275.) Tingler does not say whether the drink was open
for sipping during this trip, or, if not, what her purpose was in
carrying the drink. As Tingler left the canteen and started to-
ward her machine, she heard herself being paged by Supervisor
Laws to report to the production office. Arriving there she did
not find Laws so she went to her machine and found Laws
waiting for her there. (2:258–259, 270–275.) The total time
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD46
for this restroom break took some 15 to 20 minutes, Tingler
testified. (2:276.)
When Tingler arrived at her machine, Laws told her that he
had been to her machine twice in 20 minutes, that Tingler had
not been there, that a spool had stopped, that he did not know
how long it had been stopped, and for her to get her tools be-
cause he was sending her home for the rest of the day. She told
him she was sorry but that she left because she had to go to the
restroom. Laws replied that he was sorry but that he was still
sending her home. (2:259–260, 263, 276.)
When a spool, or “winder,” stops, sometimes the operator
can restart it. If unsuccessful at that, the operator can take steps
to stabilize the machine in order to prevent further damage to
the product or even to the machine. (2:276–278, 286–287.)
However, Tingler testified, even had she been at the machine
when it stopped, she could not have prevented the stoppage,
and the other seven lines continued to run. Machine 702, she
explains, has been a problem machine that she could not help
when a line stopped, so she normally simply cut out the line
that was jammed, or in trouble, and reported the matter to the
supervisor for a repair order. (2:283–285, 287.) In the past,
when a spool stopped, the operator would go to the supervisor
and he would write a repair order for the maintenance depart-
ment to restore the operation. Tingler is unaware of anyone
else ever being disciplined over the stopping of a spool.
(2:259–260, 285.) When she left for her restroom break, Tin-
gler credibly testified, she checked the spools and they were
running properly and giving no warning of any developing
problem. (2:284.)
Former Supervisor Robert Coffee confirms Tingler’s de-
scription respecting machine 702’s having a problem with stops
and that he simply prepared a service order and turned the
breakdown over to maintenance. Coffee never disciplined an
employee for having a spool stoppage on machine 702. (1:96,
114.) Coffee agrees, however, that he would expect someone
to be covering the machine, for it makes the situation worse if
no one is watching the machine. (1:114–115.) Contending that
machine 702 only infrequently stopped, Supervisor Laws
agrees that when a spool stops the lead person fills out a form
requesting service by maintenance. “But somebody has to be
there to see that it stopped to report it.” Finally, Laws could not
recall ever disciplining anyone, before Tingler, when a spool
stopped. (4:837.)
Supervisor Laws testified that, after completing his rush
work, he went to Tingler’s work station to check on adjust-
ments the engineers had been making to the counter-puller—a
device that pulls material through the machine. That device
was leaving marks on the material, so the engineers planned to
adjust the settings so that the device would cease making the
marks. According to Laws, an engineer asked “the operator” to
keep a close eye on the operation. (4:763.)
Arriving at Tingler’s machine, and finding Tingler absent,
Laws stepped the 6 to 8 feet to the next machine and asked
Robert Arney where Tingler was. Arney answered that he did
not know. To Laws’ question of whether Tingler was on break,
Arney replied, “No, it’s not her break time.” Then to Laws’
next question asking whether Tingler had told Arney that she
was going on break (apparently implying a request to watch her
machine), Arney replied, it appears (4:836), in the negative.
Laws then went to a telephone and paged Tingler. (4:764, 835–
836.)
After placing the page, Laws walked to the other end of Tin-
gler’s machine. At that point he observed Tingler approaching
from the direction of the production office. As Tingler arrived,
Laws observed that she was carrying an unopened soft drink
can and an unopened bag of potato chips. (4:764.) Whether at
that point or earlier (the testimony is unclear), Laws inspected
the machine and found that one of the lines had been slipping
and had stopped. Attributing the problem to adjustments made
by the engineers, Laws asserts that, had Tingler been there
monitoring her machine, she could have adjusted the line (im-
plying that she could have prevented the stoppage). Even so,
he expressly does not blame her for the stoppage, but only for
her not being there watching her machine. (4:765–766.)
When Tingler arrived at the machine, Laws asked her where
she had been. She told him that she had gone to the restroom
and then to the canteen to get something to drink. To his ques-
tion, Tingler acknowledged that she did not know that a line
had stopped. Laws said that she had just come off break less
than an hour earlier. Other than the “something to drink,” Tin-
gler gave no explanation for having a new drink and a bag of
chips. Rather than dealing further with the matter, Laws told
Tingler to get her coat and tools and to go home for the rest of
the day. Tingler complied. Laws testified that he was “just
tired of dealing with” the same problems of Tingler’s not being
on her machine, of not wearing side shields, and “I just didn’t
want to deal with it anymore. I was getting tired of it.” Laws
estimates that at least 20 minutes had elapsed from the time he
had waved “move on” to the group and the moment when Tin-
gler arrived at machine 702. (4:766–768, 836.)
Supervisor Laws then sent (4:768) the following e-mail,
dated January 26, 2000 at “1:50 PM,” to Human Resources
Manager Linda West, Manager Yancey, and Plant Manager
Hensman regarding Tingler (R. Exh. 25 at 6):
Three issues today, 1—not using side shields on her
glasses after numerous reminders over the past weekend.
2—Gathered in front of prod. office socializing with D.
Parnell and JEB (broken up by dcl). 3—Not at machine
702 appx. 20 minutes after broke up socializing episode
with a line stopped in the machine.
At this point she was sent home for the day!!!!!! dcl
The correct time appears to be mostly immaterial here, for
there is no dispute that Tingler contends she was gone on a
restroom break, not a scheduled break. Thus, the credibility
issues are whether Tingler, as she asserts, told Arney that she
was going to the restroom, or whether Laws credibly reports
that Robert Arney denied that Tingler had told him she was
leaving for a break. As Neptco puts it on brief (Br. at 39 fn.
11):
Whether Ms. Tingler actually informed Mr. Arney about
where she was going is not the issue. The issue is what Mr.
Laws believed.
Conceivably, Tingler could have so informed Arney, and ob-
tained his affirmation, as she testified, yet Arney, either forget-
NEPTCO, INC. 47
ful or worse, could have denied knowledge to Laws. That is, in
theory both Tingler and Laws could be correct. As that remote
possibility is highly unlikely, and it being far more likely that
either Tingler or Laws has not accurately reported the event, I
later shall approach the credibility issue on the basis that only
one of the two is correct.
Following his e-mail to West and the others, Supervisor
Laws met with West. They went through Tingler’s personnel
file, and concluded that the discharge of Tingler should be their
recommendation to Plant Manager Hensman. (3:514–515,
West; 4:768, 840, Laws.) Laws asserts that he so recom-
mended even though, as a Neptco employee, Tingler had never
been given a written warning for any infraction of the rules.
(4:840–841.) Laws denies that Tingler’s union activities played
any part in his termination recommendation. (4:841.)
Hensman approved the recommendation to discharge. (3:515,
West.)
Hensman confirms that he approved, explaining that, while
he was unaware of all the details, as he recalled, the termination
recommendation was based on Tingler’s machine running out
of epoxy while she was away from her work area (2:379), and
because, according to Tingler’s supervisor, Tingler had a prob-
lem “roaming off her job.” As Hensman explains, Tingler’s
machine had eight lines running—a total of some 40 miles of
material. A defect can cause a lot of (expensive) scrap. So
Neptco wants the operators to be at their machines monitoring
the operation. “So, we want our employees to be there on a
continuous basis.” (2:378–380, Hensman.) Hensman does not
recall whether Tingler had incurred any previous discipline
before she was terminated. (2:324.)
The following day, January 27, West prepared the termina-
tion letter. (3:515.) When Tingler returned to work on Mon-
day, January 31, Supervisor Laws came and escorted her to a
conference room where, in the presence of West (2:261; 3:516;
4:771), he told Tingler that, effective that day, her employment
with Neptco was terminated because of “the incident that hap-
pened last week.” (2:261, 264, Tingler.) Laws handed Tingler
the letter informing her that, “Effective today, your employ-
ment with NEPTCO Incorporated has been terminated.” (GC
Exh. 12; 2:261–262.) I specifically credit Tingler’s credible
report that Laws added the reference about the “incident that
happened last week” over the limited description by West sim-
ply repeating essentially what the letter states. (3:516.) Indeed,
even Laws asserts that he added the phrase, “due to her [your]
performance.” (4:771.) Although I find that Laws did mention
“performance,” I also find that he went further and explained
that it was “the incident that happened last week.” The only
incident of “last week” which Tingler could recall was the
spool incident. Indeed, the only days that she had worked the
previous week were Sunday and (January 26) Wednesday.
(2:264.)
On her employment claim of January 31, Tingler reports the
reason given to her as being, “Job performance—no particular
reason.” (GC Exh. 14 at 1.) The “no particular reason” is not
inconsistent with Tingler’s testimony about “the incident that
happened last week” because the latter is merely an event, not a
specific ground.
Neptco’s February 15 response, submitted by Human Re-
sources Manager West (3:555), reads that Tingler was dis-
charged “due to” (GC Exh. 14 at 4: 3:555):
Violation of Group II Work Rule #2—failure to wear safety
glasses, and #7 Leaving the job or regular workplace during
working hours without authorization from your supervisor.
Ms. Tingler participated in orientation when the handbook
was covered in detail.
Both grounds are of the group II rules (GC Exh. 11 at 33)
with number 7, if not expressly so designated above, then
clearly so stated by West (2:426–427) at trial. Also at trial,
West asserted that, in her opinion, the termination recommen-
dation was appropriate because Tingler’s conduct on January
26 constituted insubordination. (3:515, 554.) West sought to
classify both the grounds just quoted as being examples of in-
subordination on the basis that Tingler had been told to wear
her safety glasses, and did not, and to remain at her work place,
and did not, and therefore Tingler was “being insubordinate”
(3:556). West did not submit the one word “insubordination”
to the North Carolina Employment Security Commission (ESC)
because in her experience the ESC always asks for details if
only one word is submitted as the basis for the termination.
(3:556, 614.)
Assuming for the moment that Neptco could treat, as insub-
ordination, a “refusal” to wear safety glasses and a “refusal” to
remain at the work station, the next question would be whether
such “refusal” encompasses mere negligence in recalling, or
interpreting, some generic instruction. I need not address that
question because such is not the issue here.
West testified with an unfavorable demeanor, and I do not
credit her. Had insubordination really been the ground, it
would have been quite simple for West to have written that on
the form and to have cited the specific rule against insubordina-
tion, group I rule 2 (GC Exh. 11 at 32):
2. Insubordination, including but not limited to, re-
fusal to work, refusal to carry out a work assignment, abu-
sive/profane language, assault on a Supervisor, or disre-
spectful attitude.
Then, after writing “Insubordination,” West could have
given the more specific grounds—refused to wear safety
glasses, and refused to remain at work station. Clearly West
was capable of doing this because of her long experience and
because of her complete familiarity with the specific rules and
their numbers. The reason West did not do so, I find, was that
at the time of the events, insubordination was not a reason, but
was added for the trial to enhance the chance of a successful
defense. In any event, as I earlier found, Neptco interprets the
group I insubordination rule as applying to a knowing refusal of
a direct order to do, or not do, a specific act or course of con-
duct. Regardless, even that is not the issue here.
What was involved on January 26 was an issue of taking a
restroom break. Earlier I outlined the credibility issues to be
resolved as to the restroom break, and I reach those issues later.
Before that, turn to the “side shields” (snap-ons for the safety
glasses). The evidence as to this is ambiguous in relation to
January 26. Supervisor Laws’ e-mail of that date (R. Exh. 25 at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD48
6), quoted earlier, begins: “Three issues today, 1—not using
side shields on her glasses after numerous reminders over the
past weekend.” First, the exhibit was not received for the truth
of the contents. I ruled that way, in sustaining the General
Counsel’s objection (3:516) that the document is untrustworthy,
on the basis that, in the circumstances of a union organizing
campaign, warnings, memos, and notes placed in the personnel
file of an employee openly active for the union lack the trust-
worthiness of general business records. I therefore received the
exhibit (R. Exh. 25) on the limited basis that it reflects docu-
ments that Neptco reviewed and relied on in making its deci-
sion to discharge Tingler. (3:518–519.) Respecting the court
case I there referred to (but not by name) as support for my
ruling, see Pierce v. Atchison Topeka and Santa Fe Ry. Co.,
110 F.3d 431, 443–444 (7th Cir. 1997) (not error under FRE
803(6) for trial judge to exclude memo to employee’s personnel
file from Santa Fe official in age discrimination case).
Asked about that e-mail at trial, Supervisor Laws testified
that he again had a side-shield problem (not using them) with
Tingler on that January 26. After describing the shields a snap-
ons, Laws then asserts (4:758–759):
And I continually had to tell her to put her side shields on her
glasses, and safety glasses are required throughout the manu-
facturing area by all employees. I continually had to tell her
to put her things on, again, this situation I’d had her to do it,
and I’d had numerous problems with her not doing things on
this particular day.
The question here is whether Laws is saying that on January
26 he had to talk with Tingler about her side shields, or whether
he is describing efforts he had made over the past several
months, with a kind of mushy slide across what, if anything,
took place on January 26 regarding side shields. Recall that
Tingler admits (2:282) that, on four or five occasions during the
fall and winter of 1999–2000, Supervisor Laws had reminded
her to use her side shields. But Tingler also testified (2:285)
that it is common for employees not to wear their side shields,
and for supervisors to remind them, and (2:262–263) that she
recalled no instruction on January 26 from Laws about side
shields and no statement about the topic at her termination.
Indeed, recall that, as I have found, at the termination, Supervi-
sor Laws told Tingler that she was being terminated for the
“incident that happened last week.”
The “incident last week” was, I find, Tingler’s restroom
break of 20 minutes. (As Laws is specific about the duration,
and as Tingler says that it was 15 to 20 minutes, I find the time
to have been 20 minutes.)
I also find that Supervisor Laws said nothing about side
shields to Tingler on that January 26. To the extent Laws’ tes-
timony is that he did, I do not credit him. Laws testified unper-
suasively, and the facts, just described, also indicate otherwise.
What Laws was relying on in his e-mail of January 26, I find,
was earlier dates when he had reminded Tingler to wear her
side shields. This padding of the e-mail by reaching back to a
topic, side shields, that had never so much as generated a note
to the personnel file, and never as much as a “verbal” warning,
much less a written warning, simply was for the purpose of
adding support to the incident that triggered the discharge. Of
course, the issue to be reached shortly is what motivated Laws
to do the padding. Was it truly a general frustration with Tin-
gler, or was it the unlawful motivation of padding the record for
getting rid of her because of her support of the Union? Turn
now to the topic of comparable examples.
As comparable examples, Neptco (Br. at 40), cites the dis-
charges of Crystal Lingerfelt and Leander Belcher. Lingerfelt
was terminated by Supervisor Chris Worley. (4:705, 720.) The
June 29 termination letter (R. Exh. 21 at 4) from Supervisor
Worley states that Lingerfelt was terminated “based on the
number of work hours missed and job performance.” Respect-
ing Lingerfelt, Worley testified (4:705):
This individual had, on numerous occasions, not worn her
safety glasses, and this is, you know, I try to give someone the
benefit of the doubt, especially when it’s hot in the plant.
Hey, you know, if they’re cleaning the, it’s one thing, but if
they’re just clearly not wearing them it’s another. She had
been written up on several occasions for not wearing safety
glasses. What we try to do with out processes is once a per-
son receives a warning, then, if they break the rule again, they
receive another warning, and then, so forth and so forth until
termination is determined.
Rather than comparable treatment as to Tingler, Neptco’s
treatment of Lingerfelt supports the Government’s case. The
record clearly shows that Neptco accorded Lingerfelt the full
range of its progressive disciplinary system (oral warning, two
written warnings, then termination; R. Exh. 21). What Worley
possibly meant by his testimony that Lingerfelt had “been writ-
ten up on several occasions for not wearing safety glasses” is
that he had submitted notes for her file—documentation of
informal counselings—after talking with her “more than a
dozen times” (4:719) about her safety glasses.
Although it would appear that a failure to wear safety glasses
is potentially substantially more dangerous than the failure to
wear snap-on side shields on the safety glasses, the distinction
was not litigated on the record. Accordingly, I treat “side
shields” as if they were the same thing as “safety glasses” in
terms of Neptco’s concern about safety.
In any event, I note that Neptco accorded Lingerfelt progres-
sive discipline, but failed to do so as to Alesa Tingler. Indeed,
Tingler had received nothing more than a single verbal warning
(when the epoxy ran out on October 31), and no written warn-
ings, during her tenure with Neptco. Thus, I find that the Lin-
gerfelt example shows disparity of treatment in light of the
accelerated discipline imposed on union supporter Tingler.
As noted earlier, Leander Belcher was still within his 90-day
probationary period when he was terminated. (4:711.) He had
been told “on several occasions” to wear his safety glasses.
(4:711, Worley.) Belcher was terminated on December 15
(4:713) for several reasons (R. Exh. 26), including the fact that
he had “refused to work in some other areas.” (4:712.) As
probationary employees do not receive the “benefits” outlined
in the handbook (GC Exh. 11 at 15), it appears that Neptco
need not extend progressive discipline to a probationary em-
ployee. Accordingly, I find Belcher’s situation to be inapposite
in evaluating Neptco’s treatment of Alesa Tingler.
NEPTCO, INC. 49
(b) Discussion
Although Neptco is correct, as quoted earlier, that, “The is-
sue is what Mr. Laws believed,” it must be determined whether
Laws believed as he testified respecting his asserted January 26
conversation with Robert Arney, Tingler’s neighboring opera-
tor. Did Arney really say that he did not know where Tingler
was? Did Tingler simply proceed to her restroom break with-
out saying anything to Arney? Crediting Tingler, I find that, as
she describes, Tingler did tell Arney that she was leaving for
the restroom and that he acknowledged this. I do not credit
Supervisor Laws concerning his description of his conversation
with Robert Arney. Earlier I wrote that I would draw no ad-
verse inference against either party for its failure to call Arney
as a witness. Even so, in resolving credibility, and not as an
adverse inference, a judge may consider that a party failed to
call a potentially corroborating witness. C & S Distributors,
324 NLRB 404 fn. 2 (1996).
Neptco asserts that it chose not to call Arney because he is
not a supervisor. (Br. at 39 fn. 11.) In resolving credibility
against Supervisor Laws regarding his asserted conversation
with Robert Arney, I consider the fact that Neptco did not itself
call Robert Arney who could have given testimony corroborat-
ing the version of Supervisor Laws. Not crediting Laws as to
this, I therefore find either that Laws never spoke with Arney (a
possibility) or (another possibility) that Arney told Laws that
Tingler had left for a restroom break.
Supervisor Laws, I find, recognized that he had an incident
at hand to serve as a vehicle for getting rid of a strong union
supporter. The first part of the incident was the “socializing.”
Crediting Supervisor Laws as to this aspect (he testified clearly
on the point, and Tingler did not return on rebuttal to deny his
description), I find that the Tingler trio did not disperse when
Laws, passing them on his rush errand, waved for them to
“move on.” Not until he reached the next section and looked
back did they cease the socializing. So that part is something
that Laws could have warned Tingler about.
I also credit Laws that when Tingler returned to her machine
she was carrying an unopened can of softdrink and an un-
opened bag of potato chips. Again, and particularly in light of
the “socializing,” Supervisor Laws reasonably could have is-
sued Tingler a warning for abusing the restroom privilege.
Instead of warnings under the progressive disciplinary sys-
tem that Neptco followed previously, and with employees not
open union supporters, however, Supervisor Laws padded the
facts by injecting the topic of side shields, and then totally ac-
celerated the discipline direct to termination. Human Re-
sources Manager West, of course, was right there in the deci-
sion process, and instead of ensuring that the progressive disci-
pline system was followed, simply joined in the recommenda-
tion that Tingler be sent to the industrial gallows. All this, I
find, was motivated by Neptco’s renewed desire, as I earlier
found respecting Donald Parnell, to move decisively on the
information, given by Parnell, that the union movement among
the employees was still alive. The actions as to both Parnell
and Tingler were designed to drive a stake through the heart of
whatever remaining interest existed for representation by the
Union. I so find.
Finding that Tingler’s discharge was unlawfully motivated,
and that Neptco has failed to demonstrate that, in any event, it
would have terminated Tingler, I shall order Neptco to reinstate
Alesa Tingler and to make her whole, with interest.
CONCLUSIONS OF LAW
1. By discharging employees Donald R. Parnell and Alesa
Tingler because of their union activities, Neptco has violated
Section 8(a)(3) and (1) of the Act.
2. Neptco has not violated the Act as otherwise alleged.
3. The unfair labor practices found affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make each of them
whole for any loss of earnings and other benefits, computed on
a quarterly basis from date of discharge to date of proper offer
of reinstatement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]