Ogihara America Corp.

National Labor Relations Board - Board Decisions

May 30, 2006

347 N.L.R.B. 110 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 10
110
Ogihara America Corporation and International Un-
ion, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO and Leo Andre Ahern. Cases 7–CA–
47942 and 7–CA–48024
May 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On November 3, 2005, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel and Charging Party Leo Andre Ahern
filed answering briefs, and the Respondent filed a reply
brief. The General Counsel also filed cross-exceptions
and a supporting brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent violated Section
8(a)(1), (3), and (4) of the Act by discharging Charging
Party Ahern. The judge further found that the Respon-
dent violated Section 8(a)(1) by interrogating Ahern and
employee Bruce Pierson, and by threatening employees
that additional money damages would be sought against
Ahern if the Union had any involvement in his concerted
activity. We find, contrary to the judge, that the Respon-
dent did not violate the Act by discharging Ahern or by
interrogating Ahern or Pierson. We agree with the judge,
however, that the threat to employees violated Section
8(a)(1). Our reasons for so finding are set forth below.
Facts
This case involves allegedly unlawful conduct after a
January 9, 20043 election, which the Union lost. The
allegations stem from the conduct of Ahern, a press
maintenance technician on the second shift.

1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
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 All dates are in 2004, unless otherwise indicated.
Ahern had taken part in the organizing campaign by
attending campaign meetings before the election, wear-
ing and displaying union insignia, discussing the Union
while at work, distributing authorization cards and union
literature, serving as an observer during the election, and
participating in the election vote count. Ahern was also
one of several employees who testified on behalf of the
Union at a May 25, 2004 hearing before Administrative
Law Judge George Carson II concerning objections to
the election and alleged unfair labor practices.4 Ahern
also engaged in concerted activity in March 2004 when
he and other employees protested the termination of an-
other press maintenance technician, Michael Daniels.
Later, Ahern began focusing on the conduct of Super-
visor David Gaffka, the third-shift press maintenance
facilitator. Between May 25 and July 12, Ahern and two
other second-shift press maintenance technicians, Tho-
mas Griswold and Christopher Simmons, often discussed
Gaffka. The three employees were concerned that Gaf-
fka was complaining to supervisors in other departments
about the substandard work of employees when the three
believed that there were problems with the quality of
Gaffka’s own work. When Simmons saw Gaffka alleg-
edly treat another employee in the tool room badly and
then write him up for shoddy workmanship, the three
employees decided to try to get Gaffka demoted.
They decided to write an anonymous letter to the Re-
spondent’s president, Tokio Ogihara, which Ahern
agreed to draft. Simmons and Griswold suggested some
changes, which Ahern incorporated into the final draft.
Simmons also supplied photographs purportedly depict-
ing Gaffka’s work to include with the letter. The June 2
letter stated:
We are writing to you as a group of associates
both concerned, and disturbed by the conduct and
behavior of one of your Press Maintenance Facilita-
tors—Dave Gaffka. On several occasions Dave has
approached Troy Burley and other managers making
accusations of alleged mistakes made by their asso-
ciates in their work. Dave was threatening that he
would have people written up. Dave has been mis-
taken in many of these accusations—even accusing
people of things that happened on days they were
not even at work. This shows no regard for core val-
ues.

4 On November 30, 2004, the Board affirmed Judge Carson’s July
12, 2004 decision finding that the Respondent violated Sec. 8(a)(3) and
(1) by issuing an employee a written warning for distributing union
literature in a nonworking area on nonworking time, and that the elec-
tion should be set aside based on that violation. Ogihara America
Corp., 343 NLRB 809 (2004).
OGIHARA AMERICA CORP. 111
We feel that Dave lacks the proffesionalism [sic],
technical skills, and the people skills necessary to be
a facilitator at OAC. As a facilitator he is a repre-
sentative of OAC and creates a bad image of this
company. In this time of corporate cost cutting, we
respectfully request that you personally investigate
Dave’s usefulness and impact to OAC. Turning this
matter over to your management team will not solve
the problem, as some of your managers promote this
behavior. It is your choice to act on this matter or
not to, however many associates would welcome the
thought of you taking a more active part in manag-
ing the managers at OAC. If you choose not to re-
spond please keep this confidential.
Enclosed are photos of Dave’s own poor work-
manship.
Thank You for your attention to this problem.
Ahern, Griswold, and Simmons enclosed 11 photo-
graphs depicting areas, equipment, or machinery where
Gaffka worked during 2000 to 2004 that they believed
required corrective action. The photographs contained
captions pointing out what the employees believed were
the problems with Gaffka’s work.
Ahern, Simmons, and Griswold decided to send the
letter and photographs (the package) to Ogihara anony-
mously because they were concerned about reprisal if
they signed their names. On June 9, Ahern went to the
Federal Express (FedEx) service desk at a Kinko’s in
Novi, Michigan, to mail the package. A Kinko’s em-
ployee told Ahern that he had to complete the sender and
return address information on the FedEx label. Due to
the anonymous nature of the package and Ahern’s belief
that the Respondent would be hostile to him because of
his union activity, Ahern decided against using his own
name and address. Ahern instead used the name of an-
other press maintenance technician, Bruce Pierson, on
the return address label. Ahern knew that Pierson, a
first-shift employee, opposed union affiliation, and
Ahern believed that listing Pierson’s name on the return
address would be more likely to evoke a response from
Ogihara concerning the employees’ complaints. Ahern
did not use Pierson’s address as the return address. In-
stead, he looked in the telephone book for the address of
the county courthouse and wrote that address and a ficti-
tious telephone number on the label.
President Ogihara received the package on June 10.
At his direction, Production Manager Michael Zimmer-
man instructed Human Resources Executive Manager
Patrick Casady to investigate the letter’s allegations.
Casady, in turn, directed Executive Manager John
Ruhman to investigate the allegations.
Casady also met with Pierson on June 11. Casady
showed Pierson the letter and photographs and asked if
he had seen them before. Pierson denied sending them,
and Casady asked if Pierson knew who had sent them.
Casady told Pierson that they were trying to figure out
who might have sent the package. Casady asked Pierson
whether he might have enemies who could have sent the
package in his name, but Pierson maintained that he did
not know.
About June 21, Casady went to Kinko’s and spoke
with Lee Flamard, the assistant store manager, in an ef-
fort to find out who sent the package. Flamard told
Casady that Kinko’s had a videotape for the day the
package was sent, but that he could not release it without
a subpoena. Casady later met with Gaffka to elicit his
participation in a lawsuit against the person who sent the
package. Casady showed Gaffka the envelope, letter,
and photographs, and Gaffka told Casady that “a lot of
these were not correct.” Casady replied that the Respon-
dent was “doing an investigation into the whole pack-
age.”
Gaffka and Pierson agreed to be named plaintiffs in a
legal action and, on June 28, the Respondent arranged for
its counsel in this proceeding to commence a lawsuit in
Livingston County Circuit Court on behalf of Gaffka and
Pierson. The lawsuit charged “John Doe” defendants
with defamation and tortuous interference with employ-
ment when they sent the package to the Respondent, and
in connection with that action the Respondent requested
issuance of a subpoena to Kinko’s for the production of
the videotape.
The Respondent obtained a subpoena from the circuit
court and, on August 2, Kinko’s permitted Casady to
view the surveillance videotape for June 9. The tape
showed that Ahern had sent the package. Casady re-
turned to the facility and met with Zimmerman and
Ruhman. Subsequently, Casady decided to discharge
Ahern based on Ahern’s false designation of Pierson as
the sender of the package and the false allegations
against Gaffka.
On August 3, Casady instructed a supervisor to bring
Ahern to his office. When Ahern arrived, Casady
showed him the package and asked him if he knew any-
thing about it. Ahern denied any knowledge of the pack-
age and remained silent when Casady reviewed its con-
tents. Ahern did not respond when Casady told him that
he had been seen on the Kinko’s surveillance videotape.
Casady then told Ahern that his deceptive acts warranted
termination under the Respondent’s rules of conduct 19,
21, and 31.5

5 The rules read as follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD112
On August 4, Casady sent a letter to Ahern confirming
his termination, and he appended a completed “rules of
conduct violation form,” which stated:
On 8/3/04 it was discovered that Andy sent a package
from Kinko’s of Novi to Mr. Ogihara. The return ad-
dress indicated Bruce Pierson, Andy said Bruce had
nothing to do with it. The package contained a letter
and pictures (letter is attached).
The form listed the violated rules as 19, 21, and 31, and the
rule 31 violation was noted to be the “most severe.”
About 2 weeks after Ahern’s discharge, Casady met
with Simmons, Griswold, and other press maintenance
shift employees after the initial and amended charges in
this proceeding had been posted next to the employee
timeclock. Casady told the employees that he had heard
rumors about the circumstances leading to Ahern’s dis-
charge and he wanted to clarify the facts. He explained
that the discharge was related to Ahern’s transmission of
the package and that unnamed parties had responded by
filing a lawsuit for $25,000 in damages. Casady also
stated that the unnamed plaintiffs “may go in [the] direc-
tion” of suing for $25 million if the Union was deter-
mined to be involved.
Analysis
A. The 8(a)(1) Discharge Allegation
The judge found that the Respondent discharged Ahern
on August 3 in violation of Section 8(a)(1) of the Act,
concluding that Ahern was discharged for engaging in
protected concerted activity. We disagree. Assuming
arguendo that Ahern’s complaints about Gaffka—as as-
sembled in the package sent to Ogihara—were protected,
we find that Ahern lost the protection of the Act by de-
liberately falsifying the name of the sender of the pack-
age. Because Ahern was discharged for the unprotected
falsification of Pierson’s name on the package, we find
that Ahern’s discharge did not violate Section 8(a)(1).
In finding that Ahern did not lose the protection of the
Act by using Pierson’s name on the package, the judge
found that such conduct, “although less than virtuous and
obviously aggravating to Pierson,” was not so egregious
as to remove it from the protection of Section 7. The

19. Deliberate falsification of work sheets, official Company
administrative forms, personnel or employment records, medical
documentation, testimony at a Peer Review hearing, production
records, etc.
21. Displaying immoral conduct, participating in harassment
of any nature toward or about any Associate of the company.
31. Posting of materials, or the creating of graffiti with racial,
sexist or religious symbols, or threatening commentary which do
not reflect Ogihara’s Core Values and may be intimidating to
other Associates.
judge noted that the Board permits employees significant
leeway to make false statements while engaging in pro-
tected activity absent a showing of “deliberate falsity or
maliciousness.” The judge found that Ahern did not
have a personal motive in using Pierson’s name,6 and
that Ahern was legitimately concerned about reprisals
and the likelihood that Ogihara would not respond effec-
tively if he knew that Ahern had sent the package. The
judge found that using Pierson’s name had the effect of
keeping the letter anonymous. The judge therefore con-
cluded that under the circumstances, Ahern’s false in-
formation on the return address label was not so “oppro-
brious, profane, defamatory, or malicious” as to lose the
protection of the Act.7 He accordingly found that the
Respondent violated Section 8(a)(1) by discharging
Ahern for engaging in protected concerted activity.
The Respondent argues, among other things, that
Ahern lost the protection of the Act by deliberately falsi-
fying the name of the sender of the package, and that
Ahern was legitimately discharged for engaging in that
misconduct. We agree with the Respondent.8
The Board has held that where “an employee is dis-
charged for conduct that is part of the res gestae of pro-
tected activities, the relevant question is whether the
conduct is so egregious as to take it outside the protec-
tion of the Act, or of such character as to render the em-
ployee unfit for service.” Guardian Industries Corp.,
319 NLRB 542, 549 (1995), citing Consumers Power
Co., 282 NLRB 130, 132 (1986). Activity that would
ordinarily be protected under the Act may lose its protec-
tion if it “includes defamatory statements, bad-faith con-
duct, or deliberate and malicious falsehoods.”
HCA/Portsmouth Regional Hospital, 316 NLRB 919,
930 (1995).
As set forth above, we assume arguendo that the com-
plaints against Gaffka were protected and that those
complaints did not lose their protection because of their

6 The judge found that Ahern was not motivated by a desire to re-
place Pierson on the first shift because Ahern already knew that another
first-shift employee, Gary Babbitt, was retiring in August and that
Ahern was in line to replace him. The judge also found that Ahern
attempted to insulate Pierson from responsibility for sending the letter
by handwriting it and listing a clearly incorrect home address and tele-
phone number.
7 The judge also noted that the Board has “countenanced similar con-
duct” where an employee, in good faith, forged other employees’ signa-
tures on grievance forms, citing OPW Fueling Components, 343 NLRB
1034 (2004), enfd. 443 F.3d 490 (6th Cir. 2006); Roadmaster Corp.,
288 NLRB 1195, 1196 (1988), enfd. 874 F.2d 448 (7th Cir. 1989).
8 The Respondent also claims that Ahern lost the protection of the
Act by falsely portraying Gaffka’s job performance. We do not reach
that issue. For purposes of this discussion, we assume arguendo that
Ahern, Simmons, and Griswold were engaged in protected concerted
activity when they complained about Supervisor Gaffka’s work, and
that nothing in the content of the package lost that protection.
OGIHARA AMERICA CORP. 113
alleged falsity. We find, however, that Ahern lost the
protection of the Act because of his intentional falsifica-
tion of the name of the sender of the package. We con-
clude, contrary to the judge, that Ahern’s deliberate de-
ception was so egregious as to remove the sending of the
package from the protection of the Act.
The Board has held that “deliberate falsity” can cause
an employee to lose the protection of the Act.9 Similarly,
activity designed “to destroy the reputation and end the
employment of another employee” has also been found
to have lost protection.10 Ahern’s use of Pierson’s name
on the package was a “deliberate falsity” that had the
potential of harming Pierson’s reputation and jeopardiz-
ing his employment. At the time Ahern used Pierson’s
name on the package, Ahern feared that the Respondent
would retaliate against the sender of the package. Never-
theless, Ahern engaged in a deliberate deception by list-
ing Pierson as the sender of the package, even though
Ahern knew that Pierson had not authorized the use of
his name. Ahern thereby implicated Pierson in activity
that Ahern himself believed would anger the Respondent.
That Ahern may not have affirmatively intended to harm
Pierson, and may have believed that the use of a ficti-
tious address would ultimately absolve Pierson of any
actual repercussions from the sending of the package, is
not determinative. The fact remains that Ahern’s delib-
erate falsification posed a substantial risk to Pierson’s
reputation and employment status. Consequently,
Ahern’s misconduct is sufficiently egregious to cause
him to lose the protection of the Act.11 Because Ahern
was discharged for his falsification on the label of the
package he sent the Respondent, which falsification was
unprotected, we conclude that Ahern’s discharge did not
violate Section 8(a)(1) of the Act.

9 Guardian Industries, supra, 319 NLRB at 549.
10 HCA, supra, 316 NLRB at 931.
11 OPW Fueling Components, supra, 343 NLRB 1034, and Road-
master Corp., supra, 288 NLRB 1195, relied on by the judge, are dis-
tinguishable. Neither of those cases involved falsehoods intended to
implicate another individual in activity that the employee feared would
provoke employer reprisals. In addition, the falsehoods in those cases
were connected to the initiation of grievance procedures and were
arguably necessary to preserve employees’ grievances. By contrast,
here there was no necessary link between the falsity and the complaints
raised by the employees. Although the judge found that the use of
Pierson’s name aided in the employees’ quest for anonymity, Ahern did
not need to falsify the name of the sender of the package in order to
have the employees’ complaints brought before the Respondent. Thus,
Ahern’s falsity is not analogous to the ones in the prior cases, which
were found to be either “part and parcel of the grievance procedure,”
OPW Fueling Components, supra, 343 NLRB 1034, 1036, or “part of
the res gestae of the grievance procedure,” Roadmaster, supra, 288
NLRB at 1197.
B. The 8(a)(3) Discharge Allegation
The complaint alleges, and the judge found, that
Ahern’s discharge also violated Section 8(a)(3) of the
Act. In so finding, the judge applied Wright Line12 and
found that the General Counsel had met his burden of
showing that Ahern’s union activity was a motivating
factor in the Respondent’s decision to discharge him.
The judge also found that the Respondent had not met its
Wright Line burden of showing that it would have dis-
charged Ahern for his conduct when sending the package
even in the absence of his union activity. In finding that
the Respondent had not met its burden, the judge stated
that “the Respondent did not have legitimate grounds for
disciplining Ahern.” We disagree with the judge.
As we have found, the Respondent did have “legiti-
mate grounds for disciplining Ahern,” i.e., his unpro-
tected conduct of deliberately falsifying the name of the
sender of the package. Further, it is apparent from the
August 4 letter of termination that the Respondent relied
on those legitimate grounds in discharging Ahern. The
Respondent continues to maintain that Ahern’s use of
Pierson’s name on the package alone justified the termi-
nation. Thus, we disagree with the judge’s finding that
the Respondent’s reasons were “shifting and pretextual.”
Further, the Respondent considered Ahern’s conduct to
have violated several of its rules of conduct. There has
been no showing that the Respondent failed to discharge
other employees who engaged in comparable miscon-
duct.
In sum, assuming arguendo that the General Counsel
established that Ahern’s union activity was a motivating
factor in the Respondent’s decision to discharge Ahern,
we find that the Respondent has met its burden of show-
ing that it would have discharged Ahern for his deliber-
ate falsification, even in the absence of Ahern’s union
activity. Therefore, we reverse the judge’s finding that
Ahern’s discharge violated Section 8(a)(3) of the Act,
and we shall dismiss this allegation of the complaint.
C. The 8(a)(4) Discharge Allegation
The complaint also alleges, and the judge found, that
Ahern’s discharge violated Section 8(a)(4) of the Act.
The judge found that Ahern’s discharge was related to
his testimony at the May 25 hearing before Judge Car-
son. In so finding, the judge relied heavily on the “sus-
picious” timing of the discharge, which occurred less
than 1 month after Judge Carson issued his decision rec-
ommending a new election. Contrary to the judge, we
find that the General Counsel has not met his burden of
showing that Ahern’s testimony before the Board was a

12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD114
motivating factor in the Respondent’s decision to dis-
charge him.
Although the timing of a discharge may sometimes
suggest an unlawful motive, in this case the timing fails
to establish a nexus between Ahern’s testimony and the
decision to discharge him. Rather, the timing of the dis-
charge was related to the Respondent’s discovery of
Ahern’s deception. The Respondent learned on August 2
that Ahern sent the package. On August 3, after Ahern
was confronted with, and falsely denied, his misconduct,
he was promptly discharged. Thus, the record evidence
undercuts the judge’s speculation regarding a possible
relationship between Judge Carson’s decision and the
decision to terminate Ahern. Accordingly, we find that
the evidence fails to establish that Ahern’s discharge
related to his Board testimony, rather than to his unpro-
tected activity in connection with the sending of the
package.
For these reasons, we find that Ahern’s discharge did
not violate Section 8(a)(4) and (1) of the Act. Accord-
ingly, we shall dismiss this allegation.
D. Interrogations
The judge found that the Respondent violated Section
8(a)(1) of the Act on June 11, when Casady interrogated
Pierson about the package, and again on August 3, when
Ahern was called to Casady’s office and interrogated
about his involvement with the package. We disagree.
The Respondent interrogated both Pierson and Ahern
as to whether they sent the package. As discussed above,
we have found that the sending of the package under
false pretenses was not protected. The Respondent’s
interrogations of Ahern and Pierson in an effort to de-
termine who sent the package were merely part of the
Respondent’s legitimate investigation of unprotected
conduct. Accordingly, we find that the interrogations
would not reasonably tend to restrain, coerce, or interfere
with rights guaranteed by the Act. See, e.g., HCA, supra,
316 NLRB at 931 (interrogation did not violate the Act
where “the conduct about which the interrogation took
place was not protected”). We shall therefore dismiss
this allegation.
E. Alleged Threat
The judge found that after Ahern’s discharge, Casady
told employees that unnamed plaintiffs had commenced
a lawsuit for $25,000 against the sender of the package,
but if the Union was found to have been involved, the
plaintiffs “may go in [the] direction” of suing for $25
million.13 The judge noted that Casady did not qualify

13 The judge discredited Casady’s testimony that an employee, rather
than Casady, suggested the $25 million figure.
his statement regarding the lawsuit to exempt Ahern
from such additional monetary exposure. Because the
Union was not a defendant, and there was no indication
that it would become a defendant, a “reasonable under-
standing” by employees who heard Casady’s remarks
would be that Ahern could be liable for up to $25 million
for engaging in protected concerted activity. The judge
found that under these circumstances, Casady’s state-
ment was “objectively calculated” to restrain employees
in the exercise of their Section 7 rights and therefore vio-
lated Section 8(a)(1).14
For the following reasons, we agree with the judge that
the Respondent’s threat was coercive and violated Sec-
tion 8(a)(1). The Respondent’s statement that the plain-
tiffs in the lawsuit would seek $25 million (rather than
$25,000) if the Union were found to have been involved
in the sending of the package conveyed the message that
Ahern could be liable for a much larger damage award if
he engaged in union activity. Although we have found
that the sending of the package was unprotected,
Casady’s threat that Ahern would be liable for additional
damages if the Union participated in sending the package
was nevertheless coercive because it implied that there
could be an additional monetary penalty for involvement
with the Union. Such a statement would reasonably tend
to interfere with the employees’ willingness to seek the
Union’s assistance and to involve the Union in work-
place issues, and would thereby restrain employees in the
exercise of their Section 7 right to engage in union activ-
ity. Accordingly, we agree with the judge that the state-
ment violated Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening employees with a monetary penalty
if they engage in union activity, the Respondent violated
Section 8(a)(1) of the Act.
4. By engaging in the conduct described above, the
Respondent has committed unfair labor practices affect-

14 The judge distinguished his prior decision in Richard Lawson Ex-
cavating, Inc., Case 6–CA–33928 (2005), a case cited to him by the
Respondent. In its exceptions, the Respondent continues to rely on the
judge’s decision in Richard Lawson Excavating. However, on May 27,
2005, the Board issued an Order in Richard Lawson Excavating grant-
ing a joint motion to remand the proceeding to the Regional Director
for further appropriate action pursuant to the terms of a non-Board
resolution. Accordingly, no Board decision was issued in Richard
Lawson Excavating and that case does not constitute a precedent.
OGIHARA AMERICA CORP. 115
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
5. The Respondent has not otherwise violated the Act
as alleged.
ORDER
The National Labor Relations Board orders that the
Respondent, Ogihara America Corporation, Howell,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with a monetary penalty if
they engage in union activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facility in Howell, Michigan, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 17, 2004.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten employees with a monetary pen-
alty if they engage in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
OGIHARA AMERICA CORP.
Erikson C. N. Karmol and Jennifer Y. Brazeal, Esqs., for the
General Counsel.
Russell S. Linden and Sean F. Crotty, Esqs. (Honigman, Miller,
Schwartz and Cohn, LLP), of Detroit, Michigan, for the Re-
spondent.
Bruce A. Miller, Esq. (Miller Cohen, PLC), of Detroit, Michi-
gan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case
was tried in Detroit, Michigan, on May 17–19, 2005. The
charge in Case 7–CA–47942 was filed by the International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, AFL–CIO (the Union) against
the Ogihara America Corporation (the Respondent) on Septem-
ber 29, 2004.1 The charge in Case 7–CA–48024 was filed by
Leo Andre Ahern (Ahern) on October 22. An order consolidat-
ing cases, consolidated complaint, and notice of hearing issued
on November 23.
This proceeding involves the commission of alleged unfair
labor practices by the Respondent in the aftermath of the Un-
ion’s 2003–2004 organizing campaign and during the pendency
of the Board proceeding that followed. The consolidated com-
plaint alleges the unlawful discharge of Leo Andre Ahern, an
active union supporter, on August 3 in violation of Section
8(a)(1), (3), and (4) of the National Labor Relations Act (the
Act). It also alleges three violations of Section 8(a)(1): the

1 All dates are in 2004 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD116
coercive interrogation of employee Bruce Pierson on June 11;
the coercive interrogation of Ahern, the discriminatee, on Au-
gust 3; and, later in August, threatening employees that the
Respondent would seek additional money damages against
Ahern if it was determined that the Union had any involvement
in his protected concerted activity. The Respondent’s answer
denies any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Howell, Michigan, is engaged in the manufacture
and nonretail sale of automobile parts. In conducting its busi-
ness, the Respondent annually derives gross revenues in excess
of $500,000, and purchases and receives goods and materials
valued in excess of $50,000 directly from points located outside
the State of Michigan. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent further
admits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The 2003–2004 Organizing Campaign
This controversy has its genesis in the organizing campaign
undertaken by the Union and the Respondent’s employees in
October 2003. The Respondent responded to that effort by
holding mandatory group meetings with employees to express
its views regarding unionization. At these meetings, the Re-
spondent’s management staff implored employees to reject
union affiliation.2 Those views, however, were already well
known to employees based on the Respondent’s associate
handbook (employee handbook), which was effective March 1,
2002.3
At Ogihara America Corporation, every member of the
management team is committed to the Company’s phi-
losophy of fair and impartial treatment of our Associates at
all times. Associates are always free to speak to their Fa-
cilitator/Supervisor, or any member of the management
team, to raise and get answers to any questions that may
be on their minds. Every Associate is treated as an indi-
vidual and as an important participant in the operation of
our Company. We hope to maintain this open and long-
standing relationship.
Ogihara America Corporation strongly believes that
individual consideration in Associate-supervisory relation-
ships provides the best climate for maximum development
of teamwork and the attainment of our goal. We do not
believe union representation for our Associates would be

2 This finding is based on the unrefuted testimony of employee
Thomas Griswold and former employee Michael Daniels. Tr. 223,
337–338.
3 GC Exh. 4 at 11–12.
in the best interest of our Associates, the Company or our
customers.
We have enthusiastically accepted our responsibility to
provide you with good working conditions, good wages
and benefits, fair treatment and the personal respect, which
is rightfully yours. This is our commitment to each other
and need not be “purchased from an outside third party.”
The dues, initiation fees, possible fines, assessments and
costs imposed by unions on their members are unneces-
sary burdens. Threats of strike and conflict create an an-
tagonistic environment.
At our Company, you have the opportunity to express
your problems, suggestions, and comments to us directly
so we can understand them better. We can continue this
longstanding policy without a union. We will continue to
listen and do our best to be responsive to your needs.
On December 15, 2003, the Union filed a representation peti-
tion in Case 7–RC–22589. On December 23, 2003, the Re-
gional Director approved a stipulated agreement between the
Union and the Respondent providing for a representation elec-
tion by the Respondent’s 323 full-time and regular part-time
production and maintenance employees.
The representation election was conducted on January 9.
The Union received 148 votes, 150 employees voted not to be
represented by the Union, and the Union challenged 9 ballots.
The Union subsequently withdrew its challenges, resulting in
159 votes against representation.4 On January 16, the Union
filed objections to the election. On January 21, the Union filed
unfair labor practice charges alleging that the Respondent ille-
gally disciplined employee Stefan Mikulka because of his un-
ion activities. On April 6, the Regional Director issued com-
plaints in Cases 7–CA–47071 and 7–RC–22589, and consoli-
dated them for hearing.
A hearing was held before Administrative Law Judge
George Carson II on May 25. On July 12, Judge Carson con-
cluded that the Respondent violated Section 8(a)(1) by “inter-
fering with the right of employees to distribute protected union
literature in nonworking areas when neither of the employees
involved is on working time.” He also concluded that the Re-
spondent violated Section 8(a)(1) and (3) by disciplining em-
ployee “Stephan Mikulka for distributing protected union litera-
ture in a nonworking area when neither Mikulka nor the recipi-
ent to whom he distributed the literature was on working time.”
As a result, Judge Carson issued an order setting aside the elec-
tion and permitting the Regional Director “to conduct a second
election when he deems the circumstances to permit a free
choice.” On November 30, the Board issued a decision essen-
tially upholding Judge Carson’s decision.5
B. The Charging Party’s Concerted Activity
Ahern, a press maintenance technician on the second (after-
noon/evening) shift, played an active role in the organizing
campaign. He attended all of the campaign meetings prior to
the election on January 9, wore and displayed union insignia,
engaged in union-related discussions while at work, distributed

4 GC Exh. 7(a)–(c).
5 Ogihara America Corp., 343 NLRB 809, 810–812 (2004).
OGIHARA AMERICA CORP. 117
authorization cards and union literature, served as an observer
during the election, and was the only employee involved in
counting the votes. During the counting, the Respondent’s
president, Tokio Ogihara (Ogihara), was present along with
Human Resources Manager Director Patrick Casady, Produc-
tion Manager Michael Zimmerman, Executive Manager John
Ruhman, and other management personnel. Ahern was also
one of several employees who testified on behalf of the Union
at the hearing before Judge Carson. There were at least five
managers present in the hearing room as he testified: Zimmer-
man, Casady, Jeffrey Hughes, Scott Thompson, and Gayle
Courtman.6
Ahern’s concerted activity was not, however, limited to the
organizing campaign, the election, and his hearing testimony.
In March, another press maintenance technician, Michael
Daniels, was terminated. Ahern and several other employees
felt that Daniels was unjustly discharged. Ahern telephoned
Casady and requested a meeting to discuss the termination.
Later that day, Ahern, Christopher Simmons, and Steve Aness
approached Casady and expressed their concerns. Casady
agreed to look into the matter. He got back to Ahern later that
day. Casady told him that Daniels’ supervisor recommended
termination because he did not complete projects on time.
Ahern disagreed with that explanation, but Casady did not re-
spond.7
Subsequently, Ahern turned his focus toward David Gaffka,
the third-shift press maintenance facilitator. Prior to July 12,
Gaffka, along with Bruce Russell, jointly supervised the second
shift. On July 12, Michael Killips was hired as the second-shift
supervisor. Between May 25 and July 12, Ahern, Griswold,
and Simmons, all second-shift press maintenance technicians,
frequently discussed Gaffka. They were troubled that Gaffka, a
known opponent of the Union, was complaining to supervisors
in other departments about the substandard work of their em-
ployees, while “the quality of his own work wasn’t that high.”
The tipping point, however, was when Simmons saw Gaffka
harass another employee in the tool room and then wrote him
up for shoddy workmanship.8
1. The letter
Disturbed by their belief that the quality of Gaffka’s work
contradicted his expectation of employee performance, Ahern,
Griswold, and Simmons decided to try to have him demoted.
They spoke previously to another press maintenance facilitator,
Bruce Russell, and Assistant Department Manager Brett Poe
about Gaffka’s work. However, no one followed up on their

6 Ahern’s union activity is not in dispute. Tr. 26–33, 87–88, 93–95,
98–100; GC Exh. 6(a). Simmons, Daniels, and Griswold all credibly
testified that he was a leader in the campaign. Tr. 162, 218, 336, 400.
7 This exchange is background only and not the subject of a charge.
Tr. 34–36, 164–165.
8 Ahern testified as to his belief that Gaffka’s work was not very
high. Tr. 36–39. Simmons testified that Gaffka’s work was “usually
quite sloppy” and created more work for others. Tr. 166–167. Gris-
wold testified that many employees were dissatisfied with the quality of
Gaffka’s work. In addition, Gaffka treated other employees poorly. Tr.
340, 370–373.
complaints.9 Accordingly, they decided to write an anonymous
letter to Ogihara. Ahern agreed to draft it. After showing Sim-
mons and Griswold a draft, Ahern incorporated their suggested
changes. In addition, Simmons supplied photographs demon-
strating Gaffka’s work to include with the letter. He either took
the photographs or they were already stored on his computer.10
The letter, dated June 2 and addressed to Ogihara, stated:
We are writing to you as a group of associates both
concerned, and disturbed by the conduct and behavior of
one of your Press Maintenance Facilitators—Dave Gaffka.
On several occasions, Dave has approached Troy Burley
and other managers making accusations of alleged mis-
takes made by their associates in their work. Dave was
threatening that he would have people written up. Dave
has been mistaken in many of these accusations—even ac-
cusing people of things that happened on days they were
not even at work. This shows no regard for core values.
We feel that Dave lacks the professionalism [sic],
technical skills, and the people skills necessary to be a fa-
cilitator at OAC. As a facilitator he is a representative of
OAC and creates a bad image of this company. In this
time of corporate cost cutting, we respectfully request that
you personally investigate Dave’s usefulness and impact
to OAC. Turning this matter over to your management
team will not solve the problem, as some of your managers
promote this behavior. It is your choice to act on this mat-
ter or not to, however many associates would welcome the
thought of you taking a more active part in managing the
managers at OAC. If you choose not to respond please
keep this confidential.
Enclosed are photos of Dave’s own poor workman-
ship.
Thank you for your attention to this problem.
2. The photographs
Ahern, Griswold, and Simmons enclosed 11 photographs
fairly and accurately depicting areas, equipment, or machinery
where Gaffka worked at or with during the period of 2000 to
2004 that required corrective action. They were familiar with
Gaffka’s work because it was their respective jobs to repair
equipment and machinery.11 Ahern, in particular, was well

9 Neither Russell nor Poe was called to rebut the credible testimony
of Ahern, Simmons, and Griswold regarding their views and com-
plaints about the quality of Gaffka’s work. Tr. 53, 56, 61, 114, 180,
199, 344–354. I did not, however, rely on Daniels’ testimony that Brett
Poe often referred to Ahern as “angry Andy” and stuck his tongue out
at him behind his back. Although this occurred on one occasion during
the height of the organizing campaign, there was no clear indication
that it was due to Ahern’s allegedly “angry” nature, his union support
or something else. Tr. 225–227.
10 Tr. 39–40, 167–170, 339–340, 388; GC Exhs. 8(b), 9.
11 Ahern, Simmons, and Griswold provided fairly consistent and
credible testimony regarding their familiarity with the conditions de-
picted in the photographs. Tr. 48–49, 128, 131–132, 156, 171, 187,
201, 354, 398.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD118
qualified as a press maintenance technician, having served in
that capacity since 1989.12
Photograph 1 depicted a hole in an electrical junction box
and cord with exposed wires that was installed by Gaffka in
2000. The installation violated electrical code standards and
presented a shock hazard. The caption beneath the picture
asked, “Is this up to NEC Code Standards?” The answer that
followed stated that “[a] cord should never enter a junction box
without use of a grommet or strain relief. This is a serious
violation of the NEC Standards.”13
Photograph 2 showed a B-line vision system installed by
Gaffka in 2001. The caption beneath the photograph stated, the
“B-Line vision system hasn’t worked for a long time.” The
Respondent was aware that the system had not been operational
for a while and was considering replacing it. The unavailability
of the vision system made B-line production more difficult.14
Photograph 3 depicted five electrical wiring panels installed
by Gaffka in 2000. The caption stated, “No numbering on wire
labels on the left. This is difficult to work on and could be
hazardous. Installed by David Gaffka.” The fact that these
panels were unlabeled made it more difficult and hazardous to
trace the wiring and determine the electrical voltage carried by
each.15 Griswold complained about this condition to Russell.16
Photograph 4 depicted another electrical wiring panel in-
stalled by Gaffka in 2000. The caption states that “[t]his is
common of Dave, no labels.” This electrical panel did, in fact,
create difficulty for Griswold when he had to replace the sys-
tem in December 2004. As a result, he needed to consult with
Gaffka to determine the nature of the wiring involved.17
Photographs 5 and 6 depict a press loader. However, photo-
graph 5 showed an energy-saving vacuum pump that Gaffka
installed on the loader, while photograph 6 showed the loader

12 Ahern had an associate’s degree in robotics technology and com-
pleted several training courses given by the Respondent in welding,
operations, and statistical control. GC Exh. 3(a).
13 It was undisputed that Gaffka performed this installation and that
it required repair work. GC Exh. 9(1); Tr. 49–51, 176, 342, 587–591,
623.
14 Ahern credibly testified that he saw Gaffka install the system in
2001, while Casady conceded that this was Gaffka’s work and there
was “nothing” false about the picture. GC Exh. 9(2); Tr. 52, 506, 535,
591. In addition, Simmons credibly testified that the nonfunctioning
system would have made the work of B-line operators more difficult.
Tr. 178.
15 It is undisputed that Gaffka installed the wiring in or around 2000.
Tr. 54–55, 593. In addition, Griswold, Simmons, and Daniels credibly
testified that this condition made “troubleshooting virtually impossi-
ble.” Tr. 180, 228, 345. Gaffka, on the other hand, asserted that the
unlabeled wiring did not create a problem with safety or production.
Tr. 594. He did admit, however, that maintenance technicians would
have to troubleshoot the system. Tr. 605.
16 This finding is based on Griswold’s credible testimony that he dis-
cussed this condition with Russell. Tr. 346. I did not, however, credit
Ahern’s uncorroborated hearsay testimony that Russell, in turn, dis-
cussed the condition with him. Tr. 56.
17 It is also undisputed that Gaffka installed this panel. Tr. 57, 594.
Furthermore, Griswold’s credible testimony that the condition delayed
his work was corroborated by Gaffka’s concession that maintenance
technicians would be responsible to perform repairs on any of the wires
involved in the picture. GC Exh. 9(4); Tr. 347–348, 605.
before the pump was installed. The caption on photograph 5
urged the reader to “compare this loader with the next page to
see the extra equipment installed. It doesn’t seem necessary, it
costs more in downtime.” The caption on photograph 6 as-
serted that it depicted “a nice clean loader, has worked fine for
a long time.” The operation of this pump system gave rise to
problems and resulted in the loss of productivity over a 7-
month period.18
Photograph 7 provided yet another fair and accurate por-
trayal of an unlabeled electrical wire panel. The caption de-
scribed the photograph as a display of “exposed wiring, poor
connections, lack of labels.” The panel was among several that
had either been wired or supervised by Gaffka. The installation
caused the alarm system to malfunction and created problems
for Griswold and Simmons; Griswold found it hard to trouble-
shoot the system since he did not know where to connect some
of the wiring, while Simmons once received an electric shock
when the wiring became loose.19
Photographs 8 and 9 depicted areas where Gaffka performed
work and are each captioned as “a picture of a work area after
Dave had finished.” Photograph 8 showed a ladder lying on the
ground and posed a tripping hazard. Photograph 9 depicted an
uncovered gearbox with a rotating drum that could cause seri-
ous injury to a worker’s hand.20 In any event, the conditions
depicted in the photographs violated the Respondent’s policy
that work areas be cleaned up at the end of each shift.21
Photographs 10 and 11 depict the electrical outlet connec-
tions for the B-line vision system. The caption for photograph
10 states, “Note the one cord plug in below, two power strips,
one cord.” Photograph 11 did not have a caption, but showed
an electric cord plugged into an outlet. The photographs fairly
and accurately depicted the vision system’s electrical connec-

18 Gaffka concurred with Ahern, Simmons, and Griswold that prob-
lems with the pump, which he installed, resulted in production prob-
lems over a 7-month trial period. GC Exh. 9(5)–(6); Tr. 59, 182–183,
348–350, 603, 613. Furthermore, Casady conceded that criticism over
the pump, which cost “tens of thousands of dollars,” was not a dis-
chargeable offense. Tr. 509, 536–537.
19 Simmons and Griswold credibly testified that Gaffka was respon-
sible for this project. In addition, Ahern and Simmons credibly testi-
fied that they discussed this problem with Russell. GC Exh. 9(7); Tr.
61–62, 184, 351–352. Gaffka did not refute their contention that he
was responsible for this work and, in fact, conceded that he installed the
wiring on some of these machines. He also conceded that the exposed
wiring shown created a safety problem for maintenance technicians.
GC Exh. 9(7); Tr. 598–599, 605, 614.
20 I did not find Casady to be a credible witness. His testimony was
permeated by inconsistent, shifting versions of his conversations with
the persons affected by the package—Pierson and Gaffka. In any
event, Casady testified that Gaffka denied leaving the mess shown in
the photograph, but did not deny that he worked in that area. Tr. 538,
601. Casady also conceded that there was “nothing” false about photo-
graph 8. Tr. 537. Accordingly, I based this finding on Ahern’s credi-
ble testimony that he saw Gaffka descend from the top of the press on a
ladder when this work was done during the 2004 Easter holiday shut-
down. Tr. 62–63.
21 It was not disputed that this messy condition was unacceptable.
Tr. 64, 185, 352, 510.
OGIHARA AMERICA CORP. 119
tions, which Gaffka worked on in 2003 and 2004.22 Ahern,
Simmons, and Griswold felt that the condition shown presented
a problem for the maintenance technicians.23
3. The transmission of the letter and photographs
Ahern, Simmons, and Griswold decided to transmit the letter
and photographs (the package) anonymously due to their con-
cern about reprisal if they signed their names. On June 9,
Ahern went to the Federal Express (FedEx) service desk at a
Kinko’s office supply store in Novi, Michigan, to mail the
package. A Kinko’s employee instructed Ahern to complete
the sender and return address information on the FedEx label.
However, given the anonymous nature of the package and his
belief that the Respondent would be hostile toward him because
of his union activity, Ahern decided against using his own
name and address on the label. Another press maintenance
technician, Bruce Pierson, was the first person to come to mind,
and Ahern listed his name instead.24 At the time, Ahern knew
that Pierson, a first (day) shift employee, was opposed to union
affiliation and, therefore, listing his name on the return address
would be more likely to evoke a response from Ogihara.25 As a
return address, Ahern looked in the telephone book, came up
with the address for the county courthouse—204 Highland
Way, Howell, Michigan 48843—and wrote it and a fictitious
telephone number on the label.26
4. The Respondent’s formal complaint procedures
The approach used by Ahern to transmit the package is the
major issue in this case. By sending a confidential letter di-
rectly to Ogihara, he and his cohorts ignored two approaches
prescribed in the Respondent’s employee handbook for submit-
ting concerns to management: an open door policy and a “blue
press” procedure.

22 Simmons and Griswold credibly testified that they saw Gaffka
work on the equipment over a period of time in 2003 and 2004. Tr.
201–203, 353.
23 Gaffka and Casady confirmed the credible testimony by Simmons
and Griswold that the conditions depicted made troubleshooting diffi-
cult and needed to be cleaned up. Tr. 187, 511, 539, 541. Gaffka also
confirmed that the wiring was cramped and complicated the work of
maintenance technicians. Tr. 598, 606.
24 The weight of the credible evidence supports the testimony of
Ahern, Simmons, and Griswold that they initially intended to send
Ogihara an anonymous package and that it was Ahern’s decision to add
Pierson’s name at the FedEx service desk. Tr. 45, 205, 378.
25 I credited Ahern’s assertion that he did not use Pierson’s name for
the purpose of getting him fired, thereby enabling Ahern to move into
the more desirable first shift. Although Ahern would have preferred to
be on the day shift, he was next in line for an opening on the day shift
and Gary Babbitt, a maintenance technician on the day shift, had an-
nounced previously that he would be retiring in August. He, in fact, did
retire in August. Tr. 120, 150–151, 155, 210.
26 Under the circumstances, I credited Ahern’s assertion that he rea-
sonably believed that the package would not result in the Respondent
taking adverse action against Pierson. Tr. 70–72, 102, 120–122, 143.
First, Pierson was opposed to the Union. Secondly, it would be obvi-
ous to an employer that an employee openly filing a written complaint
with management would be unlikely to use a fictitious address. Indeed,
Casady confirmed this when he cross-referenced Pierson’s home ad-
dress on file with the telephone book. Tr. 542–543.
The Respondent’s “open door philosophy” provides a proc-
ess for the submission of job-related concerns. The process
starts with a consultation with that employee’s facilita-
tor/supervisor, but provides for an initial consultation with “a
member of Management concerning a private matter.” It fur-
ther states that “[y]our concerns will remain confidential while
being addressed promptly and with respect.” The “problem
solving” procedure that follows notes that it is an employee’s
right to take any concern “‘to the top,’ if you wish” and pro-
vides four steps an employee can take:
1. Discuss the issue that is bothering you with your
immediate Facilitator/Supervisor. He/she works with you
every day and is personally interested in your welfare.
He/she knows you and your job better than anyone else
and can help address your concerns promptly and fairly.
2. If your concern has not been satisfactorily resolved,
or if there is some reason you do not wish to bring the
problem to your Facilitator/Supervisor, you may take the
problem to your Department Manager or Assistant De-
partment Manager. Talk open and frankly with him or
her. He or she will make every reasonable effort to re-
solve your problem at this level.
3. In the event your problem has not been satisfacto-
rily resolved, you may contact an Associate Relations
Representative. He or she will listen to your concerns, and
discuss possible solutions with you.
4. If all other attempts at solving your concern have
been unsuccessful, you may make advance arrangements
to meet with any member of staff, management team, or
the Company President as a final step. Their door is open
to you.27
The next section in the employee handbook contains the Re-
spondent’s “Employment Philosophy.” That section states, in
pertinent part, that “[a]ssociates are always free to speak to
their Facilitator/Supervisor, or any member of the management
team, to raise and get answers to any questions that may be on
their minds.”28
The Respondent’s blue press procedure began in March
2004, and invites employees to submit opinions, complaints,
and concerns to a group of four employees. That group is re-
sponsible to “collect concerns from the boxes regularly and will
analyze and compile them for trends. They will then be taken
to Management to determine if something can be done to cor-
rect the concerns. Follow-up to OAC Associates will be pro-
vided through newspaper articles.”29
Ahern, Griswold, and Simmons never considered using the
blue press procedure. Although the procedure provided for
confidentiality and anonymity, they wanted their complaint to
go directly to the top.30 Furthermore, they were also aware of
the fact that the blue press procedure did not result in a re-
sponse to every complaint or suggestion.31

27 GC Exh. 4, p. 11.
28 Id.
29 GC Exh. 10; Tr. 45.
30 Tr. 42, 119, 189, 379.
31 Griswold credibly testified that, although the blue press was never
officially dismantled, it was not really active. He used it once in March
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD120
C. The Respondent’s Response to the Charging Party’s
Concerted Activity
Ogihara received the package on June 10. At his direction,
Zimmerman met with Casady and asked him to investigate the
allegations in the letter. As Casady’s technical knowledge of
the photographed equipment was limited, however, he directed
Ruhman to investigate the allegations.32 Casady also decided
to meet with Pierson.
On June 11, Casady met with Pierson. He showed Pierson
the letter and pictures, and asked if he had seen them before.
Pierson denied sending them. Casady believed him, since he
had checked out the return address on the package and already
determined it was not Pierson’s home address. Nevertheless,
Casady continued to interrogate Pierson in an attempt to deter-
mine who sent the package. Casady even asked Pierson
whether he might have enemies who may have sent the package
in his name. Pierson maintained that he did not know. During
this meeting, which lasted approximately 20–30 minutes,
Casady did not tell Pierson that Gaffka was being investi-
gated.33
At or around the time that Casady was meeting with Pierson,
Ruhman gave a copy of the photographs to Brett Poe, a mainte-
nance manager. Poe, in turn, showed the photographs to Gaf-
fka. Gaffka merely “flipped through” the photographs and
returned them to Poe; he did not go to the areas depicted in the
photographs for a comparison. Gaffka spoke to Ruhman the
following day. He confirmed that he was responsible for some,
but not all, of the conditions depicted in the photographs.34
This was undoubtedly an act of self-preservation on Gaffka’s
part, as he knew that Ruhman was “very close to Mr. Ogihara.”
Aside from that discussion with Gaffka, Ruhman did not inves-
tigate the conditions depicted in the photographs.35

2004 to send a letter with four concerns, but the Respondent never
posted a response to three of his concerns. Tr. 355–356. Simmons
testified that the blue press suggestion boxes had “become pretty much
a garbage bin.” Tr. 188–189.
32 Ruhman did not testify, but there is no dispute as to Casady’s ini-
tial action. Tr. 430–431, 498–504, 558, 567.
33 Casady’s testimony regarding his conversation with Pierson was
simply not credible and, instead, I relied on Pierson’s credible version
of the meeting. Pierson testified that Casady told him they were trying
to determine who sent the package. Upon denying it, Casady asked
whether Pierson might have enemies who may have sent the package.
There was no mention of an investigation into Gaffka’s work. Tr. 250–
258. Casady, on the other hand, initially testified that he met with
Pierson in order to “get a better understanding of what the issues were
regarding Mr. Gaffka” and had no reason to doubt Pierson’s statement
that he did not send the package. He conceded, however, that he could
have investigated the allegations without talking with the sender of the
package. Tr. 498–499. Casady later changed his testimony by assert-
ing that he had lingering doubts about Pierson’s denial. Tr. 543–548.
34 The evidence as to the dates is spotty, but it appears that this dis-
cussion occurred within several days after Ogihara received the pack-
age. Tr. 626–627.
35 Gaffka testified that Poe, Ruhman, and Casady never asked him
whether he performed the work depicted in the photographs. Tr. 601,
621. Casady, on the other hand, provided conflicting accounts of Gaf-
fka’s role. In one instance, he testified that he did not know why
Ruhman directed Gaffka to investigate himself. Tr. 558. In other in-
Ruhman reported Gaffka’s comments to Casady and Zim-
merman at a meeting on or about June 21.36 Ruhman con-
firmed that the photographs were accurate representations of
the objects depicted and either warranted corrective work or
were already under review. These conditions included: an in-
operable vision system in photograph 2; unlabeled and im-
proper wiring in the photographs 3 and 4; an experimental
piece of compressor-related equipment that cost “tens of thou-
sands of dollars” in photographs 5 and 6; a messy and unpro-
fessional work area in photographs 8 and 9; and improper elec-
trical wiring that “needed to be cleaned up.”37
Nevertheless, even though he knew that the mere transmis-
sion of the letter did not violate any of the Respondent’s proce-
dures and that the photographs had merit, Casady was still de-
termined to find out who sent the package.38 On or about June
21, Casady went to Kinko’s and spoke with Lee Flamard, the
assistant store manager. Flamard informed Casady that
Kinko’s possessed a videotape for the day the package was
sent, but he could not release it without a subpoena. Casady
returned to his office and met with Gaffka for the purpose of
eliciting his participation in a lawsuit against the person sent
the package.39 Casady showed Gaffka the envelope, letter, and
photographs. Gaffka merely looked at the photographs and told
Casady that “a lot of these were not correct.” Casady re-
sponded that the Respondent was “doing an investigation into
the whole package.” However, Casady did not request that
Gaffka provide him with a verbal or written response to the
allegations in the letter and photographs.40 In fact, even though

stances, he conceded that he actually relied on Gaffka to conduct an
investigation of his own conduct. Tr. 479, 567–568.
36 Although Ruhman did not testify, I credit Gaffka’s testimony that
he spoke to him about the photographs during this period of time. Tr.
627. However, Casady and Gaffka provided conflicting testimony as to
whether Gaffka attended this meeting, which took place within 1 to 2
weeks after the package arrived. Casady provided inconsistent testi-
mony as to whether Gaffka attended, while Gaffka testified that he met
separately with Casady, just before the lawsuit was filed. Tr. 502–504,
585. I found Gaffka to be the more reliable witness and adopted his
version.
37 Casady conceded that either Ruhman or Gaffka was going to issue
appropriate work orders. Tr. 505–512, 535–541. Furthermore, the
General Counsel, relying on International Automated Machines, 285
NLRB 1122, 1123 (1987), requested an adverse inference that Ruhman,
a current supervisor who was not called as a witness by the Respon-
dent, would not have testified that the Respondent conducted a mean-
ingful investigation of the allegations. GC Br. at 49. I grant that re-
quest. See also K-Mart Corp., 336 NLRB 455 (2001); Jim Walter
Resources, 324 NLRB 1231, 1233 (1997).
38 Casady was not credible in his assertion that he needed to ascer-
tain who sent the package in order to “find out what the issues were and
try to determine who had the issues so that we could further investigate
Mr. Gaffka.” Tr. 431–433. He subsequently conceded that he could
have investigated the allegations without speaking to the person who
sent the package. Tr. 498–499.
39 I based this finding on the fact that Casady met with Gaffka during
the week prior to June 24, which was shortly before the filing of the
lawsuit on June 28. Tr. 585.
40 In its brief, the General Counsel requests that an adverse inference
be drawn against the Respondent for failing to comply with its sub-
poena. GC Br. at 53–55. That request is denied. The General Counsel
OGIHARA AMERICA CORP. 121
he spoke to several people during his investigation into the
package, Casady kept no notes regarding any of these conversa-
tions.41
Casady got Gaffka and Pierson to agree to be named plain-
tiffs in a legal action. On June 28, the Respondent arranged for
its counsel in this proceeding to commence a lawsuit in
Livingston County Circuit Court on behalf of Gaffka and Pear-
son. The complaint charged “John Doe” defendants with defa-
mation and tortuous interference with their employment when
they sent the package to the Respondent. In connection with
that action, the Respondent requested issuance of a subpoena to
Kinko’s for the production of the videotape.
In the meantime, several weeks passed without any signifi-
cant events. On July 29, or 17 days after Judge Carson’s deci-
sion issued, Ahern was having a conversation with coworkers
Simmons and David Hall. Casady passed Simmons and Hall,
walked directly up to Ahern, and asked where he had been
because he had not seen him lately. This was unusual, since
Ahern did not normally see or talk to Casady. On July 30, Kil-
lips, Ahern’s supervisor, approached him and asked what he
was discussing with the other employees when Casady ap-
proached him the day before.42
D. The Charging Party’s Discharge
By August 2, the Respondent succeeded in obtaining a sub-
poena from the circuit court. On that date, Kinko’s permitted
Casady to use their equipment to view their surveillance video-
tape for June 9. The tape revealed that Ahern sent the pack-
age.43 Casady returned to the facility, met with Zimmerman
and Ruhman, and informed them of his findings. After consult-
ing with Zimmerman, Casady decided to discharge Ahern
based on violations of “rules of conduct” 21 and 31. Casady’s
premise for invoking those provisions was Ahern’s false desig-
nation of Pierson as the sender of the package and the false
allegations against Gaffka.44 Casady made this recommenda-
tion even though he knew that it was not improper for an em-
ployee to send an anonymous letter expressing an opinion about

was given an opportunity, prior to the close of the record, to apprise the
Respondent as to the basis of such a motion. The General Counsel was
unable to articulate such a basis, especially with respect to the alleged
noncompliance with the subpoena. Tr. 630–631. There was extensive
discussion and testimony at the hearing about nonproduced documents,
including the extent to which any of the documents may fall within the
work product and attorney-client privileges against disclosure. Tr.
271–332. However, the primary focus seemed to be whether Gaffka
wrote comments on the photographs prior to Ahern’s discharge. In that
regard, Gaffka credibly testified that he made notes on the photographs
at the request of his attorney after Ahern’s discharge. Tr. 618–621.
41 Casady’s explanation that this did not involve a “complex issue”
simply was not credible since this was a “pretty serious matter” to the
Respondent. Tr. 305–306, 525.
42 This finding is based on the credible testimony of Ahern and
Simmons. Tr. 72–73, 144, 189. Casady and Killips, on the other hand,
did not offer rebuttal testimony on this issue.
43 Tr. 310, 433–439, 555–556.
44 Casady’s assertion that he wanted to “double check” with Ruhman
that the photographs were deceptive was not credible. Tr. 440–441,
513–514. As previously discussed, Casady met with Ruhman around
June 21, and was informed that several of the photographed conditions
and equipment required corrective action.
a supervisor.45 Furthermore, Ahern had no prior disciplinary
history.46
On August 3, Casady instructed Killips to bring Ahern to his
office. When Ahern arrived, Casady showed him the package
and asked him if he knew anything about it. Ahern denied any
knowledge about the package and remained silent as Casady
reviewed its contents. Ahern offered no response when Casady
told him that he had been seen on the Kinko’s surveillance
videotape. Casady then informed Ahern that his deceptive acts
warranted termination under rules 19, 21, and 31.47
On August 4, Casady sent a letter confirming Ahern’s termi-
nation and several enclosures: copies of the Respondent’s
“rules of conduct violation” form; the FedEx label; the June 2
letter to Ogihara; and a list of the rules he violated. The letter
also informed Ahern that he was “eligible for either a Peer Re-
view or Discipline Committee hearing if you so elect within 7
days. Please let me know if you wish either option. You may
also make a statement in this form and return it to me if you
wish.”48 The rules of conduct violation form, dated August 3,
stated the following “investigation” findings, which omitted
any reference to the allegations in the package regarding the
working conditions allegedly created by Gaffka:
On 8/3/04 it was discovered that Andy sent a package from
Kinko’s to Novi to Mr. Ogihara. The return address indicated
Bruce Pierson, Andy said Bruce had nothing to do with it.
The package contained a letter and pictures (letter is at-
tached).49
The form was signed by Killips and Poe and listed the vio-
lated rules as 19, 21 and 31. The rule 31 violation was noted to
be the “most severe” and the proposed action was termination.
An attached form contained definitions of the rules violations:
19. Deliberate falsification of work sheets, official
Company administrative forms, personnel or employment
records, medical documentation, testimony at a Peer Re-
view hearing, production records, etc.
21. Displaying immoral conduct, participating in har-
assment of any nature toward or about any Associate of
the company.
31. Posting of materials, or the creating of graffiti
with racial, sexist or religious symbols, or threatening
commentary which do not reflect Ogihara’s Core Values
and may be intimidating to other Associates.
The form also stated that a first offense of rules 19 and 21
would result in a final warning and a 3-day suspension, while
any violation of rule 31 would result in discharge.50 The hand-

45 Casady conceded that it was not a dischargeable offense to send an
anonymous letter complaining about a supervisor. Tr. 541–542.
46 Respondent’s counsel elicited this information on cross-
examination. Tr. 94.
47 Tr. 74–76, 145–146, 442–445.
48 GC Exhs. 12(a)–(e), 31(b).
49 Ahern and Casady provided conflicting testimony as to whether
Pierson’s name came up during the meeting. I credit Casady’s testi-
mony in this regard, as Ahern simply could not recall if it came up. Tr.
80, 444.
50 GC Exh. 13(b)–(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD122
book does not, however, define “core values.”51 Nor does it
address the case where an employee sends an anonymous letter
to Ogihara or another manager. In fact, the only provision in
the employee handbook dealing with honesty is found in “stan-
dards of conduct violations,” which include “[f]alsifying OAC
records or reports of any kind, or providing false information,
including personnel records, physician examinations, inventory
count, quality control reports and so on.”52 That provision does
not apply to the facts of this case.
Several days after his discharge, Ahern left a message on
Casady’s telephone voicemail requesting a peer review or hear-
ing before the disciplinary committee. Casady received the
call, but never returned it or followed up on Ahern’s request.53
The peer review provision, which did not specify that the re-
quest needed to be made in writing, stated that in part:
Nonexempt Associates who have successfully passed their in-
troductory period are eligible to exercise their option to have
the discipline reviewed provided they do so within 14 days of
receiving disciplinary action and follow the Committee Pro-
cedure.54
E. The Respondent’s Threats to Other Employees
Approximately 2 weeks after Ahern’s discharge, Casady met
with Simmons, Griswold, and other press maintenance shift
employees. By this time, the initial and amended charges in
this proceeding had been posted next to the employee time-
clock. Casady told the employees that he heard rumors about
the circumstances leading to Ahern’s discharge and wanted to
clarify the facts. He explained that the discharge was related to
Ahern’s transmission of the package and that unnamed parties
responded by commencing a lawsuit for $25,000 in damages.
Casady further noted that the unnamed plaintiffs “may go in
[the] direction” of suing for $25 million if the Union was de-
termined to be involved.55

51 Casady asserted that the rule 31 violation was based on Ahern’s
failure to adhere to the core value of integrity, which encompassed
honesty. Tr. 447–449. There is no such statement in the handbook.
Furthermore, when pressed on cross-examination, Casady explained
that the letter was “threatening” because Ahern listed Pierson’s name
on the return label was “intimidating” to Pierson and “the accusations
about Dave Gaffka and his work, which could’ve threatened his job.”
Tr. 516–517.
52 GC Exh. 4, p. 45.
53 Casady’s explanation—that Ahern never followed up the request
in writing—was not credible. He conceded that the employee hand-
book did not require such a request to be in writing and, in fact, pro-
vided that anyone with questions about the peer review rights should
contact him. Tr. 526–527, 561–562, 566–567.
54 GC Exh. 4, p. 46.
55 There is no dispute that Casady commented on Ahern’s concerted
activity in sending the package, as well as an increase in damages
sought if the Union was involved. Tr. 191, 359–360, 456. Casady did,
however, attempt to attribute the $25 million comment to a question
purportedly raised by Matt Manseur, a first-shift employee. I did not
find this explanation credible. There was no reference in the initial or
amended charges to the amount of a lawsuit against Ahern; nor was
there any indication how Manseur came up with that information.
Accordingly, I adopt the credible testimony of Simmons and Griswold
that Casady volunteered the $25 million comment. Tr. 457–459.
III. LEGAL ANALYSIS
A. The Charging Party’s Discharge
The consolidated amended complaint alleges that the Re-
spondent discharged Ahern on August 3 in violation of Section
8(a)(1), (3), and (4) because he engaged in union activity and
other concerted protected activity by sending the package. The
Respondent denies the allegations and contends that Ahern did
not engage in concerted protected activity because he falsely
listed Pierson as the sender of the package, and the allegations
were baseless and did not relate to actual conditions of em-
ployment.
1. The 8(a)(1) charge
Ahern was discharged because he sent the package to Ogi-
hara. As such, the relevant focus under Section 8(a)(1) is sim-
ply whether Ahern, in sending the package, was engaging in
“concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” Such Section 7 activity, how-
ever, must relate to the terms and conditions of employment in
order to enjoy protected status. The employee’s activity must
also “be engaged in with or on the authority of other employ-
ees, and not solely by or on behalf of the employee himself.”
Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984),
revd. sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985),
cert. denied 474 U.S. 948 (1985). If so, the only issue is
whether the employee lost the protection of the Act. Trade-
waste Incineration, 336 NLRB 902, 907 (2001); Felix Indus-
tries, 331 NLRB 144, 146 (2000).
Ahern, Simmons, and Griswold comprised a group of em-
ployees complaining about a supervisor whose work they per-
ceived as mediocre, thus creating more work and a more dan-
gerous working environment for them. Their initiative to get
him demoted, however, stemmed from their irritation that he
was being unduly tough on coworkers. As such, they enclosed
pictures to support their legitimate contentions about electrical
code violations, unlabeled electrical wiring, an ineffective
pump, exposed equipment, and sloppy work areas—all partially
or entirely attributable to Gaffka. Ahern’s action in sending the
package to Ogihara on behalf of himself, Griswold, and Sim-
mons thus came to the “mutual aid or protection” of coworkers
within the meaning of Section 7. NLRB v. Washington Alumi-
num Co., 370 U.S. 9, 17 (1962); RGC (USA) Mineral Sands,
Inc., 332 NLRB 1633, 1641 (2001). Even aside from concerns
about the safety and well-being of fellow employees, the Board
has held that employees who raise concerns about a supervi-
sor’s competency engage in protected activity where it makes
their work more difficult or otherwise directly impacts their
working conditions. Senior Citizens Coordinating Council of
Riverbay, 330 NLRB 1100, 1103–1104 (2000); Atlantic-Pacific
Construction Co. v. NLRB, 52 F.3d 260, 263 (9th Cir. 1995);
Delta Health Center, 310 NLRB 26, 35 (1993).
Ahern did, however, use a false name, address, and tele-
phone number on the package that he sent Ogihara, and the
issue remains whether such conduct was so egregious as to
remove it from the protection of Section 7. Milk Wagon Driv-
ers Union v. Meadowmoor Diaries, Inc., 321 U.S. 287, 293
(1941); Caterpillar Tractor Co., 276 NLRB 1323, 1326 (1985).
OGIHARA AMERICA CORP. 123
The Board permits employees significant leeway to make false
statements while engaging in protective activity absent a show-
ing of “deliberate falsity or maliciousness.” Guardian Indus-
tries Corp., 319 NLRB 542, 549 (1995); Sprint/United/Man-
agement Co., 339 NLRB 1012, 1018 (2003). Here, there was
nothing false about the statements containing the essence of the
protective activity, that is, the allegations in the letter or the
photographs; only the vehicle by which the protected activity
was communicated contained false information in order to pro-
tect concerned employees. Nor did Ahern have a personal mo-
tive in using Pierson’s name.
First, Ahern, Simmons, and Griswold decided to send an
anonymous letter to Ogihara because they were legitimately
concerned about reprisals and the likelihood that the Respon-
dent would not respond effectively if he knew that Ahern sent
the letter. Ahern intended to send the letter anonymously.
However, that approach was stymied when the Kinko’s store
clerk informed him that he needed to list a name, address, and
telephone number on the return label. Ahern’s response by
listing Pierson, although less than virtuous and obviously ag-
gravating to Pierson, had the effect of keeping the letter
anonymous. Ahern insulated Pierson from responsibility for
sending the letter by handwriting it and listing a clearly incor-
rect home address and telephone number. This approach effec-
tively disconnected Pierson from the letter, since it would be
unreasonable to expect a person sending critical information to
his employer to complicate his situation by including a false
address and telephone number.
Second, Ahern was not motivated by a desire to have Pierson
fired, thus enabling Ahern to move from his second shift as-
signment into Pierson’s more desirable first-shift schedule.
Ahern already knew that another first-shift employee, Gary
Babbitt, was retiring in August and that he was in line to re-
place him.
Lastly, Ahern’s denial that he knew anything about the pack-
age did not cause him to lose the protection of the Act, as an
employee is under no obligation to respond to questions that
seek to uncover his protected activities. Exxon Mobil Corp.,
343 NLRB 287, 297 (2004); United Services Automobile Assn.,
340 NLRB 784 (2003); St. Louis Car Co., 108 NLRB 1523
(1954). In fact, an employer may not discharge an employee
for lying in response to such questions. Tradewaste Incinera-
tion, 336 NLRB 902 (2001); Frazier Industrial Co., 328 NLRB
717 (1999).
Under the circumstances, Ahern’s false information on the
return address label was not so “opprobrious, profane, defama-
tory, or malicious” as to lose the protection of the Act. Ameri-
can Hospital Assn., 230 NLRB 54, 56 (1977). Indeed, the
Board has countenanced similar conduct where an employee, in
good faith, forged other employees’ signatures on grievance
forms. OPW Fueling Components, 343 NLRB 1034, 1038
(2004); Roadmaster Co., 288 NLRB 1195, 1196 (1998).
The Respondent also contends that Ahern did not engage in
concerted protected activity because he failed to transmit his
concerns through the Respondent’s open door or blue press
procedure. Ahern, Simmons, and Griswold felt, however, that
both procedures were inappropriate mechanisms for the sub-
mission of their concerns. The open-door procedure provided
for employees to meet with their immediate supervisor, while
the blue press required that they place their concerns in a sug-
gestion box to be reviewed by a group of employees. They had
a good-faith belief that neither a meeting with their immediate
supervisor nor the submission of a complaint in a suggestion
box would accomplish their goal of having Gaffka demoted.
As such, they decided to express themselves directly to Ogi-
hara, the president of the Company. This channel was made
available in the “employment philosophy” section of the em-
ployee handbook, which indicated that employees were free to
approach anyone in management with their concerns at any
time. See GC Exhibit 4 at 11. In any event, the protections of
Section 7 do “not depend on the manner in which the employ-
ees choose to press the dispute, but rather on the matter that
they are protesting.” Tamara Foods, Inc., 258 NLRB 1307,
1308 (1981), enfd. 692 F.2d 1171 (8th Cir. 1982), cert. denied
461 U.S. 928 (1983), citing Plastilite Corp., 153 NLRB 180,
184 (1965), enfd. in pertinent part 375 F.2d 343 (8th Cir. 1967).
As such, concerted activity does not lose its protection where it
is expressed in a manner inconsistent with those prescribed by
management. American Hospital Assn., 230 NLRB 54, 56
(1977). Under the circumstances, Ahern’s discharge for send-
ing the package violated Section 8(a)(1) of the Act.
2. The 8(a)(3) charge
The complaint also alleges that Ahern’s discharge was the
result of discrimination by the Respondent and tended to dis-
courage membership in the Union. Under Wright Line, 251
NLRB 1083 (1980), the General Counsel has the initial burden
of establishing that union activity was a motivating factor in the
Respondent’s action alleged to constitute discrimination in
violation of Section 8(a)(3) of the Act. The elements required
to support such a prima facie violation of Section 8(a)(3) are
union activity, employer knowledge of the activity, adverse
action against the employee, and a connection between the
employer’s union activity and the adverse action. Once the
General Counsel has established a prima facie case, the burden
shifts to the Respondent to show it would have terminated
Ahern even in the absence of protected activity.
The Respondent did not refute the contention that it had prior
knowledge of Ahern’s union activities. Ahern wore union
paraphernalia to work, handed out union propaganda during the
organizing campaign, represented the union as an observer at
the representation election, and testified on behalf of the Union
at the subsequent hearing relating to the Union’s objections and
related unfair labor practice charges. The Respondent denies,
however, that Ahern’s discharge for sending the letter to Ogi-
hara is in any way connected to his union activity.
Improper employer motivation is frequently established by
circumstantial evidence and may be inferred from several fac-
tors, including: the Respondent’s known hostility toward un-
ionization coupled with knowledge of an employee’s union
activities; pretextual and shifting reasons given for the em-
ployee’s discharge; the timing between an employee’s union
activities and the discharge; and the failure to adequately inves-
tigate alleged misconduct. Temp Masters, Inc., 344 NLRB
1188, 1193 (2005); Promedica Health Systems, Inc., 343
NLRB 1351, 1361 (2004). All of these factors are present.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD124
In addressing the Respondent’s hostility toward unionization,
I did not rely on Daniels’ testimony that Poe referred to Ahern
as “angry Andy” or stuck out his tongue at him. Such behavior
could be attributable to a personality conflict as much as the
union controversy. Nevertheless, there is overwhelming evi-
dence of motivation. The Respondent’s hostility toward un-
ionization was memorialized in its employee handbook and
articulated at mandatory employee group meetings during the
Union’s organizing campaign in the fall of 2003. On July 12,
Judge Carson found that the Respondent interfered with the
lawful distribution of union literature by employees in non-
working areas and illegally disciplined employee Mikulka for
engaging in such activity. Seventeen days later, Casady ap-
proached Ahern as he conversed with coworkers and made an
unusual comment inquiring about Ahern’s recent whereabouts.
The next day, Ahern’s supervisor, Killips, asked what he had
been discussing with the other employees when Casady ap-
proached him the day before. Finally, after his discharge,
Ahern telephoned Casady and left a message invoking his right
to a review by the Respondent’s disciplinary committee.
Casady admitted receiving the request, but ignored it. Casady’s
excuse, that the request was not made in writing, was baseless,
as there is no such requirement.
The Respondent’s motivation is also revealed by the fact that
the allegations in the package were not meaningfully investi-
gated and that, from the very outset, Casady’s sole focus was in
finding out who sent the package. Casady testified that he re-
lied on Ruhman to conduct an investigation, but Ruhman relied
on Gaffka to investigate himself. Gaffka, however, did not
investigate the allegations; in fact, he did not provide anyone
with an analysis of the conditions depicted in the photographs
until after Ahern was discharged. He was shown the photo-
graphs shortly after Casady met with Pierson and, at that time,
Gaffka confirmed that he was responsible for some, but not all,
of the conditions depicted in the photographs. Based on the
credible evidence, it is clear that he conveyed Gaffka’s senti-
ments that the photographs were accurate representations of the
objects depicted and either warranted corrective work or were
already under review.
Coming in the midst of a hotly contested union campaign,
Casady’s obsession with the sender of the package leads to the
inescapable conclusion that he suspected that the authors of the
package may have been union supporters. His constantly shift-
ing testimony revealed that he did not need to speak with the
sender of the package in order to investigate the allegations.
He determined prior to meeting with Pierson that the letter was
not in his handwriting and the address and telephone number
listed on the return label were not his. Nevertheless, Casady
still met with Pierson for 20–30 minutes attempting to find out
if Pierson had any idea as to who sent the package. That ap-
proach did not reveal any leads, so Casady undertook the ex-
treme measure of initiating a lawsuit and obtaining a subpoena
for the production of surveillance videotape revealing the
sender’s identity. Contradicting Casady once again, Gaffka
testified that Casady obtained his consent to participate in such
a lawsuit by telling him that the Respondent was “doing an
investigation into the whole package.”
After obtaining the videotape and determining that Ahern
sent the package, Casady terminated Ahern based on alleged
violations of handbook rules 19, 21, and 31, indicating that the
rule 31 violation was the most severe. The discharge was is-
sued less than a month after the Board found that the Respon-
dent had committed unfair labor practices during the election
campaign and authorized another election. None of these rules,
however, applied to Ahern’s conduct. Ahern did not falsify
company records or forms or provide false testimony at a peer
review hearing (rule 19), did not display immoral conduct or
harass another employee (rule 21), and did not post materials or
graffiti with racial, sexist, or religious symbols, “or threatening
commentary which do not reflect Ogihara Core Values and may
be intimidating to other Associates.” (Rule 31). To the con-
trary, the package was sent privately and contained fair and
accurate depictions of conditions and equipment in need of
corrective action, and requested confidentiality. It was the
Respondent’s decision to essentially ignore the allegations in
the letter and the request that it be investigated in a confidential
manner.
In addition, Ahern did not have a prior disciplinary history
with the Respondent. The record in the prior hearing before
Judge Carson reveals that the discriminatee in that proceeding
received a mere written reprimand for an alleged rule 31 viola-
tion. Based on the foregoing, I find that the Respondent’s shift-
ing and pretextual reasons for tracking down the person who
sent the package, the relative severity of the sanction applied,
the timing of the discharge shortly after the Union succeeded in
overturning the election results, and the spurious grounds relied
upon by the Respondent, all demonstrate that Ahern’s discharge
was motivated by his active support for the Union.56
Since the General Counsel established a prima facie case, the
burden of persuasion shifted to the Respondent to prove, by a
preponderance of the evidence, that it would have discharged
Ahern even in the absence of his union activity. Senior Citi-
zens Coordinating Council of Riverbay Community Inc., 330
NLRB 1100, 1105–1106 (2000); Monroe Mfg., 323 NLRB 24,
27 (1997). In order to meet this burden, the Respondent was
required to do more than show that it had a legitimate reason
for its actions. Black’s Railroad Transit Service, 342 NLRB
549, 557 (2004); Hicks Oil & Hicksgas, Inc., 293 NLRB 84, 85
(1989), enfd. 942 F.2d 1140 (7th Cir. 1991). The Respondent
did not make such a showing. As previously explained, the
Respondent did not have legitimate grounds for disciplining
Ahern. Casady conceded that the mere sending of the package
did not violate any of the Respondent’s rules and that the alle-
gations could have been investigated without uncovering the
sender of the package. Furthermore, none of the rules cited in
the discharge notice applied to Ahern’s conduct, which con-
sisted of sending a package containing meritorious allegations
regarding Gaffka’s work. In addition, the only proof in the

56 I do not find, however, that the Respondent’s continued investiga-
tion of Ahern after his discharge “is evidence that he was discharged
for his union and protected concerted activity.” GC Br. at 51. By then,
the parties were in a litigation posture and the Respondent’s actions in
further investigating Ahern and submitting such information to the
Michigan unemployment compensation office could simply have been
defensive in nature.
OGIHARA AMERICA CORP. 125
record of a rule 31 violation by another employee reveals that
the Respondent responded in that instance with a written repri-
mand. Under the circumstances, I find that the Respondent
violated Section 8(a)(3) and (1) of the Act.
3. The 8(a)(4) charge
The complaint further alleges that the Respondent unlawfully
discharged Ahern because he testified at the representation
hearing in Case 7–RC–22589. The Respondent does not deny
“anti-union history and general bias,” but denies any connec-
tion between Ahern’s discharge and his testimony in the prior
proceeding. The Respondent relies on several facts: Ahern was
not disciplined previously; other union supporters were not
disciplined at all; and his discharge came nearly 3 months after
he testified at the prior proceeding.57
Section 8(a)(4) makes it unlawful to discharge or otherwise
discriminate against an employee because he filed charges or
gave testimony at a Board proceeding. A Wright Line analysis
is also applicable in Section 8(a)(4) cases. Black’s Railroad
Transit Service, supra, slip op. at 6. Here, there is no issue that
the Respondent was hostile to unionization and was aware of
Ahern’s activities in that regard. As previously discussed,
Ahern testified at the prior unfair labor practice and representa-
tion hearing before Judge Carson in May. On July 12, the
Board upheld Judge Carson’s decision finding the Respondent
in violation of Section 8(a)(3) and (1), upheld the Union’s ob-
jections to the representation election results, and authorized
the Regional Director to conduct a new election at the appro-
priate time.
In addition to the overwhelming evidence that the Respon-
dent was hostile to the Union, the timing of Ahern’s discharge
was suspicious. La Gloria Oil, 337 NLRB 1120, 1124 (2002);
Pepsi Cola Bottling Co., 301 NLRB 1008, 1053 (1991). Ahern
was discharged less than 1 month after the Board issued its
Order authorizing another election. This event, rather than
Ahern’s May 25 hearing, was the appropriate timeframe, since
the Respondent excepted to that decision after it issued in July.
Upon learning of Judge Carson’s decision, the Respondent had
reason to expect there would be another election. It also had to
reasonably expect that Ahern would, once again, provide criti-
cal support to the Union. That reality, coupled with the pretex-
tual and shifting reasons given for Casady’s investigation of the
package, provides compelling evidence of a connection be-
tween Ahern’s previous Board testimony and his discharge.
Furthermore, for the reasons discussed above in connection
with the 8(a)(3) violation, the Respondent failed to sustain its
burden of showing it would have discharged Ahern anyway.
Under the circumstances, I find that the Respondent violated
Section 8(a)(4) and (1) of the Act.
B. The Respondent’s Interrogation of Employees
The General Counsel alleges that the Respondent violated
Section 8(a)(1) when Casady coercively interrogated Pierson
about the package in June, and again on August 3 when Ahern
was called to Casady’s office. The Respondent denies the alle-
gations. The Respondent asserts that Casady’s statements to

57 R. Br. at 24–25.
Pierson focused on the allegations against Gaffka, while his
meeting with Ahern consisted of a simple inquiry as to whether
Ahern sent the package, followed by Ahern’s termination.
In evaluating the propriety of Casady’s conduct, the test is
whether his interrogation reasonably tended to interfere with,
threaten, or coerce Pierson and Ahern in the exercise of their
Section 7 rights. See Alliance Steel Products, 340 NLRB 495
(2003). Whether an interrogation is unlawful is determined by
the totality of the circumstances. Rossmore House, 269 NLRB
1176, 1177 (1984).
1. Casady’s statements to Pierson on June 11
Casady met with Pierson alone in his office less than 1
month after Judge Carson conducted a hearing into the Respon-
dent’s alleged unfair practices during the organizing campaign.
During the meeting, which lasted 20–30 minutes, Casady
placed the letter and photographs on his desk and asked Pierson
whether he had ever seen them before. When Pierson denied
prior knowledge of the package, Casady asked whether he
might have any enemies who might have sent it using his name.
Pierson had no idea. In addition, based on Pierson’s credible
testimony, Casady did not mention anything about investigating
the allegations against Gaffka.
In analyzing this alleged violation, the General Counsel con-
tends that Casady already knew that Pierson did not send the
package, could have investigated the allegations without speak-
ing with Pierson and, in fact, did not conduct a meaningful
investigation of the allegations against Gaffka. These consid-
erations are irrelevant, however, in applying the appropriate
standard. The standard is not Casady’s motive or what he
knew. In determining whether Casady’s statements were coer-
cive, the standard is an objective one. Krystal Enterprises, 345
NLRB 227, 253 (2005); Meijer Inc., 344 NLRB 916, 917
(2004); MDI Commercial Services, 325 NLRB 53, 63–64
(1994).
Casady met with Pierson in the midst of Board litigation re-
lating to the Respondent’s strong opposition toward unioniza-
tion. Casady confronted Pierson about the package and its
contents. During the course of the 20–30 minute meeting that
ensued, Pierson obviously had occasion to see what the photo-
graphs conveyed. They conveyed the alleged concerns of other
employees about the work performance of a supervisor; they
also included a request for confidentiality. Casady’s state-
ments, absent an assurance that the Respondent was concerned
about the allegations and was looking into them, further con-
veyed to Pierson that the Respondent was only interested in
finding out who sent the package. Given the fact that the letter
and photographs discussed concerted activity, the obvious mes-
sage to Pierson was that the Respondent was hostile to employ-
ees’ criticism of supervisors. Applying an objective standard, I
find that Casady’s interrogation of Pierson was coercive in
nature and violated Section 8(a)(1).
2. Casady’s statements to Ahern on August 3
Casady’s August 3 meeting with Ahern was briefer, but
lasted long enough for Casady to show Ahern the package.
Rather than explain to Ahern that the “confidential” letter and
photographs had been investigated, the Respondent simply
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD126
dealt with the issue of whether he sent the package. Ahern de-
nied any knowledge about it. Casady responded by telling
Ahern that surveillance videotape revealed that Ahern sent the
package. Ahern did not respond. Shortly thereafter, without
any discussion regarding the allegations in the letter and photo-
graphs, Casady told Ahern that he was terminated for his “de-
ception” in sending the letter. As in the meeting with Pierson,
Casady’s statements to Ahern conveyed the message that the
Respondent was hostile to the criticism of a supervisor. Under
the totality of the circumstances, I find that the Respondent
violated Section 8(a)(1).
C. The Respondent’s Threat
The complaint also alleges that Casady, on August 4, threat-
ened employees that the Respondent would seek a larger dam-
age award in the lawsuit against Ahern if it determined that the
Union was involved in sending the package. The Respondent
denies the allegation and contends that it was an employee, not
Casady, who asked whether the unnamed plaintiffs in the state
lawsuit would increase their request for damages to $25 million
in such an instance.
An employer violates Section 8(a)(1) when it threatens to in-
stitute legal action because an employee engaged in protected
concerted activity. See Anheuser-Busch, Inc., 337 NLRB 3, 23
(2001); Braun Electric Co., 324 NLRB 1 (1997); Holy Cross
Hospital, 319 NLRB 1361, 1366 (1995); Carborundum Co.,
286 NLRB 1321, 1322 (1987). Casady made his remarks re-
garding the potential for an increased damage award in the
context of a pending lawsuit against an employee—Ahern. At
the time Casady made such statements, the unfair labor practice
charges had been posted and employees knew of Ahern’s claim
that he had been discharged for engaging in protected activity.
Casady did not qualify his statement regarding that lawsuit to
exempt Ahern from such additional monetary exposure. The
Union was not a defendant, and there was no indication that it
would become a defendant. Legal considerations and theories
of liability for joint tortfeasors aside, a reasonable understand-
ing by employees hearing Casady’s remarks would be that
Ahern could be liable for up to $25 million for engaging in
concerted protected activity. It was also evident to employees
that the Respondent was involved in the retaliatory lawsuit, as
Casady initiated the discussion and conveyed personal knowl-
edge concerning the future intentions of the unnamed plaintiffs.
My recent decision in Richard Lawson Excavating, Inc., JD-
8-05, issued February 14, 2005, cited by the Respondent, is
distinguishable. The 8(a)(1) charge in that proceeding involved
a threat by the employer to file criminal charges against the
union and union employees because they allegedly videotaped
the employer’s supervisor in violation of a Federal wiretapping
statute. The threat was retaliation for the union’s filing of un-
fair labor charges. There was no 8(a)(1) violation, however,
because the threat was clearly aimed at the union for conduct
unrelated to any protected concerted activity on the part of
employees. As such, it was “pure speculation” that union offi-
cials would have to respond to such a lawsuit by choosing a
course of action detrimental to employees’ Section 7 rights.
Under the circumstances, I find that Casady’s statement was
objectively calculated to restrain employees in the exercise of
their Section 7 rights and, therefore, violated Section 8(a)(1).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Leo Andre Ahern because he engaged in
concerted protected activity by sending a letter and photographs
critical of a supervisor’s work performance, the Respondent
violated Section 8(a)(1) of the Act.
4. By discharging Ahern due to his support for the Union,
the Respondent violated Section 8(a)(3).
5. By discharging Ahern because he testified at a representa-
tion hearing before the Board the Respondent violated Section
8(a)(4).
6. By interrogating Bruce Pierson as to who sent a letter and
photographs critical of a supervisor’s work performance, with-
out discussing the merits of the allegations, the Respondent
restrained the exercise of employees’ Section 7 rights in viola-
tion of Section 8(a)(1).
7. By interrogating Ahern as to whether he sent a letter and
photographs critical of a supervisor’s work performance, with-
out discussing the merits of the allegations, and then discharg-
ing him, the Respondent restrained the exercise of employees’
Section 7 rights in violation of Section 8(a)(1).
8. By telling employees that certain unnamed persons would
seek additional monetary damages against Ahern for sending
the letter and photographs critical of a supervisor’s work per-
formance, if it were determined that the Union was involved in
sending them, the Respondent restrained the exercise of em-
ployees’ Section 7 rights in violation of Section 8(a)(1).
9. By engaging in the conduct described above, the Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(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 an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]