OPW Fueling Components

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1034 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 111
1034
OPW Fueling Components and Logan Cox. Case 9–
CA–40071
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 10, 2004, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
filed an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, OPW
Fueling Components, Butler County, Ohio, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(c) and reletter
the subsequent paragraph accordingly.
“(c) Suspending, discharging, or otherwise discrimi-
nating against any employees for filing charges with the
Board.”
2. Insert the following as paragraph 2(f).
“(f) 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.”

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge found that a “part” of the reason for the discharge of
Cox was Cox’s filing of a Board charge. We agree. We also conclude
that the Respondent has not shown that there were lawful reasons
which, by themselves, would have caused the discharge. See Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
3 We shall modify the judge’s recommended Order to conform to the
violations found and to the Board’s standard remedial language. We
shall also substitute a new notice in conformity with the Order as modi-
fied.
3. Substitute the attached notice for that of the admin-
istrative law judge.
MEMBER SCHAUMBER, dissenting in part.
I join my colleagues in finding that Respondent dis-
charged Cox in violation of Section 8(a)(3). It is undis-
puted that Cox signed the employees’ names on the un-
ion grievance without their permission. However, in the
specific context of this case, Cox’s conduct was not so
egregious as to lose the protection of the Act. Given
Cox’s protected activity and the Respondent’s admission
that it was the sole reason for Cox’s discharge, I find it
unnecessary to engage in a Wright Line analysis and do
not rely on the judge’s discussion of Wright Line or the
Respondent’s motives.
Because Cox’s discharge violated Section 8(a)(3), I
find it unnecessary to pass on the judge’s finding that
Respondent also violated Section 8(a)(4) by discharging
Cox in part due to his filing of a Board charge.
Contrary to my colleagues, I do not adopt the judge’s
finding that Respondent violated Section 8(a)(1) by the
alleged threatening statement of its vice president of op-
erations at the January meeting. Four witnesses denied
that the statement was made, while only one testified to
the contrary, and the General Counsel failed to call any
of the other three union committeemen who were present
at the meeting. In addition, the judge did not explain
why union committeemen Larry Perkins’s testimony was
discredited. In light of these circumstances, I would not
defer to the judge’s credibility determinations, which
simply referenced reliance on demeanor, without expla-
nation of what in the witnesses’ demeanor caused him to
credit one witness over the other. I would dismiss or
remand the issue for reconsideration and issuance of a
supplemental decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
OPW FUELING COMPONENTS 1035
WE WILL NOT threaten any of you that if you continue
to file charges with the National Labor Relations Board,
we will not bring work back into the plant.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you because you engage in un-
ion or other protected concerted activity.
WE WILL NOT suspend, discharge, or otherwise dis-
criminate against any of you for filing charges with the
Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Logan Cox full reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Logan Cox whole for any loss of earn-
ings and other benefits resulting from his suspension and
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discharge of Logan Cox, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discharge
will not be used against him in any way.
OPW FUELING COMPONENTS
Eric Oliver, Esq., for the General Counsel.
Michael W. Hawkins, Colleen P. Lewis, and Tina M. Walton,
Esqs. (Dinsmore & Shohl LLP), of Cincinnati, Ohio, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Cincinnati, Ohio, September 9, 2003. The charge was
filed March 12, and amended on May 29, and the complaint
was issued May 30, 2003. The complaint alleges that OPW
Fueling Components (the Respondent or OPW-FC) violated
Section 8(a)(1) of the National Labor Relations Act by threat-
ening employees that if the employees continued filing charges
with the National Labor Relations Board (the Board), it would
not bring work back into the plant. The complaint also alleges
that the Respondent violated Section 8(a)(1), (3), and (4) when
it discharged employee Logan Cox (the Charging Party) for
engaging in concerted protected activities and/or filing a Board
charge against the Respondent. The complaint was amended at
the start of the hearing to correctly allege the year of discharge
as 2002. The Respondent denies the alleged violations.
On the entire record, including my observation of the de-
meanor of the witnesses, and where demeanor is not determina-
tive, on the weight of the respective evidence, established or
admitted facts, inherent probabilities, reasonable inferences
drawn from the record as a whole, and after considering the
briefs filed by the counsel for the General Counsel and the Re-
spondent I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and place of
business in Butler County, Ohio (Tr. 7.) The Respondent is
engaged in the production of gas nozzles. During a 12-month
period ending May 30, 2003, the Respondent, in conducting its
business operations, purchased and received at its Butler
County, Ohio facility goods valued in excess of $50,000 di-
rectly from points outside the State of Ohio. The Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Glass, Molders, Pottery, Plastics and Allied Workers’
International Union, Local No. 45–B (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Two facilities are involved in this dispute. OPW-FC, the
Respondent, manufactures products that are primarily used in
gas stations, such as gasoline nozzles. OPW Engineered Sys-
tems (OPW-ES) designs, manufactures, and sells liquid han-
dling equipment, such as truck and railcar loading arms. The
Companies are 25 miles apart and are separate operating busi-
nesses, except for collective bargaining. The Union has repre-
sented the production employees of each company since about
1961. In September 2002,1 the Union, and the companies,
jointly entered into a 5-year collective-bargaining agreement
(Jt. Exh. 1).
Logan Cox, the Charging Party, is a signatory to the current
collective-bargaining agreement that he helped negotiate as a
union bargaining committeeman. Union bargaining commit-
teemen are also responsible for processing grievances and train-
ing union stewards. Cox had an employment connection with
the Respondent from August 5, 1974, until his discharge on
October 28, 2002. During that time Cox was disciplined only
once, in 1979, when he received a “verbal contact” for atten-
dance.
Cox filed his initial Board charge on September 24, and he
forwarded a copy to David Ropp, the Respondent’s president.
The charge alleged a unilateral change in the compensation of
union representatives for performing union business on com-
pany time. At some point between September 24 and the be-
ginning of October, the parties met to discuss the charge.
David Orewiler, the Respondent’s director of human resources,
and Cox, attended the meeting. During the meeting Orewiler
told Cox that from then on, if Cox filed another unfair labor
practice charge, it should be sent to him and not Ropp. For an
unknown reason the charge was not docketed until October 16.
The matter was eventually resolved by the parties.
On October 15, the Respondent told the Union that it in-
tended to recall several employees. In response, Raymond
Mann, chairman of the bargaining committee and an employee

1 All dates are in 2002 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
of OPW-ES, said that there was a disagreement between him-
self and Cox as to the application of the recall rights contained
in the collective-bargaining agreement. Cox believed that em-
ployees who had been bumped (involuntarily transferred) from
the Respondent to OPW-ES should be recalled to the Respon-
dent. Mann believed that only those employees who were “on
the street” (those who had not been bumped to OPW-ES)
should be recalled. He added that two of the employees who
were bumped to OPW-ES, Larry Grace and Kenny Miller, did
not want to return to the Respondent. Mann said that he was
going to ask officials of the International Union for their inter-
pretation of the collective-bargaining agreement language and
that he would get back to them after he had received the Inter-
national’s reply. The Respondent was noncommittal on the
issue but said that time was of the essence.
On October 17, the Respondent announced that it was going
to recall the individuals “on the street.” On the same day Cox
put Orewiler on notice that the Union had not received a re-
sponse from the International Union and that Cox was still of
the opinion that the Respondent’s action violated Grace and
Miller’s seniority rights. Thereafter, Cox and Mann began a
dialogue concerning the advisability of filing a grievance, ab-
sent a response from the International, over the recall. On Oc-
tober 23, the last day that a timely grievance could be filed,
Mann authorized Cox to file the grievance.
B. Filing of the Grievance and the Events
Surrounding the Discharge
During the evening of October 23, Cox asked Union Steward
Denny Block to write the grievance. Cox stated that he nor-
mally asked Block to write his grievances’ because of Block’s
“good handwriting.” The substance of the grievance contends
that the Respondent denied employees Grace and Miller their
recall rights to OPW-FC, by recalling a less senior employee.
The requested remedy is that the Respondent abide by the col-
lective-bargaining agreement and recall Grace and Miller.
After Block wrote the body of the grievance, Cox completed
the upper section. This section lists Local 45–B as the grievant,
the plant location, grievance number, date of the violation, date
the grievance was filed, and the article, section, and page num-
ber of the of the collective-bargaining agreement that was al-
legedly violated. In the line marked “Signed” over the words
“Aggrieved Employee” is, what appears to be, the signatures of
Grace and Miller. Cox admitted signing their names without
their permission. Cox signed his name over “Union Official”
and asked Edwin Chaney, another bargaining unit committee-
man, to also sign as a union official. Chaney was unaware that
the employees had not signed the grievance. Cox presented the
grievance to his supervisor, who placed it on the desk of her
supervisor, Ronnie Tolliver.
Tolliver was surprised when he saw Grace and Miller’s
names on the grievance when he arrived at work on the morn-
ing of October 24. He stated that it was “basic shop knowl-
edge” that Grace and Miller were happy at OPW-ES. Tolliver
took the grievance to Orewiler. Because the employees were
employed by OPW-ES Orewiler contacted Mary Hedge, human
resources director for OPW-ES, who in turn went to Mann and
they both approached Grace. First Grace, then Miller, denied
signing the grievance and stated that they were not grieving the
recall issue. Hedge relayed this information to Orewiler. Mann
told Cox that the employees were irate and suggested that Cox
“white out” the employees’ names and insert Local 45–B as the
aggrieved employee. Cox complied with the suggestion.
Around 4 p.m. of the same day, Cox went to the human re-
sources’ office and asked Orewiler’s assistant to swap griev-
ances. He explained his request by telling her that the employ-
ees were upset because he signed their names to the grievance.
She sent him to Orewiler. Cox asked if Orewiler had the griev-
ance. Orewiler said, “Yes” and gave Cox the grievance in re-
sponse to his request to see it. Cox, in return, handed Orewiler
the amended grievance and explained that, “The guys are rais-
ing hell about their names being on the grievance. So I took
their names off, put ‘45B’ on, and I would like the grievance
processed. The initial body of the grievance has not changed
and it needs to be processed.” Orewiler said, “This is highly
unusual. And I’m not too happy with the way things are going
here. I am going to get to the bottom of this. I am going to
speak to your chairman, Raymond Mann, and see what can be
done about your activity.” (Tr. 30.) Cox told him that he was
following Mann’s instructions and departed.
Cox was suspended on October 28 pending completion of
the Respondent’s “investigation.” Also on October 28 the Re-
spondent spoke with Chaney, the other bargaining unit commit-
teeman who signed the grievance. Chaney denied signing the
employees’ names and indicated that although he had signed
the grievance he “didn’t really read it.” (Tr. 160.) Chaney’s
denial was apparently accepted at face value and Cox, who had
always admitted and never denied signing the employees’
names, was sent a termination letter on November 8. The letter
stated that he was terminated for violating the Respondent’s
code of conduct and plant rules regarding falsification of re-
cords. Although Orewiler signed the letter, the decision was
made by Thomas Ciepichal, vice president of operations, with
the knowledge of his “boss” (Tr. 186–187, 197), President
David Ropp. (Tr. 210.) The only additional fact resulting from
the investigation was Chaney’s lack of involvement, and this
was known the day Cox was suspended. Thus, it appears that
the days between October 28 and November 8, were used to
ascertain the Respondent’s past disciplinary practice in similar
incidents. (Tr. 196.) The Respondent’s research disclosed only
one incident where an employee with 6 years seniority was
discharged for “Falsification of FMLA Medical documentation,
submitted.” (R. Exh. 17.) Although not apparent from the
exhibit, Orewiler testified that the employee was terminated for
forging a physician’s signature on a document that was part of a
leave-of-absence application.
1. Analysis and discussion
Filing a grievance is protected concerted activity within the
meaning of the Act. LB & B Associates, Inc., 340 NLRB 214,
216 (2003). In Roadmaster Corp., 288 NLRB 1195 (1988),
enf. 874 F.2d 448 (7th Cir. 1989), the Board found that the
signing of employees’ names to grievances by a union official
was protected concerted activity. Notwithstanding the reasons
advanced by the Respondent for its action, the express basis for
the discharge was Cox’s alleged misconduct arising out of his
OPW FUELING COMPONENTS 1037
protected concerted activity. Accordingly, the burden is on the
General Counsel to show that Cox’s conduct was not suffi-
ciently serious to warrant discharge. Detroit News, 341 NLRB
947, 951 (2004).
Cox had the testimonial demeanor of a truthful witness. He
admits that he should have placed his initials by the employees’
signatures, as he did on another grievance, or indicate that the
Union was the aggrieved party, as he did on the amended
grievance. Cox also exhibited a strong, unyielding, sense of
conviction in his beliefs when testifying about the substantive
collective-bargaining issues underlying his initial Board charge
and the grievance. I have no doubt that Cox was motivated in
filing the grievance by nothing more than his sincerely held
good-faith belief that his interpretation of the collective-
bargaining agreement was correct. He filed the grievance
solely to preserve the Union’s right to pursue what he believed
was the correct interpretation of the recall provision in the col-
lective-bargaining agreement. There is no evidence that Cox
would, or could, profit or gain anything from deceiving the
Respondent. There is no evidence that Cox held any resent-
ments or had any reason to be vindictive towards the named
employees. The Respondent offers that “the only way that Cox
could resurrect the settled issue of recall rights was to submit to
the Company a bogus grievance that was ‘signed’ by two em-
ployees allegedly grieving the matter.” (R. Br. at 26.) The
facts are contrary. The amended grievance, which did not con-
tain named employees, was processed by the Respondent. Re-
gardless, the resolution of the grievance, as advocated by Cox,
would have gained him nothing.
Even absent my finding that Cox was acting in good faith,
the reality of the grievance process in this case is such that no
union official, especially not one as experienced as Cox, could
possibly think that such a blatant deception could achieve any
objective. Under the very best scenario the ruse would be dis-
covered when the employees were told to return to their former
positions, and the chance of the deception progressing that far
is slight, if at all. Management knew that the employees did
not want to return to OPW-FC, and Cox made it clear to
Orewiler that he would file a grievance if the recall was not
corrected or if the Union was not allowed time to obtain input
from the International. If his intent was to deceive, it is doubt-
ful that he would give advanced notice of the deception, nor is
there evidence that anyone was either deceived or harmed by
his action.
I find, based on the foregoing, that Cox’s act of signing em-
ployees’ names to a grievance was part and parcel of the griev-
ance procedure and as such was protected concerted activity.
Roadmaster Corp., above at 1197. I also find, as set forth
above, that his conduct was not sufficiently egregious to re-
move his grievance-filing activity from the protection of the
Act. Generally, in cases not turning on the employer’s motive,
as here, the Board finds it unnecessary to decide whether the
Respondent also violated Section 8(a)(3). See, e.g., Phoenix
Transit System, 337 NLRB 510 fn. 3 (2002). Counsel for the
General Counsel submits that because the reason Cox was dis-
charged coincides with his protected grievance-filing activity,
he was essentially terminated for engaging in union activity,
and as such the discharge alone is evidence of animus sufficient
to support a finding of an 8(a)(3) violation. Roadmaster Corp.,
above at 1197. I agree with counsel for the General Counsel’s
contention, and find that the Respondent violated Section
8(a)(1) and (3) of the Act, as alleged.
Although a Wright Line analysis, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), is unnecessary, I will address the Respondent’s argu-
ment regarding the absence of illegal motive or union animus.
Inferences of animus and discriminatory motivation may be
drawn from circumstantial evidence rather than direct evidence,
including the pretextual nature of the reasons offered for the
employee’s discharge. Volair Contractors, Inc., 341 NLRB
673, 679 (2004), and cited cases.
“While it is a truism that management makes management
decisions, not the Board . . . it remains the Board’s role, sub-
ject to our deferential review, to determine whether manage-
ment’s proffered reasons were its actual ones.” Uniroyal
Technology Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir.
1998). And, in making that determination, it is surely appro-
priate to consider the insubstantial nature of the alleged mis-
conduct. See Neptune Water Meter Co. v. NLRB, 551 F.2d
568, 570 (4th Cir. 1977) (“The rule is that if the employee has
behaved badly it won’t help him to adhere to the Union, and
his employer’s anti-union animus is not of controlling impor-
tance. But if the employee is a good worker and his breach of
the work rules trivial, the more rational explanation for dis-
charge may be invidious motivation.”).
Detroit Paneling Systems, 330 NLRB 1170 (2000).
Cox had an employment relationship with OPW-FC, or one
of its various entities, for over 28 years. During those years he
was disciplined once. After spending 3 days attending to the
family of a deceased coworker in 1979, he received a “verbal
contact” for attendance. According to article 12 of the current
collective-bargaining agreement a verbal contact is the least
severe corrective action that the Respondent administers, and it
is removed after 3 consecutive months of acceptable atten-
dance. Cox’s misconduct, in essence, resulted from an error in
judgment. No one was harmed, no damage was done, and Cox
neither gained, nor could have gained anything. He admitted
his error and made it right. The Respondent issued the most
severe punishment possible—discharge. “[T]he quantum of
discipline may be explained by an ‘invidious motivation.’ Nep-
tune Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir.
1967).” Douglas Aircraft Co., 308 NLRB 1217, 1224 (1992).
I find additional evidence of pretext in the Respondent’s con-
tention that grievances written on union letterhead become
company records merely because the Respondent retains its
copy. Article 14, section 3, step 1, of the collective-bargaining
agreement (Jt. Exh. 1 at 25) states that once a grievance is re-
duced to writing the grievance becomes the property of the
union bargaining committee. In addition to that clear contract
language, part of the Cox discharge grievance specifically al-
leges that “Orewiler and Tom Ciepichal, agree that a grievance
belongs to the Union and that the Union has total responsibility
for said documents” (R. Exh. 1). Moreover, in Roadmaster,
above, even without the clear contract language set forth above,
the Board had no difficulty finding as evidence of pretext the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
discharge of a union officer for falsifying company documents,
and those documents were also grievances. “[G]rievance forms
. . . written on union letterhead cannot reasonably be considered
company documents.” 288 NLRB at 1195–1196.
Significantly, the Board in Roadmaster also found as pretext,
the employer’s contention that the signing of another person’s
grievance by a union official was the equivalent of falsifying a
medical excuse. Ibd.
Furthermore, Gardner’s [the discharged union officer] signing
of other individuals’ names to grievance forms is distinguish-
able from the falsification of medical excuses, . . . offenses
that the Respondent had used as a basis for discharge of em-
ployees in prior years. Gardner’s actions . . . merely initiated
a procedure through which personnel decisions would later be
determined. He derived no personal benefit from his conduct;
nor did it in itself have any substantive consequence. By con-
trast, the falsification of medical excuses, employment appli-
cations, or other personnel records affect the substantive as-
pect to employee-employer relationship because the Respon-
dent may rely on this information in making personnel deci-
sions about the individuals in question.
Id. at 1196. The identical statement can be made about the
Respondent’s contention in this case.
Based on the foregoing I find that the Respondent’s asserted
reasons for suspending and then discharging Cox are pretextual
and I infer that the Respondent proffered the false reason to
conceal its real motive which was, in part, because of his pro-
tected union activity, specifically his grievance-filing activity.
See, e.g., Lancaster-Fairfield Community Hospital, 303 NLRB
238 (1991), enfd. 968 F.2d 1215 (6th Cir. 1992); Roadmaster
Corp., 288 NLRB 1195 (1988), enfd. 874 F.2d 448 (7th Cir.
1989). Accordingly, I find that the suspension and subsequent
discharge of Cox violated Section 8(a)(1) and (3) of the Act.
C. The 8 (a)(1) and (4) Allegations
Cox filed his first charge with the Board on September 24.
Cox filed the charge on behalf of the Union in his representa-
tive capacity as bargaining committeeman. (GC Exh. 2.) He
forwarded a copy of the charge to David Ropp, the Respon-
dent’s president. The charge alleged a unilateral change in the
compensation of union representatives for performing union
business on company time. At some point after September 24,
but before October, the parties met to discuss the charge.
David Orewiler, the Respondent’s director of human resources,
and Cox attended the meeting. During the meeting Orewiler
told Cox that from then on if, Cox filed another unfair labor
practice charge, it should be sent to him and not Ropp. For an
unknown reason the charge was not docketed until October 16.
The matter was eventually resolved by the parties.
Cox was suspended on October 28, and later terminated, for
failure to adhere to acceptable standards of conduct and for
falsifying records. (GC Exh. 6.) He filed the original charge
over his discharge, acting as an individual, on March 12, 2003.
In mid-December 2002, there was a third-step grievance meet-
ing over his discharge. The Respondent was represented by
Orewiler and Thomas Ciepichal, vice president of operations.
The Union was represented by Raymond Mann, chairman of
the union bargaining committee, Committeemen Edwin Chaney
and Jim Miller, and International Union Representative Wesley
Royster. Mann testified that after some discussion Orewiler
commented that “we need to settle this thing. But you have
already made Mr. Ropp mad with the little thing at the Labor
Board.” Ropp was the “boss,” to whom Ciepichal was refer-
ring when Ciepichal admitted that he told his boss of his deci-
sion to discharge Cox. (Tr. 78, 186–187, 197, 210).
Mann also testified that in early January 2003, the parties
met to discuss returning work to the plant. Ciepichal said that
he was working hard to get work back to the plant but that “we
[the Union] had already made Mr. Ropp mad with our charges
at the Labor Board.” Mann replied that the Union had to repre-
sent people the best way they could. Ciepichal said that “if we
didn’t find some way of working together there could be a pos-
sibility that more work would be moved out, and maybe the
whole plant.” (Tr. 79–80.) In addition to Ciepichal the Re-
spondent was represented by Orewiler, James Gregory Pearson,
plant manager (referred to as Gregory), and Ronald Tolliver,
business unit manager for dispenser products. The Union was
represented by the bargaining committee, Mann, Miller,
Chaney, Larry Perkins, and Ralph Roche.
Based on Mann’s testimony, and the abrupt timing of Cox’s
discharge, the counsel for the General Counsel submits that the
filing of the charge was a contributing factor in the discharge
decision and thus a violation of Section 8(a)(1) and (4). Coun-
sel for the General Counsel also alleges an independent 8(a)(1)
violation based on the alleged threatening comment made by
Ciepichal combining the concepts of Labor Board charges be-
ing evidence of not working together, with loss of work and
possible plant closure.
Mann’s testimony is the underpinning of the allegations. He
is the only witness to testify that Orewiler and Ciepichal made
the statements alleged in the complaint. Orewiler and
Ciepichal denied making the statements, and the other man-
agement witnesses denied that the statements were made.
Larry Perkins, who attended the early January meeting as a
bargaining committeeman, testified pursuant to a subpoena, as
a witness for the Respondent. He also denied that the state-
ments were made, albeit somewhat less emphatically than the
management witnesses, stating, “None that I can recall.” “I
hadn’t heard any comments like that.” “I didn’t witness any
comments like that.” (Tr. 131–133.) Although the Respon-
dent’s witnesses testified consistently with each other, based on
my observations of their demeanor when testifying none of the
Respondent’s witnesses appeared truthful when denying the
statements alleged in the complaint.
In addition to demeanor I have carefully weighed all the tes-
timony, keeping in mind the personal interests of each witness
in the outcome of the case. In this regard, I have no reason to
doubt the veracity of Mann because of his position in the Un-
ion, as the Respondent suggests. On the contrary, it is Mann’s
interpretation of the collective-bargaining agreement that the
Respondent implemented. It is Cox who disagreed with Mann,
and Mann testified that he told Cox, after the fact, that he
should not have put the names of the employees on the griev-
ance. Mann has been employed by OPW for 30 years and has
been the chairman of the bargaining committee for 28 of those
OPW FUELING COMPONENTS 1039
years. He has been employed by OPW-ES since 1990. I find
his demeanor to be that of a reliable and trustworthy witness,
who was striving to tell the truth to the best of his ability. I
fully credit his testimony. See generally, e.g., Parts Depot,
Inc., 332 NLRB 670, 705 (2000). In crediting Mann’s testi-
mony I acknowledge the Respondent’s argument that at the
point in time when Ciepichal mentions charges, Cox had only
filed his initial charge. Possibly Ciepichal misspoke, or he
anticipated that Cox would file a charge if his unlawful dis-
charge was not rescinded, and the same reaction would be
forthcoming. In any case this does not detract from Mann’s
credible testimony.
Section 8(a)(4) provides that it shall be an unfair labor prac-
tice for an employer “to discharge or otherwise discriminate
against an employee because he has filed charges or given tes-
timony under the Act.” The Board’s approach to this provi-
sion “has been a liberal one in order to fully effectuate the sec-
tion’s remedial purpose.” General Services, 229 NLRB 940,
941 (1977), relying on NLRB v. Scrivener, 405 U.S. 117, 124
(1972). Such an approach is consistent with the Court’s ac-
knowledgement that the initiation of a Board proceeding ef-
fectuates public policy and, therefore, though Section 8(a)(4),
“Congress has made it clear that it wishes all persons with in-
formation about [unfair labor] practices to be completely free
from coercion against reporting them to the Board.” Nash v.
Florida Industrial Commission, 389 U.S. 235, 238 (1967).
Metro Networks, 336 NLRB 63, 66 (2001).
Violations of Section 8(a)(4) are analyzed using the analyti-
cal framework established by the Board in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). I have previously found that Cox
was discharged for engaging in protected grievance-filing activ-
ity. I have also found that the reason offered by the Respondent
for the discharge was a pretext.
Orewiler’s statement during the third-step grievance meeting
makes it clear that the filing of the Board charge was the stum-
bling block to settling the grievance because the filing of the
charge had made President Ropp mad. Notwithstanding the
clarity of Orewiler’s statement, not a month later, in early Janu-
ary 2003, Ciepichal again referenced Ropp being mad about the
Labor Board charges. Ropp’s continued animosity towards the
filing of a Board charge, as voiced by management officials
who allegedly were describing his ongoing reaction to the em-
ployees, supports the General Counsel’s contention that part of
the motivation for the Cox discharge was the filing of the Board
charge. Accordingly, I conclude, based on Mann’s credited
testimony, that the General Counsel has met his burden of es-
tablishing that the Respondent also took advantage of the for-
tuitous filing of the grievance to retaliate against Cox for filing
a charge with the Board in violation of Section 8(a)(1) and (4).
Ciepichal also used the January meeting, the purpose of
which was to discuss ways to return work to the plant, to equate
the filing of Board charges with not working together, the result
of which could possibility be that more work would be moved
out of the plant. I find that statement to be a threat to the em-
ployees, that if they continued to file charges with the Board
the Respondent would not return work to the plant, and accord-
ingly, I find that the statement is an independent violation of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. OPW Fueling Components is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Glass, Molders, Pottery, Plastics and Allied Workers’
International Union, Local No. 45–B is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening employees that if they continued to file charges
with the National Labor Relations Board, the Respondent
would not bring work back into the plant.
4. The Respondent violated Section 8(a)(1), (3), and (4) of
the Act by suspending employee Logan Cox on October 28 and
by discharging him on November 8, 2002.
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 suspended and dis-
charged an employee, it must offer him reinstatement and make
him whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of suspension to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and it must remove from its files any ref-
erence to the unlawful suspension and discharge of the em-
ployee. On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, OPW Fueling Components, Butler County,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that if they continue to file
charges with the National Labor Relations Board, the Respon-
dent would not bring work back into the plant.
(b) Suspending, discharging, or otherwise discriminating
against any employees for engaging in union or other protected
concerted activity.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Logan
Cox full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
to his seniority or any other rights or privileges previously en-
joyed.
(b) Make Logan Cox whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge,
and within 3 days thereafter notify the employee in writing that
this has been done and that the unlawful suspension and dis-
charge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Butler County, Ohio, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 28, 2002.

3 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.”