OHI America

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 447 (N.L.R.B. 1993)

447
313 NLRB No. 59
OHI AMERICA, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 judge’s findings.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). We also affirm the judge’s findings that
disciplinary warnings issued to Lewis on March 6, 1992, and to
Vanesca McDaniel on January 22, 1992, violated Sec. 8(a)(3) and
(1). Although the judge did not explicitly cite to or rely on Wright
Line in finding these warnings unlawful, the analytical framework
that he used in considering these warnings fully comports with the
Wright Line standard.
3 We affirm the judge’s findings that the Respondent violated Sec.
8(a)(1) by threatening Lewis with the loss of promotions and un-
specified reprisals because of her support of the Union.
4 See Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989). (‘‘Under
Wright Line, an employer cannot carry its burden of persuasion by
merely showing that it had a legitimate reason for imposing dis-
cipline against an employee, but must show by a preponderance of
the evidence that the action would have taken place even without the
protected conduct.’’)
OHI America, Inc. and Kimberly Lewis and
Vanesca R. McDaniel. Cases 9–CA–29275–2, 9–
CA–29275–1, and 9–CA–29445
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 30, 1993, Administrative Law Judge Rob-
ert T. Wallace issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions and to adopt the rec-
ommended Order.
We agree with the judge’s finding that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by
issuing a written disciplinary warning to employee
Kimberly Lewis on January 20, 1992. The judge, how-
ever, failed to analyze the issuance of this warning ex-
pressly under the Board’s Wright Line standard.2
The January 20 warning cited Lewis for both unau-
thorized posting of a notice concerning a union meet-
ing and ‘‘insubordinate behavior.’’ The judge found
that Lewis had engaged in misconduct by posting the
notice on the wall of the employee breakroom because
she had breached the Respondent’s rule requiring em-
ployees to obtain prior permission of the personnel
manager before posting notices on the Respondent’s
premises. The judge, however, found that the Respond-
ent’s inclusion of ‘‘insubordination’’ in the warning
‘‘was prompted by animus toward Lewis for her union
activities and tainted the entire warning.’’
Under the Wright Line test, to prove a violation of
the Act turning on employer motivation, the General
Counsel must establish a prima facie case that animus
against union activity or other protected conduct was
at least a motivating factor in the action in question.
The employer may escape liability for its action either
by rebutting the prima facie case—i.e., disproving one
or more of the critical elements of that case—or by es-
tablishing as an affirmative defense that it would have
taken the same action even in the absence of the em-
ployee’s protected conduct.
The facts set forth in the judge’s decision clearly es-
tablish that the General Counsel made a showing suffi-
cient to support the inference that protected conduct
was a motivating factor in the Respondent’s issuance
of the January 20 warning to Lewis. In this regard, the
record demonstrates that Lewis was an outspoken lead-
er of the Union’s organizing effort among the Re-
spondent’s employees, and that the Respondent har-
bored animus against Lewis because of that activity.3
Further, the January 20 written warning occurred dur-
ing a period when Lewis was particularly active on be-
half of the Union. Until Lewis contacted the Union
and began her organizing activity, she was considered
by the Respondent to be an exemplary employee, as
was reflected in the evaluation that she received in Oc-
tober 1991. There is no evidence that Lewis had been
subject to any discipline before the January 20 warn-
ing.
The judge found, and we agree, that the evidence is
insufficient to support the Respondent’s contention that
Lewis had been insubordinate approximately 2 weeks
before the January 20 warning. Thus, we are left with
Lewis’ unauthorized posting of the notice regarding
the union meeting as the only misconduct that might
have warranted issuance of the warning. Based on the
record, however, we find that the Respondent failed to
establish that it would have issued the January 20 writ-
ten warning to Lewis even in the absence of her union
activities. The Respondent made no showing that any
other employee had been disciplined for posting mate-
rial on the wall of the breakroom, or anywhere else on
the Respondent’s property. In these circumstances, we
conclude that the Respondent has not met its burden
under Wright Line of demonstrating that it would have
given this warning to Lewis even if she were not an
open and outspoken union supporter.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, OHI America, Inc., Frank-
fort, Kentucky, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992 unless otherwise indicated.
2 Osbourne did not refer to the meeting in her testimony. And she
did not claim any knowledge of improper conduct of Lewis.
James E. Horner, Esq., for the General Counsel.
James U. Smith III and Andrew J. Russell, Esqs., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. The
original charges were filed January 28, 1992,1 and a com-
plaint issued March 13. The charge in Case 9–CA–29445
was filed March 25. The cases were the subject of a consoli-
dated complaint issued May 8, and they were heard together
on June 24 in Frankfort, Kentucky. At issue is whether Re-
spondent threatened and disciplined employees Lewis and
McDaniel in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT/ANALYSIS
I. JURISDICTION
The Respondent, a corporation, makes automobile parts at
its facility in Frankfort, where it annually ships goods valued
in excess of $50,000 directly to points outside the Common-
wealth of Kentucky. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the United
Automobile Workers of America is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Kimberly Lewis
Lewis was hired in October 1990, and she received her
first evaluation about 1 year later. Therein, she received high
ratings in nearly all categories, including work quality and
quantity. The rater was her immediate supervisor (Elaine
Osbourne) who, in handwritten notes, praised her for, among
other things, ‘‘working well with others,’’ ‘‘using time wise-
ly,’’ and being a ‘‘very good team-mate.’’ Both the produc-
tion manager (Phillip Roseberry) and personnel manager
(James Jones) subscribed to that evaluation.
While on break in the breakroom on Friday, January 3,
with about 15 to 20 employees present, Lewis expressed dis-
satisfaction with working conditions and opined that things
would be different if employees were represented by a union.
Within the hour, three employees (Nagle, Hood, and Baader)
approached Osbourne and told her what Lewis had said.
Osbourne promptly called Lewis to the office (something
that had never happened before) and told her a lot of pro-
motions would be opening up soon and that talking about un-
ionism could hurt her in that regard. When Lewis was non-
committal, Osbourne asked whether she was aware of her
rights under company policies. Lewis replied, ‘‘Yes’’ and the
interview ended.
Although Osbourne, an admitted supervisor, claims only to
have asked Lewis if she was aware of the rules regarding so-
licitation, I find more probable, and credit, Lewis’ account.
I find the incident intimidating and unlawful, as alleged.
On the following Monday, Lewis called the local office of
the United Automobile Workers and inquired about unioniza-
tion. A UAW representative returned her call on Wednesday
morning and told her he’d talk with employees at a meeting
on January 11 and, in the afternoon about an hour before her
shift began, Lewis distributed fliers announcing the meeting
in the Company’s parking lot. Later that day she was again
called into the office where she met with Manager Roseberry
and Osbourne. Roseberry told her that he had received sev-
eral complaints that she was talking about the Union ‘‘on the
floor,’’ i.e., during working time. When Lewis denied having
done so, Roseberry told her that he knew what activities took
place and advised her to consider herself as having been
warned.
Roseberry did not testify, and there is no direct testimony
that Lewis acted improperly.2 I credit her denial and find that
the incident entailed wrongful intimidation by threat of un-
specified reprisals, as alleged.
On January 9 signs were posted at the employees’ parking
lot gates bearing the legend, ‘‘Notice, Private Property, No
Soliciting’’ and, on the following day, employees received
with their paychecks a letter wherein the president of the
Company (Tom Lingerman) expressed firm opposition to
unionization.
Lewis continued to attend union meetings, distributed
union cards and fliers in the lots and breakroom, and became
a member of the union organizing committee.
At about 8:30 p.m. on January 20, Lewis affixed a 2-by-
1-1/2 foot poster on a blank wall in the breakroom with two
thumbtacks. The poster read as follows:
UNION MEETING !!
Tuesday January 21st
1:00 o’clock at
BEST WESTERN
Don’t let anyone lie, threaten or
try to scare you about going to a
meeting. You have the right
to hear your rights and fight for them.
On the opposite wall were a number of company postings,
including notices concerning ‘‘Equal Employment Oppor-
tunity, Wage and Hours, and Safety.’’ The applicable com-
pany rule provides that notices are not to be posted or re-
moved without written permission of the personnel manager
(James Jones). Lewis had not sought permission.
At 9 p.m., Supervisor Osbourne called Jones at his home
and told him about the posting. Immediately thereafter he re-
turned to the plant where he participated in preparing a writ-
ten warning to Lewis relative to the unauthorized posting. He
also included in the warning a citation for ‘‘insubordinate be-
havior.’’ At 10 p.m., after having Roseberry and Osbourne
sign the warning, he called Lewis to his office where, with
Osbourne present, he served it. Although admitting posting
the sign, Lewis vigorously denied having been insubordinate
and pressed him for details. Jones said he had been told
she’d failed to follow her team leader’s orders but declined
449OHI AMERICA, INC.
3 Jones produced a note dated January 8, purportedly in Lewis’
personnel file on January 20, in which Baader and Osbourne cited
Lewis for shrugging her shoulders and continuing to leave the work
area on that day at 11:50 p.m. (10 minutes before the end of her
shift) after an unnamed person asked her to restock. Neither Baader
nor Osbourne testified about the matter. The note, even assuming it
was in Lewis’ personnel file on January 20, provides an insufficient
basis for concluding that a significant breach of discipline occurred.
4 Jones claims he told Lewis that Spencer was one of the com-
plainants when he disciplined her on March 6.
5 Spencer recalls that Lewis once asked him to attend a union
meeting and that he declined. There is no reason to suppose that the
latter exchange took place during worktime or even at the plant.
6 The flavor of Jones’ interview with Lewis is captured in the fol-
lowing exchange between Respondent’s counsel (RC) and Spencer
(SP):
RC: The company was concerned about the problems you had
expressed about your own job, isn’t that correct?
SP: With the machine breaking down and trouble we were
having.
RC: And Jones asked you specifically about other problems
you were having on the job?
SP: He directed the attention towards Kim [Lewis].
RC: He expressed concern to you about your ability to per-
form your job free of harassment, or free of being bothered by
other employees about things about which you chose not to be
bothered; isn’t that correct?
SP: And I told him that she was not bothering me and she
did her work. And that’s where [Jones’ account of my] . . .
statement has been turned, and that’s why I’m down here. It’s
wrong. It’s wrong.
7 The first typed comment (not chosen) read as follows: ‘‘Arouses
resentment of co-workers. Ineffective when working with others;
fails to use tact and diplomacy. Unable to work effectively under su-
pervision. Tests or questions work rules.’’
8 Sometime during the day, Burgin put a note in McDaniel’s per-
sonnel file stating that an hourly employee (unidentified) had com-
plained to her about being stopped and bothered by McDaniel while
he was getting parts, and in a separate note (also dated January 22)
Burgin recorded what she had told McDaniel at 9 a.m. Also in
Continued
to provide any other information. Promptly on leaving the of-
fice, Lewis went to her team leader (Denise Baader) and
asked when she’d failed to follow instructions. Baader re-
plied, ‘‘Never.’’3
I find that Lewis engaged in misconduct by posting the
sign on the wall. There is no evidence that the Company al-
lowed employee-generated notices to be posted in that man-
ner. Indeed, a witness for the General Counsel testified that
he’d never heard of any employee doing so. The fact that
employees on occasion were allowed to post items such as
‘‘thank you’’ notes on bulletin boards is without significance
because Lewis’ posting was on a wall and, in any event,
there is no showing that postings were allowed without prior
permission.
Jones, however, did not choose to ground the warning
solely on that transgression. Instead, he included ‘‘insubor-
dination’’ as a further reason for the discipline. Because he
gave Lewis no details and provided no reason on this record
as to why he waited nearly 2 weeks to mention the matter,
I find the inclusion was prompted by animus toward Lewis
for her union activities and tainted the entire warning.
Lewis states that during the disciplinary interview on Janu-
ary 20, Jones also mentioned the ‘‘Private Property, No So-
liciting’’ signs which had be installed at entrances to em-
ployee parking lots on January 9. In itself the notice is per-
missible because an employer is free to bar unauthorized per-
sons (strangers) from its property at any time, and that right
exists even when the posting is in response to a union orga-
nizational drive. Lewis, however, claims that at the interview
Jones asked if she had seen the signs and then told her she
could be terminated for distributing fliers in the lots. For his
part, Jones says he simply told Lewis the Company preferred
that she didn’t distribute there because of a litter problem.
Thereafter, Lewis continued regularly to distribute in the lots
prior to commencement of her shift and was never warned
or punished for doing so. In this instance, I view Lewis’
claim as improbable and credit Jones. Accordingly, I find no
violation of her right as an employee to distribute union ma-
terials in the parking lots while off duty. Paragraph 6 of the
complaint will be dismissed.
On March 6 Jones again called Lewis to his office. There,
he handed her another written warning for ‘‘interferring [sic]
with the work of others.’’ The warning does not state when
the alleged offense occurred, and Jones declined to provide
any information including names of the several employees
who allegedly complained.
At trial, Jones reiterated the claim that a number of em-
ployees had complained but identified only one, John Spen-
cer.4 He also testified that Spencer, on March 2, told him
Lewis had repeatedly interrupted him at work by talking
about and urging him to support the Union. Spencer, how-
ever, denied that Lewis had bothered him on the job5 and
that he had complained to Jones that she had done so.6 I
credit both Lewis and Spencer and find that issuance of the
second warning represents another example of Lewis’ being
unlawfully harassed for her activities on behalf of the Union.
B. Vanesca McDaniel
McDaniel was hired in June 1990 and, like Lewis, she re-
ceived high praise for the quality and quantity of her work
when she received her first evaluation in mid-November by
her then supervisor, Donald Polly. His only negative entry
was under the category ‘‘ABILITY TO WORK WITH OTHERS’’
where he placed a check next to the typed comment (the sec-
ond of five): ‘‘Does not promote teamwork. Poor use of tact
and diplomacy. Strained relationship with T/L [team leader
Patsy Burgin, a nonsupervisor].’’7 However, in a handwritten
comment, he added: ‘‘Situation has improved since move to
. . . [another team]. Keep it up!!’’ At an other part of the
evaluation, Polly indicated that McDaniel had helped in
training new employees. Managers Roseberry and Jones each
signed the evaluation.
On January 11, McDaniel attended the first union meeting,
signed an authorization card, and became a member of the
organizing committee. Thereafter, she regularly distributed
union literature in the parking lots and in the breakroom and,
on occasion, when other employees came to her work station
inquiring about the Union, she answered their questions.
Around 9 a.m. on January 22, McDaniel’s newly ap-
pointed supervisor (group leader Burgin) told her that several
supervisors and hourly workers complained that while on
break she had been bothering ‘‘other people’’ who were
working. Burgin did not say when the complaints were re-
ceived, who had complained, and why they felt bothered.8
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McDaniel’s file were notes dated December 4 and 10, 1991, in
which Burgin states that another hourly worker complained about
being told how to do her job by McDaniel. There is no indication
that McDaniel had ever been advised of the existence of those docu-
ments or that she had been disciplined or even counseled about the
matters recorded in December.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Unaware that discipline was contemplated, and not wishing
to argue, McDaniel replied, ‘‘Okay’’ and continued to work.
I do not view that comment as an admission of wrongdoing.
Like other employees, McDaniel often engaged in chit-chat
on the floor about sports and personal matters and, at best,
the ‘‘ Okay’’ meant she accepted the possibility that some-
time she may inadvertently have caused offense to someone.
Later that day McDaniel was told to go to the office.
There, with Burgin present, Production Manager Roseberry
repeated Burgin’s claim that several supervisors and employ-
ees had complained of being bothered, and handed her a
written warning for ‘‘Disrupting the work of others, [and]
creating an undesirable work environment.’’ In response to
McDaniel’s inquiry as to who had complained, Roseberry
told her he was not free to divulge names but that people
with whom she currently worked on the line had complained.
Asked ‘‘How many?,’’ he replied, ‘‘Numerous.’’ Pressed
again as to whether it was 2, 10, or 12, he answered, ‘‘More
than one.’’ And as to what had bothered others, Roseberry
declined to be specific. Instead he told her she had been
‘‘talking about things that were making people uncomfort-
able.’’
Here too, I am not persuaded that the warning was issued
for reasons other than to punish an employee for actively
supporting unionization and to deter continuance of such ac-
tivity. Respondent made no attempt to show that Daniel pro-
moted the Union during working time. Instead, it claims she
had a problem working with others and ‘‘bothered’’ them.
However, the record is devoid of credible evidence as to
when, who, and how she did so.
CONCLUSION OF LAW
Respondent violated the Act in the particulars and for the
reasons stated above, and it is not shown to have done so
in any other respect. Those unfair labor practices and each
of them have affected, are affecting, and unless permanently
restrained and enjoined will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, OHI America, Inc., Frankfort, Kentucky,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening loss of promotions and unspecified repris-
als for supporting the United Automobile Workers of Amer-
ica or any other union.
(b) Issuing disciplinary warnings to inhibit, deter, or pre-
vent employee support for the United Automobile Workers
of America or any other union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove from its files any reference to the unlawful
warnings given to Kimberly Lewis on January 20 and March
6, 1992, and to Vanesca McDaniel on January 22, 1992, and
notify them in writing that this has been done and that the
warnings will not be used against them in any way.
(b) Post at its facility in Frankfort, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with loss of promotions and
unspecified reprisals for supporting the United Automobile
Workers of America or any other union.
451OHI AMERICA, INC.
WE WILL NOT give you disciplinary warnings to inhibit,
deter, or prevent you from supporting the United Automobile
Workers of America or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL remove from our files any reference to the un-
lawful warnings we gave to Kimberly Lewis on January 20
and March 6, 1992, and to Vanesca McDaniel on January 22,
1992, and notify them in writing that this has been done and
that the warnings will not be used against them in any way.
OHI AMERICA, INC.