Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Administrative Judge Opinions

May 20, 2010

26-CA-023497 (N.L.R.B. May. 20, 2010)

JD(ATL)–12–10
Memphis, TN
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
OZBURN-HESSEY LOGISTICS, LLC
and
UNITED STEELWORKERS UNION
Cases 26–CA–23497
26–CA–23539
26–CA–23576
Christopher J. Roy and William T. Hearne, Esqs.,
for the General Counsel.
Ben H. Bodzy and Stephen D. Goodwin, Esqs.,
for the Respondent.
Mr. Benjamin Brandon, for the Charging Party.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Memphis,
Tennessee, on February 16, 17, 18, and 19 and March 3 and 4, 2010, pursuant to an amended
consolidated complaint that issued on January 27, 2010.1 The complaint alleges that the
Respondent violated Section 8(a)(1) of the National Labor Relations Act in various respects
including coercively interrogating employees, threatening employees, and interfering with the
distribution of union literature, and that the Respondent violated Section 8(a)(3) of the Act by
warning, suspending and discharging union adherents. The Respondent’s answer denies any
violation of the Act. I find that certain actions and statements of the Respondent violated Section
8(a)(1) of the Act and that various warnings, the suspension, and two of the discharges violated
Section 8(a)(3) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent I make the
following
Findings of Fact
I. Jurisdiction
Ozburn-Hessey Logistics, LLC, the Company or OHL, is a Tennessee corporation
engaged in the business of transportation, warehousing, and logistic services for various

1 The spelling of the name of the Respondent in the caption has been corrected from that shown
on the consolidated complaint which spelled Hessey as “Hessesy.” All dates are in 2009 unless
otherwise indicated. The charge in Case No. 26–CA–23497 was filed on August 28. The charge
in Case No. 26–CA–23539 was filed on October 2. The charge in Case No. 26–CA–23576 was
filed on November 10 and was amended on January 27, 2010.
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businesses. It annually performs services valued in excess of $50,000 for businesses located
outside the State of Tennessee and annually purchases and receives goods valued in excess of
$50,000 directly from points located outside the State of Tennessee. The Respondent admits,
and I find and conclude, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that United Steelworkers Union, the
Union, is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Overview
This case arises from the Company’s reaction to organizational activity by its employees.
The Company’s Associate Handbook, states:
OHL does not believe that union representation would be in the best interest of OHL
associates or the Company itself. … OHL believes that a union can only disrupt the
relationship between the Company and its associates. This type of disruption could
interfere with our growth and the progress and future job security of associates.”
The issues herein relate to whether the Company, in an effort to keep itself union free,
violated the Act.
The Company operates three warehouses in Memphis from which it provides logistical
support to multiple national retailers. Employees package and ship various products to the
respective retailers. One of the warehouses, referred to as Remington, is located on Global
Drive, about two miles from the main company complex on Holmes Road. The Holmes Road
complex consists of two warehouses, one with the address of 5510, and the other with the
address of 5540. Union activity began at the 5510 warehouse. That warehouse serves several
different customer accounts. The respective accounts are referred to by shortened names that
relate to the product being packaged and shipped including Waterpik, Fiskars, and HP, which
handles Hewlett Packard products.
The supervisors and employees servicing the various customer accounts are overseen
by area managers. The area managers relevant to this proceeding are Phil Smith, who oversaw
the Fiskars account, Kelvin Davis, who oversaw various accounts including accounts at the
Remington warehouse, and Linda Sones, who oversaw the HP account.2 Personnel and
disciplinary matters are overseen by Human Resources Manager Evangelia (Van) Young.
Manager Van Young would consult with the corporate office and “get their advisement” with
regard to serious disciplinary matters. At the relevant times herein, Laura Reed was the
corporate Employee Relations Manager. Reed did not testify.
Union organizational activity began in early May. After beginning his employment with
the Company, Charles Tate, who had previously worked at an organized facility, contacted the
president of the local union at that facility. Thereafter, in the first or second week of May, Tate
and employee Carolyn Jones met with the president of the local and an international
representative. Thereafter they began speaking in favor of the Union and distributing prounion
literature to their fellow employees. Various company emails and reports establish that the

2 The position titles used herein are as they appear on Respondent’s Exhibit 9.
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Company was aware of the union activities of Jones, Jerry Smith, who is the boyfriend of Jones,
and Renal Dotson no later than mid-August.
B. The Section 8(a)(1) Allegations
1. Area Manager Phil Smith
Paragraph 7 of the complaint, in 15 subparagraphs, alleges multiple violations of Section
8(a)(1) of the Act by Area Manager Phil Smith.
Subparagraphs 7(a) and (b) allege creation of an impression of surveillance and
interrogation arising from comments by Smith to employees in the Fiskars account. The
employees who work in the Fiskars account gather together each morning for a brief preshift
meeting in which they are informed of the work that needs to be performed that day. At the
outset of the organizational effort, union meetings were announced by party invitations that
Jones prepared. The invitations mentioned nothing about the Union or a union meeting.
According to employee Charles Tate, the location of the party was stated as “Contractors
Place,” but the address of the location was not given. No invitation was offered into evidence.
Employee Jones distributed these party invitations prior to the first union meeting which was to
be held on June 18. At the June 18 Fiskars preshift meeting, Jones recalled that Smith
commented that he had heard that some employees were trying to get a Union started. In the
same meeting he mentioned that he had a party invitation but that he “wasn’t invited to it.” On
June 21, at the preshift meeting, Smith asked, “How was the party?” No one responded. Smith
denied making the foregoing comments. There is no evidence that Smith was aware that the
party was actually a union meeting. Thus, even if I were to credit Jones, there is no basis for
finding that the comments related to union activity rather than a party. Notwithstanding the
presence of the Fiskars account employees at those two preshift meetings, the General
Counsel presented no witness who corroborated Jones’ testimony regarding Smith’s alleged
comments. I credit Smith, and I shall recommend that these allegations be dismissed.
Subparagraphs 7(c) and (i) allege a threat of loss of benefits. In both instances, the
threat included loss of a bonus referred to as “gain shares.” The gain share program includes a
bonus awarded in different amounts depending upon performance and seniority. Area Manager
Smith identified a document describing the gain share program which states that employees
“under a collective-bargaining agreement are not eligible for this plan.”
With regard to subparagraph 7(c), on a day in July when employee Jerry Smith was
labeling product, Area Manager Phil Smith walked by him on his way to the Fiskars account.
Area Manager Smith commented, as he passed Jerry Smith without stopping, that Jerry Smith
“didn’t know what … [he] was risking,” that he “could lose his gain shares … if a union” came in.
Area Manager Smith denied having any conversation with Jerry Smith regarding gain shares in
June. The comment was made in July. There was no conversation. I credit Jerry Smith.
Subparagraph 7(i) relates to a meeting regarding benefits in August in which Area
Manager Smith spoke with the employees in the Fiskars account regarding the gain share
program. Leadman John Puckett asked whether employees would still be eligible for the gain
share program if the employees got “a union in here.” Employee Carolyn Jones recalled that
Smith answered "Absolutely not, you will not be eligible for … [gain share].” I am mindful, as
pointed out in the brief of the Respondent, that Jones referred to the program as “team share.”
That misappelation has no bearing upon her credible recollection of Smith’s “[a]bsolutely not”
statement. Employee Linda Cotton recalled that, after stating that the employees would lose
“gain shares,” Smith also stated that they would also lose other incentives, “the dinners, the
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cups, T-shirts.” Employee Undenise Martin confirmed that Smith said the employees would not
get “T-shirts and lunches.” Employee Athena Cartwright recalled that Smith told the employees
that, if there were a union, employees would lose gain shares, cups and T-shirts.
Area Manager Smith admitted informing the employees in the August meeting that
“under the current gain share program with OHL if there is a collective bargaining unit in place
the gain share pay-out will not apply to that group.” He denied referring to any other benefit that
would be lost. Smith’s admitted statement regarding the gain share program confused the
language of the program, which excludes employees covered by a collective-bargaining
agreement, with employees represented by a union in an appropriate unit. In Niagara Wires,
Inc., 240 NLRB 1326 (1979), the Board held that “an employee benefit plan which restricts
coverage to unrepresented employees is per se violative of Section 8(a)(1) of the Act,
regardless of whether the employer adds to the misconduct by implementing the restriction or
exploiting it during an organizing campaign.” Id. at 1328. [Emphasis added.] Even if Smith had
correctly reported the exclusionary language of the gain share program, the Respondent should
have made clear that benefits “would be subject to good-faith negotiations or that the … plan
would not cover the employees because collective bargaining had provided them with other
benefit programs.” Wal-Mart Stores, 352 NLRB 815, 849 (2008). I credit the mutually
corroborative testimony of the employees and find that, in addition to referring to loss of the gain
share program, Smith also stated that the employees would lose the incentives of dinners, cups,
and t-shirts. The Respondent, by informing employees that they would lose the gain share
program and other benefits if they selected the Union as their collective bargaining
representative, violated Section 8(a)(1) of the Act.
Subparagraph 7(d), like subparagraphs 7 (a) and (b), relates to comments by Area
Manager Smith regarding party invitations. Employee Linda Cotton recalled that Smith, in an
informal conversation in August, asked whether she was going to a party that night. Cotton
answered "What party? Unless you’re having one, I don’t know anything about a party." Smith
did not reply. Cotton testified that she did not know what party Smith was referring to. Counsel
for the General Counsel then asked Cotton whether there was to be a union meeting that day,
and she responded affirmatively. Even if Smith, who denies the interrogation, was obliquely
inquiring about the union meeting, Cotton did not make the connection between the party and
the union meeting. Thus the interrogation was not coercive. I shall recommend that this
allegation be dismissed.
Subparagraph 7(e) alleges that Smith promulgated a rule prohibiting employees from
soliciting on company time. Carolyn Jones testified that, on August 5, at a preshift meeting in
Fiskars, Smith stated that he had heard that some employees were soliciting and that “we were
not to solicit anything at any time on OHL premises.” Smith denied making the foregoing
comment, and the General Counsel presented no witness corroborating Jones. I credit Smith,
and I shall recommend that this allegation be dismissed.
Subparagraph 7(f) alleges interrogation and creation of an impression of surveillance of
union activities. The allegation is predicated upon the testimony of employee Undenise Martin
who recalled that Area Manager Smith asked a group of employees that included Operations
Supervisor Barbara Oyugi and employees Tasha Blevins and Athena Cartwright whether they
were “going to the party.” Oyugi and Blevins asked, “What party?” Smith replied, “[O]h, you all
know about the party. Undenise, you know what I’m talking about, don’t you?” Martin did not
answer. She testified that, at the time, she was unaware that there was a union meeting
scheduled for that night and “didn’t know what he [Smith] was talking about.” As with
subparagraph 7(d), I do not find that a conversation that an employee does not understand
because the employee “didn’t know what he was talking about” and that related to a party rather
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than a union meeting is coercive or creates an impression of surveillance. Employee Cartwright,
called as a witness by the General Counsel, was not asked about the foregoing conversation.
Smith credibly denied the conversation. I shall recommend that this allegation be dismissed.
Subparagraph 7(g) alleges that Smith, on August 7, interrogated employees. A union
meeting had been scheduled for August 6, but there had been a violent storm and the meeting
was not held. Employee Renal Dotson recalled that, at the Fiskars preshift meeting on August 7,
Smith asked the employees whether they had gotten home safely and then asked whether they
had made it to the party. No employee corroborated the foregoing testimony, and Smith denied
making any such inquiry. I shall recommend that this allegation be dismissed.
Subparagraph 7(h) alleges that Smith promulgated a rule prohibiting employees from
soliciting on company time.3 On August 11, Carolyn Jones was called to the office in the back of
the Fiskars account area by her supervisor Barbara Oyugi to meet with her and Area Manager
Smith. Smith presented Jones with a letter noting that it had been reported that she had
engaged in distribution in a work area. It then sets out the Company’s valid solicitation and
distribution rule. The letter closes stating that it is a reminder of the policy, not discipline. Jones
recalled that, after she read the letter, Smith commented that there had been complaints that
Jones had distributed literature to employees who were working. Jones denied doing so.
According to Jones, Smith stated that “soliciting, you know, it’s not permitted on
company grounds.” Jones pointed out that other employees were selling “Avon, t-shirts, and
food.” Smith replied that he was not talking about other employees, he was talking about her,
and that he would “handle them.” Smith recalled only that he gave the letter to Jones and that
she had no questions. Oyugi recalls that Jones asked whether she was the only employee
receiving the letter, and Smith stated that she was not, that “everybody who was found doing it,”
would be given one. Smith then told Jones that, if she was going to “pass out anything this had
to be on your breaks and … not disturbing anybody else from doing their work.”
Jones admitted that she “took a few minutes and read it [the letter].” The policy clearly
states that “[w]orking time does not include free time such as break periods and meal time.” If
Smith had thereafter stated a restriction inconsistent with the policy, I am satisfied that Jones
would have brought the inconsistency to his attention. I credit Oyugi’s recollection of the
conversation. I shall recommend that this allegation be dismissed.
Subparagraph 7(j) alleges the promulgation of a rule prohibiting solicitation on company
property. In this instance, on August 25, employee James Bailey, who works in the HP account,
was called to the office of his supervisor, Vania Washington, where he met with Area Manager
Smith and Washington. Smith handed him a letter similar to that given to Jones and read the
letter to him as Bailey followed along. On cross examination, Bailey initially agreed that he and
Smith read the letter together, but then testified that he read it. Smith told Bailey that it had been
reported that he had “been passing out petitions in the work area.” Bailey denied doing so.
Bailey recalled that Smith told him that, “if I pass out any more -- solicit any more people,” the
Company would “take further action,” that he could not “pass out any more petitions in the
parking lot, work area, nowhere on the premises.” On cross examination, Bailey stated that he
was told that he “couldn’t solicit, pass out any kind of paperwork on the premises.”
Both Washington and Smith recall that, after Smith read the letter with Bailey following

3 The General Counsel, in its brief, withdrew an allegation of interrogation included in
subparagraph 7(h).
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along, Smith asked if he had any questions. Bailey stated that he did not and asked for a copy
of the letter. Smith told him to keep the copy he had been given.
I credit Smith and Washington. Bailey’s testimony is consistent with him hearing Smith
speaking as he read the letter that referred to solicitation and distribution. It would appear that
Bailey misunderstood what was being said and failed to realize the exception for nonworking
time and nonworking areas. If, contrary to the foregoing, there was no misunderstanding and
Smith stated a restriction greater than that set out in the letter, I am satisfied that Bailey would
have sought clarification. I shall recommend that this allegation be dismissed.
I shall deal with subparagraph 7(k) in my discussion of the discharge of Renal Dotson.
The evidence establishes that Human Resources Manager Young, not Smith, contacted
the police on August 31. Thus I shall recommend that subparagraph 7(l) be dismissed.
Subparagraphs 7(m) and (n) of the complaint relate to confiscation of union literature
from employee breakrooms, once on October 15 and twice on October 16.
On October 15, employee Jennifer Smith went to the breakroom in Building 5540 for her
11 a.m. break with employee Shelia Childress. In the breakroom they found prounion literature
on each of the four break tables. They sat together at one table and picked up and began read
the literature. Area Manager Phil Smith came into the breakroom, spoke, saying “how you
doing,” and proceeded to take the union literature off of the other three tables and “balling the
papers up.” As he was leaving, Jennifer Smith asked if he was going to take the one she was
reading, and he answered, “No, you can keep yours.” Employee Jennifer Smith recalled that this
occurred abut 11:10 a.m., five minutes before the 15 minute break ended. Jennifer Smith
explained that, at the time, only she and Childress were present because “most of them [the
other employees on break] are smokers.” Those who smoke go outside.
On October 16, employee Mark Yelverton arrived at Building 5540 prior to the 8:00 a.m.
start of his shift. He went to the breakroom, ate breakfast, and placed prounion literature printed
on blue paper on the tables in the breakroom. He then left to begin work. After walking about 60
yards from the breakroom, Yelverton heard his name called. He turned and saw Area Manager
Phil Smith. Smith was holding blue papers. He raised the papers over his head, tore them, and
“hollered out, ‘Not in my warehouse.’” He then threw the papers into a garbage can. On cross
examination, Yelverton explained that Smith, who had “hollered out” to him was not screaming
because there was no equipment running. I do not credit Smith’s denial of the foregoing
interaction with Yelverton. Yelverton’s credible testimony regarding Smith’s spontaneous
reaction to finding prounion literature and tearing it up is consistent with his balling up union
literature in the presence of Jennifer Smith and Shelia Childress.
Later that day, October 16, employee K. C. Foster observed Area Manager Smith pick
up prounion literature from the four break tables in Building 5540. Foster’s break was from 10
a.m. until 10:15 a.m. Other employees were with Foster in the breakroom and were presumably
still there when he left. He left the breakroom at 10:13 a.m. As he was leaving, Smith entered
the breakroom and stated, “It’s time to clean up.” Through the window of the breakroom he saw
Smith picking up the prounion literature. Foster had never previously observed Smith cleaning
up in the breakroom.
Area Manager Smith testified that he would clean up trash, including newspapers,
magazines, and food, left in breakrooms “[o]n a daily basis multiple times.” He explained that
employees were expected to clean up after themselves, but, if they did not, “we go behind
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them.” On cross examination Smith admitted that “[t]here are custodians who clean the
breakrooms.” In response to further questions on cross examination, Smith testified, “If break is
over and there’s no one in there, then all materials are thrown away.”
Although Smith testified that he threw away trash when “break is over and there’s no one
in there,” that was not the case on October 15 when Jennifer Smith and Shelia Childress were
present throughout Smith’s cleaning which occurred some five minutes before the end of break.
The “smokers” who first went outside, might well have returned through the breakroom. If they
had done so, no prounion literature would have been on the tables because Smith had removed
it. Similarly, he began removing literature two minutes before the end of the break from which
employee Foster left at 10:13 a.m. The testimony of Foster establishes that he left alone, and
there is no evidence that the employees with whom he was on break left before him.
The brief of the General Counsel argues that Smith’s assertion that “he routinely cleaned
the breakroom should be rejected as it defies logic that … [an Area Manager] would regularly
perform such menial duties.” Smith’s admission that “custodians clean the breakrooms” is
consistent with that argument, as is the testimony of employee Foster that he had never
previously observed Smith cleaning the breakroom. Whether Smith performed such duties
regularly is immaterial. On October 15 and 16, he confiscated prounion literature prior to the
ending of the break periods of the employees.
An employer may maintain and enforce housekeeping rules that result in the
confiscation of prounion literature from nonworking areas “left behind following break periods.”
North American Refractories, Co., 331 NLRB 1640,1643 (2000); Page Avjet, Inc., 278 NLRB
444, 450 (1986). An employer may not remove or destroy prounion literature from nonworking
locations on employees’ nonworking time. Jennie-O Foods, 301 NLRB 305, 338 (1991). Smith
removed prounion literature from nonworking areas during break time in the presence of
employees. His “[n]ot in my warehouse” reaction to the prounion literature left by Yelverton
confirms that his purpose was confiscation, not cleaning. The Respondent, by confiscating
prounion literature from breakrooms prior to the ending of breaks, violated the Act.
Subparagraph 7(o) alleges interrogation and a threat of unspecified reprisals. After lunch
on the day that Area Manager Smith had shouted “[n]ot in my warehouse” to Yelverton, they
engaged in a short conversation. Yelverton, whose support for the Union was well known,
recalled that Smith asked him what he thought the Union could do for him. Yelverton stated his
belief that the Union could provide better wages and benefits. Smith noted that the Union might
not be able to do the things that Smith had done for Yelverton, referring to time off that had
been granted to him following an accident that had injured his wife. Yelverton disputed that,
stating, "You didn’t do it. … [M]y FMLA provided for me to take off that amount of time."
Yelverton thought that Smith was claiming that he was out of FMLA leave, but Yelverton knew
he was not and asked Smith “show me the amount of FMLA that I had taken off.” When it
appeared to Yelverton that the conversation “was going in the wrong direction” he ended it by
stating, “[Y]ou stay on your side of the fence, and I’ll stay on mine.”
Smith acknowledges the substance of the foregoing conversation, but denies that he
asked Yelverton what he thought the Union could do for him. He contends that he explained to
Yelverton that OHL had granted him time off for a week prior to his receipt of FMLA leave.
Even if Smith did ask Yelverton what he thought the Union could do for him, asking that
question of a known active union adherent was not coercive. Yelverton did not believe what he
recalls Smith was telling him regarding FMLA leave, and he testified to no threat. Smith’s
argument that the Respondent had granted him leave prior to the FMLA leave contained no
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threat not to do so in the future. I shall recommend that this allegation be dismissed.
2. Human Resources Manager Van Young
Paragraph 8 of the complaint alleges four instances upon which Human Resources
Manager Young violated Section 8(a)(1) of the Act.
Subparagraph 8(a) alleges that Young interrogated an employee about the union activity
of other employees.4 Employee Undenise Martin, on an unspecified date in June, was out of
work one day taking care of her daughter. She received a telephone call from Human
Resources Manager Young asking how she was doing. In the course of their conversation,
Young asked whether Martin had “heard anything about the union activities.” Martin replied that
she “didn’t know anything that was going on,” but that she had heard “some talk.” Young asked
why would “they want to organize the Union?” Martin replied that employees working in the
Fiskars account did not feel like they could “come to her and talk to her,” but she had not “heard
anything at the time about the Union.”
Counsel for the Respondent asked Young, “Did you ever call her [Martin] at home and
discuss Union activity in any way?” Young answered, “No.” Thereafter, with regard to a
conversation that Young admitted having with Martin, she explained that she could not say
when that discussion occurred because she had had “so many discussions with her [Martin].” I
credit Martin who specifically recalled the circumstances of the telephone call from Young.
Young was seeking to obtain whatever information she could glean from Martin relating
to union activity at the Company. Martin’s union sympathies were not known. Young was the
highest ranking human resources manager at the warehouse and oversaw all serious
disciplinary actions. After Martin denied knowing anything about any union activity, but admitted
that she had heard “some talk,” Young began probing for more information, asking why “they,”
an obvious reference to the employees responsible for the “talk” to which Martin referred, would
“want to organize the Union.” The calling of an employee whose union sympathies are not
known at her home and interrogating her regarding her knowledge of the union activities of
other employees was coercive. See Stevens Creek Chrysler Jeep, 353 NLRB No 132, slip. at 2
(2009). The Respondent, by coercively interrogating employees regarding the union activities of
other employees, violated Section 8(a)(1) of the Act.
Subparagraph 8(b) alleges that Young created the impression that employees’ union
activities were under surveillance and threatened to terminate employees if they selected the
Union as their collective bargaining representative.5 On August 6, Young spoke with employee
Undenise Martin in her work area regarding a matter involving Operations Manager Jim
Windisch. Young then asked “was there a Union meeting going on.” Martin, in a somewhat
confused sentence, testified that Young “was just asking if we had a Union to come into the
plant that we wouldn’t have a job,” that Young said that “a lot of us [are] going to be on the other
side of the fence.” Young noted that she knew who was “starting this Union thing,” and looked in
the direction of Carolyn Jones who was standing immediately behind Martin. Young implicitly
denied the foregoing conversation, explaining that it related to Windisch and communication in
Fiskars, not the Union.

4 The General Counsel, in its brief, withdrew an allegation of solicitation of grievances included
in subparagraph 8(a).
5 The General Counsel, in its brief, withdrew an allegation of creation of an impression of
surveillance included in subparagraph 8(b).
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Martin phrased Young’s remark about whether there was a union meeting going on in
the present tense. The employees were working, not attending a union meeting. Whether Young
misstated the question she intended to ask or whether Martin misunderstood her is immaterial.
Young’s “just asking” about a union coming into the plant is inconsistent with telling Martin that
“we wouldn’t have a job.” It is unclear whether Young spoke those words or whether Martin was
providing a context for Young’s “other side of the fence” remark. Martin did not specify whether
the “other side of the fence” remark referred to a literal situation or was a figurative reference to
people having different and opposing opinions. Jones’ support for the Union was no secret. I
shall recommend that this allegation be dismissed.
Subparagraph 8(c) alleges that Young, on August 31, contacted police to have Union
and employee handbillers removed from public property. On August 31, International Organizer
Benjamin Brandon and retired International Organizer Curtis Hawkins came to the Holmes Road
warehouses to distribute union literature to employees as they went to lunch. Hawkins arrived
shortly after Brandon. Employee Carolyn Jones, who had been suspended on August 28, and
Jerry Smith, who had been discharged on August 28, arrived a few minutes later.
At the point where the access road to the warehouses intersects with Holmes Road,
there is a wide white line adjacent to a stop sign. The distance from that point to the warehouse
fence and gate is approximately 100 feet. Area Manager Phil Smith admitted that he believed
that the current property line was the wide white line adjacent to the stop sign.
On August 31, the security guard called Smith, stating that “there was someone in the
road blocking traffic … and he didn’t know what they were doing.” [Emphasis added.] Smith
called Human Resources Manager Young and told her that the security guard had reported
“some gentlemen [were] out there and they were stopping the employees going in and out ….”
Area Manager Smith went to investigate. He testified that, when he arrived, only
Hawkins was present and that he was about 40 feet onto company property. He informed
Hawkins that he could not handbill on company property. Hawkins replied that he had been
“doing this for 30 years” and knew what he could do. Van Young arrived and called to Smith,
asking if he had called the police. He answered that he had not, and she replied, “I’ll do it.” As
Young was calling, she claims that another individual arrived. Smith says that Hawkins was
backing up and, about the time they reached the wide white line, Brandon drove up. According
to Smith, he spoke with Brandon, and Brandon agreed to stay beyond the white line. Smith
called to Young to cancel the police. She unsuccessfully tried to cancel her initial request.
Shortly thereafter two officers arrived.
International Organizer Brandon disputes Smith’s testimony, claiming that he arrived first
and that both he and Hawkins stationed themselves outside the white line and remained on the
Holmes Road side of the wide white line. He recalled that Area Manager Smith, after observing
Hawkins and him for several minutes, approached them with the security guard and Young
following. Smith asked the group to leave, stating that they were trespassing. Brandon replied
that they were not on company property, “that it was public property and we had a legal right to
handbill there.” Smith directed Brandon to “go across the street,” referring to Holmes Road.
Brandon refused. Smith accused Brandon of crossing the wide white line, and Brandon denied
that he had done so. Human Resources Manager Young called to Smith, asking if he had called
the police. Brandon incorrectly recalled that, at that point, Smith called the police.
Carolyn Jones and Jerry Smith arrived as Area Manager Phil Smith approached
Brandon and Hawkins. Jerry Smith heard Phil Smith tell Brandon that “he could not do that here,
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and he needed to go across the street,” to which Brandon responded that he “had the right to be
here to do what he was doing.” At that point, Jerry Smith heard Young call to Phil Smith, asking
whether he had called the police. When Smith answered that he had not, Young stated that she
was “doing it.”
A transcript of Young’s telephone call to the police reflects that she reported that there
were “some members … some guys out here that are harassing our employees.” If, as Phil
Smith testified, only one individual was present, “some guys” could not have been involved in
any alleged harassment. Young never reported that the individuals were on Company property.
She stated that “they are arguing with my mgr [manager] because he asked them to get off of
our property.” When attempting to cancel her request that officers come, she stated that “we
pretty much told them where they got to stand and not come on our property.”
As pointed out in the brief of the General Counsel, when the telephone call was made,
even the Respondent does not contend that anyone was on company property. If, as Smith
testified, Brandon arrived after he had walked Hawkins to the wide white line, there were, as
Young reported, two individuals present “arguing with” Smith. Both were outside the white line.
Contrary to the testimony of Smith, the security guard, who did not testify, reported that
more than one person was present, using the pronoun “they.” Consistent to that report, Smith
told Young that there were “some gentlemen out there.” I credit the testimony of Brandon that
he arrived first, Hawkins arrived shortly thereafter, and neither crossed the wide white line.
Two officers arrived in one vehicle. They spoke first with Phil Smith. Thereafter, they
spoke with Brandon, informing him that Phil Smith had said they had crossed the white line.
Brandon denied that they had done so. The officers remained a few minutes and then left.
An employer violates the Act “[b]y claiming that union agents are trespassing on private
property when in fact they are not, and calling the police to eject them.” Walgreen Co., 352
NLRB 1188, 1193 (2008). By contacting the police to have union agents removed from public
property, the Respondent violated Section 8(a)(1) of the Act.
Subparagraph 8(d) alleges that, in early October, Young threatened employees with
discharge, informed employees that it would be futile to select the Union as their collective
bargaining representative, disparaged union supporters, and informed them that they could not
work with prounion employees.
The foregoing allegation is predicated upon remarks made by Young at a meeting with
25 to 30 employees at the Remington warehouse on October 9. Employee Carlos Shipp
recalled that Young was upset because she had learned of union activity at the Remington
warehouse and noted that she had helped many of them through the “second chance program.”
She stated that she did not want Operations Manager Roy Ewing to send employees to work at
the HP account at Holmes Road because “they were so corrupt over there.” She said that, if
there were a strike, employees “would be replaced by temps and a lot of you all will lose you
all’s jobs.” She then referred to negotiations, pointing out that the Union would propose a
contract, that if the Company stated they “can’t do that,” the Union would have to rewrite it, and
“they’ll be doing that for the next 10 years before they get a contract.”
Employee Joe Taylor corroborated Shipp in part, recalling that Young commented upon
learning of union activity at the Remington warehouse and referring to the second chance
program. He did not mention not sending employees to work at the HP account or to strikes and
hiring temporary employees. He did recall Young stating, “We could come in one morning and
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not have a job.” Regarding a contract, he recalled Young stating that “it could be three, six, 10
years. May not get a contract.” Taylor specifically denied that Young acknowledged that the
bargaining process could “go quickly.”
The Respondent presented employee Leslie Almo, a customer service representative at
Remington, who denied that Young made any comments regarding not sending employees to
work at the HP account. She recalled that Young did mention strikes and hiring temporary
employees. Almo also recalled that Young addressed bargaining, stating that “the Union can’t
guarantee us anything, and she picked up a piece of paper and told us this is how it would go.
They [the Union] would write down what they want and [the Company would] look at it like,
[‘N]o.[‘] And then they were, [‘N]o.[‘] it goes back and forth. … [S]he said it would take years.”
Young denied making any comment regarding the HP account. She admitted, in
response to an employee’s question, addressing strikes, stating that, “[i]n a economical [sic]
strike then, yes, OHL did have some leeway in saying whether or not they can come back.”
Young admitted addressing bargaining, stating that the law required that the company bargain
in good faith and “as long as they bargain in good faith, then they've satisfied the law. … You
may get one [a contract] in a year; you may get one after 10 years.” Young did not deny stating
that the Union would make a proposal and the Company would say they “can’t do that,” as
Shipp testified, or “no,” as Almo testified.
Young gave no explanation of her admitted comment that, in the event of an economic
strike, the Respondent would “have some leeway in saying whether or not they [the employees]
can come back.” The absence of an explanation confirmed, as Shipp credibly testified, that
strikers would be replaced by temporary employees and a lot of the striking employees would
“lose you all’s jobs.” “Employers cannot tell employees without explanation that they would lose
their jobs as a consequence of a strike or permanent replacement.” Baddour, Inc., 303 NLRB
275 (1991). Young gave no explanation of the “leeway” that the Respondent had in whether
striking employees could return. By threatening employees with loss of their jobs if they
participated in an economic strike, the Respondent violated Section 8(a)(1) of the Act.
Section 8(d) of the Act imposes the “mutual obligation” of the parties to “confer in good
faith.” Giving an example in which only the Union is making proposals which the employer is
continuously rejecting misrepresents the bargaining process. Coupling that scenario with a
reference to 10 years, as Young admitted, threatened that the employees’ organizational effort
was futile. Ring Can Corp., 303 NLRB 353, 358 (1991). I do not credit Young’s claim that she
referred to “a year.” Shipp, Taylor, and Almo all agree that Young referred to “years,” and Shipp
and Taylor specifically recall 10 years being stated. The Respondent, by threatening that it
would be futile for employees to select the Union as their collective bargaining representative,
violated Section 8(a)(1) of the Act.
No witness corroborated Shipp’s testimony regarding not sending employees to work on
the HP account because the HP employees were “so corrupt.” I do not credit that portion of his
testimony and shall recommend that those aspects of the allegation be dismissed.
3. Remaining Section 8(a)(1) allegations
I shall deal with paragraph 9 of the complaint in my discussion of the discharge of
Charles Tate.
Paragraph 10 of the complaint alleges interference with leafleting at the Remington
warehouse on September 18. On that date, International Organizer Brandon, accompanied by
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former employee Jerry Smith and a group of employees whose workday had ended early:
Carolyn Jones, Athena Cartwright, Undenise Martin, and James Bailey, went to the Remington
warehouse on Global Drive to leaflet. A fence, with a gate that bears a no trespassing sign,
surrounds the facility. Photographs received into evidence show that the gate is approximately
thirty feet from Global Drive. A wide concrete driveway that can easily accommodate two lanes
of vehicles provides access to the gate and a large paved area at the docks used by trucks for
deliveries to and from the warehouse. Immediately inside the gate, to the right, is a one lane
driveway to the employee parking lot. Brandon and Jerry Smith stationed themselves at the
curb, the public right of way. The employees went onto company property outside the fence and
gate. Jones went to the area immediately outside the gate on the right, outside the fence but
near the no trespassing sign.
Soon after Jones did so, Operations Supervisor Greg Bradsher approached her stating,
"You’re going to have to leave OHL premises immediately. You’re not allowed to be on OHL
premises." Jones stated that she was an OHL employee and had the right to handbill “my
coworkers.” Bradsher asked whether she could handbill “on the street … where you had been"
on previous occasions. The employees continued to handbill and Bradsher walked back
towards the main entrance to the warehouse.
Bradsher claimed that when he observed Jones she was inside the fence, next to the
one lane driveway leading to the employee parking lot. He admits telling her that she would
have to move to the curb of Global Drive. Jones protested that she was an employee. Bradsher
recalls that he then requested Jones to get out of the driveway so as not to get hit or cause an
accident and that Jones did so.
International Organizer Brandon confirmed that Jones was outside the fence. When
Bradsher spoke with Jones, she called to Brandon reporting that she had been told they could
not handbill there. Brandon called to Bradsher stating that they were OHL employees and had
the “right to handbill there to their coworkers." Bradsher replied that he did not care, he wanted
them “off the property." Brandon replied that they were not leaving, they were OHL employees
and “they got a right to handbill." Bradsher did not deny the foregoing interaction with Brandon.
When Operations Supervisor Bradsher returned to the warehouse he met Area Manager
Kelvin Davis coming out of the warehouse. Davis began walking towards Jones.
Area Manager Davis, approached Jones stating, "You all going to have to leave the
premises right now." Whether he mentioned calling law enforcement officers is immaterial
insofar as there is no allegation in that regard. Davis then stated, "You’re on company property
and you’re not allowed." Jones stated that she was an employee. Davis noted that she did not
have a badge. Jones either retrieved her employee badge from her vehicle or had one of the
other employees who were leafleting retrieve it. She showed it to Davis who stated, "Well,
you’re going to have go to the street where you were … you’re not allowed to do this on
[company] property." Jones continued to leaflet.
Bradsher recalled that Davis told Jones that she “needed to move out of the drive, that
she needed to move back behind the gate or outside the gate.”
International Organizer Brandon overheard the conversation between Davis and Jones.
When Davis approached Jones, he stated, "We want you guys off our property. You can’t do
that stuff here. You’re trespassing." He called out to Davis, "These guys, they work there." Davis
answered, " I don’t care. I want them off my property. Can’t do that here." Brandon replied,
"Well, they got a legal right to do it."
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Area Manager Davis testified to making only two statements, one to Jones and the other
to Brandon and the other employees. He claims that he approached Jones and asked if she
could “kindly just step back … A lot of cars make their turn because I don’t want anybody to get
hurt.” He acknowledged that the employees and a gentleman, Brandon, called out that Jones
was an employee and allowed to be there. Davis claims that he replied that he was not asking
her to leave. “I’m just asking her not to impede the traffic flow. I don’t want anybody to get hurt
on the property.”
Jones acknowledged that occupants of vehicles who took the literature being passed out
would stop to receive the literature, explaining on cross examination that she did not stop the
vehicles, that they would “only stop if they wanted to stop.” She denied that either Bradsher or
Davis said anything about blocking traffic, being injured, or causing an accident.
The Respondent, in its brief, argues that Davis did not tell the other employees to leave.
Contrary to that argument, Davis, as Jones recalled, stated, “You all going to have to leave the
premises,” and, as Brandon recalled, said, "We want you guys off our property.
I credit Jones and Brandon. Bradsher claimed that Davis directed Jones “to move back
behind the gate or outside the gate,” but Jones was already outside the gate. On cross
examination, Davis acknowledged that Jones was not standing in front of vehicles thereby
blocking them. He stated that Jones “was forcefully standing there handing out fliers. And she
was slowing them down. There were cars that were backing up.” Insofar as that is how he
assessed the situation, I find it incredible that he would have simply asked Jones to “step back,”
the only direction to her that he claims to have given. Cars were backing up because employees
were taking the union fliers being distributed and had to slow down to obtain the literature. The
Respondent did not want that to occur and directed the employees distributing that literature to
get off of Company property.
Employees may engage in lawful solicitation and distribution at other facilities of their
employer. ITT Industries, Inc., 341 NLRB 937 (2004), enfd. 413 F.3d 64 (D.C. Cir 2005). Davis
directed employees to cease engaging in that protected activity when he stated, “[Y]ou’re not
allowed to do this on [company] property," after Jones had identified herself as an OHL
employee. By doing so, the Respondent interfered with the employees’ right to distribute
literature to their fellow employees in nonworking areas on nonworking time in violation of
Section 8(a)(1) of the Act.
Paragraph 11 of the complaint alleges interference with the distribution of literature at
the Remington warehouse on September 25 and interrogation of employees about their union
activities. On that date, employees Carolyn Jones and Kamisha Watson went to the Remington
warehouse. They went through the gate onto the parking area in front of the warehouse. When
they observed employees coming out of the warehouse for their afternoon break, Watson went
to the employees coming out near the loading dock. Jones approached the employees who had
come outside the main entrance and were sitting on a bench near the entrance. As Jones
approached them, a security guard came out of the building and told her that she was “going to
have to leave the premises." Jones responded that she had a right to be there. The security
guard said that he was “just doing what they told me to do" and went back inside. Jones began
talking to her coworkers about the Union. Operations Manager Roy Ewing, who knew that Jones
was an employee, came out and told her, “You know you can’t be out here doing this stuff."
Jones, replied that she was trying to get her coworkers signed up and was “not doing anything
wrong,” that "Federal law gives me that right to do that." Ewing stated "Well, you don’t work over
here at Remington." Jones replied that she did work for OHL. Ewing stated, "Yeah, but you don’t
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work in this building, so you going to have to leave the premises." Jones said, "Okay."
Employee David Freeman was in the group of employees to whom Jones was speaking.
He corroborated Jones’ testimony that Ewing told her that she “can’t be doing it [soliciting] on
the property.” Jones replied that she was an employee and that she could solicit as “long as it
[was] on our break.” His incorrect recollection that another lady was present when Ewing spoke
to Jones does not detract from his credible recollection of what Ewing said to Jones. Although
Watson was not present at the time of the conversation, she was present on the premises.
Operations Manager Ewing claims that, when he went to find out what was occurring,
Jones stated to him that she was “trying to get into the building.” He called her aside. According
to Ewing, Jones asked whether he was “going to let me in the building.” He asked her to calm
down, that he wanted to ask her a few questions. Jones asked for his name, to which Ewing
replied that she knew his name. She then made a call on her cellular telephone and walked off,
meeting another woman, Watson, and leaving the area.
Jones denies making any statement relative to getting into the building. She noted that
Ewing asked her to come to his office. She refused, saying, "No, let’s just stay on the outside."
I credit Jones. Jones was aware of the OHL solicitation policy as set out in the letter she
had received on August 11. Employee Freeman heard Jones arguing that she had the right to
solicit during the employees’ break. Ewing’s defensive demeanor was unimpressive. In an email
he prepared after the events of August, he states that he “wanted to speak to Ms. Jones in
private to see if there was a concern regarding Officer Shipp’s behavior and his actions,” a
concern that he never claims communicating to Jones. Ewing admitted that he observed
literature and the group of employees to whom Jones was speaking and that he knew “some
solicitation [was] going on because of what I saw.”
When break was over and the employees had returned to inside the facility, Ewing
waved for them to come together. Employee David Freeman recalls that Ewing questioned the
employees, asking, “What did they say? What is [sic] the pamphlets about?" Freeman recalls
answering, "They didn’t say nothing." Jeovunte Gant confirms that Ewing asked what “the young
ladies [were] talking about?" He recalls replying that they “were giving us some union literature."
Ewing asked, “Well, did you guys accept any of the literature? Do you understand what they’re
talking about?"
Ewing denied asking the employees what Jones and Watson had talked about or
mentioning union literature. He recalled stating that he did not know “what happened out front,”
but there was “a lot of commotion,” and that he wanted to “make sure did anyone have any
concerns.” He claims that Jeovunte Gant, stated that “we don’t want her here. We don’t
understand why she was here.” No one else said anything and the employees returned to work.
I credit Freeman and Gant. Ewing had interrupted what he understood was Jones’
solicitation of the Remington employees to whom she had been speaking. Ewing claimed that
he “didn’t know if she was violating company policy by handing out any types of literature.” He
denied asking for any literature that had been distributed, but did not specifically deny asking
what the literature was about.
Employees have the right to engage in lawful solicitation and distribution at other
facilities of their employer. Ewing’s informing Jones that she could not be “doing this stuff” at the
Remington facility, that she did not work “at Remington” and would have to “leave the
premises," unlawfully restricted her right to engage in lawful solicitation and distribution.
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Ewing thereafter interrogated the employees with whom Jones had been speaking.
Ewing knew “some solicitation [was] going on because of what I saw.” He sought to learn what
had been said, whether the employees had accepted any literature, and if they understood what
they had been told. There is no evidence that Ewing was aware of the union sympathies of the
employees he was addressing. Ewing’s attempt to learn what the employees had been told,
whether they understood, and whether they had accepted literature following the solicitation of
Jones was a coercive inquiry regarding their union activities.
The Respondent, by prohibiting employees from engaging in lawful solicitation and
distribution at a location of the Company at which they did not work and coercively interrogating
employees regarding their union activities, violated Section 8(a)(1) of the Act.
Paragraph 12 of the complaint alleges an early October interrogation of an employee by
Operations Supervisor Alfreda Owens. Employee Jennifer Smith recalled that Owens
approached her in a one-on-one conversation as she was distributing a handout prepared by
the Company. She commented upon “stress” resulting from the organizational effort of the
Union and then asked how Smith felt. Smith did not respond and Owens stated that she did not
want to know how she felt. Owens denied having any one-on-one conversation with Smith due
to previous misunderstanding that had occurred between them. Whether I credit that denial is
irrelevant. Owens was aware of Smith’s support of the Union as established by an email she
sent to Human Resource Manager Young on July 30. Young believed that Owens was aware of
her support for the Union. Owens’ immediate retraction of her question precludes any finding of
coercion. I shall recommend that this allegation be dismissed.
Paragraph 13 of the complaint alleges interrogation of an employee by Operations
Supervisor William Pope on October 7. Employee Andrew Wardlow recalled that he saw that
employee Malcolm Boyd in the HP account needed assistance and went to help. Operations
Supervisor Pope approached, pointed to the “Union Yes” button that Wardlow was wearing, and
stated that was “why people don’t have jobs, … because of you and this button.” Pope asked
why Wardlow would want to join a union. Wardlow replied, “[B]enefits and job security.” Pope
did not deny observing the “Union Yes” button, and admitted asking Wardlow, “What can Union
do for you?” Pope was not Wardlow’s supervisor. The foregoing noncoercive exchange
occurred on the warehouse floor. I shall recommend that this allegation be dismissed.
Paragraph 14 of the complaint alleges an implied threat of unspecified reprisals by
Senior Vice President Randall Coleman. On October 17, after work, employee Andrew
Wardlow, who works in the Waterpik account, went to the breakroom used by employees who
work in the HP account and placed some union literature on the break tables. As he came
downstairs from the breakroom, he encountered Senior Vice President Coleman who asked
whether he knew what soliciting was. Wardlow initially testified that Coleman told him that that
he could get in trouble for soliciting, but on cross examination agreed that Coleman said
“soliciting during working time.”
Coleman acknowledges that he had a conversation in which he asked whether Wardlow
was aware of the Company’s no solicitation policy. When Wardlow stated that he did not know
“what it is,” Coleman suggested he speak with Van Young regarding the policy. Wardlow admits
that Coleman told him that he could talk with Van Young. I credit Coleman. Even if I were to
credit Wardlow rather that Coleman, his admission on cross examination that he was asked
whether he knew he could get in trouble for “soliciting during working time,” negates any
unlawful threat. I shall recommend that the foregoing allegation be dismissed.
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Paragraph 15 of the complaint alleges interrogation and a threat of unspecified reprisal
by Area Manger Linda Sones. On October 22, employee Anita Wells was approached by Sones
who asked whether Wells was going to eat fried fish that day. Prior to October 22, employees
who supported the union announced on a flier an open house fish fry, sponsored by the “in plant
organizing committee,” at the Steelworkers union hall. The flier listed the names of the members
of the sponsoring committee, including Anita Wells. Wells answered that she was not going to
eat fried fish, but that she did eat fish. Well recalls that the conversation continued, with Sones
asking about her fiancé, a former employee working at another company. Wells replied that he
was fine. Sones commented that it was “a good thing you guys don’t work for the same job any
more.” Wells said, “Really.” Sones stated, “Yeah, both you all working here, anything could
happen.” Sones admitted having seen the flier, asking about the fish fry, and inquiring about
Wells fiancé. She did not deny the remark about it being a good thing that they were not both
working the same job. The Union was not mentioned.
The General Counsel argues that inquiring whether Wells, named as a sponsor of the
fish fry, was going to eat fried fish that evening constituted a coercive interrogation. I find no
coercion in a casual exchange that referred to the fish fry that the employee was hosting. Sones
comment regarding the same employer reflects her belief that not having both parties to a
relationship dependent upon the same source of income was a “good thing.” The “anything
could happen” comment following the recognition that Wells and her fiancé worked for different
employers threatened nothing. I shall recommend that this allegation be dismissed.
C. The Section 8(a)(3) Allegations
The complaint alleges the unlawful discharge of employee Charles Tate, the unlawful
warning and discharge of employee Renal Dotson, the unlawful warning and suspension of
employee Carolyn Jones, and the unlawful discharge of employee Jerry Smith. As hereinafter
discussed, there is an issue regarding the Respondent’s knowledge of the Union activity of Tate
and the date that the Respondent became aware of the Union activity of Dotson.
The Respondent was fully aware of the union activity of Dotson, Jones, and Smith as of
mid-August. In a weekly report for the week ending August 17, Van Young refers to having
spoken with Andrew Tidwell, Employee Relations Manager Laura Reed’s superior, regarding
“presumed union activity in the Fiskars and Nat Geo accounts.” Young reported that Jones and
Smith “are presumed the chairs of this drive.” An email dated August 27 reports that Dotson “is
working hand in hand with the crew that is trying to drive a union into OHL Memphis.”
By midafternoon on August 28, none of the three were working. On August 28, Dotson
and Smith were discharged and Jones was suspended for five days. With regard to the events
of August 28, under the analytical framework of Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), there is no issue that Dotson, Jones, and Smith had engaged in and
were engaging in union activity and that the Respondent was fully aware of that activity. The
statements and conduct that I have found violated Section 8(a)(1) of the Act establish the
Respondent’s animus towards that activity and employees who were engaging in that activity.
The reference in Young’s email regarding Dotson working “hand in hand with the crew that is
trying to drive a union into OHL,” a crew that included Jones and Smith, establishes a
motivational link or nexus between the Respondent’s animus and the adverse employment
actions taken against Dotson, Jones, and Smith. I find that the General Counsel has carried the
burden of proving that union activity was a substantial and motivating factor in Respondent’s
actions against these employees on August 28. Manno Electric, 321 NLRB 278 (1996).
1. Charles Tate
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a. Facts
Tate began working for the Company on March 3. He worked in the Waterpik account.
His employment ended on June 2. It was Tate who contacted the Union. Tate thereafter began
speaking with his fellow employees regarding how having a union “would benefit them” and
passing out union literature. Tate did this during break periods and after work in the parking lot.
Tate recalled one occasion upon which his supervisor, Willlie Dye, observed him when
he drove by with the window of his vehicle down, and an occasion upon which Area Manager
Phil Smith observed him. Tate provided no description of the circumstances regarding Smith
observing him. Smith denied having done so. Dye denies ever observing Tate passing anything
out. Tate did not claim that either Dye or Smith were aware of what he was passing out.
As already discussed, union meetings were initially announced by party invitations that
Carolyn Jones prepared. Tate confirmed that the party invitations were used “to cover up the
fact” that the employees were discussing unionization.
On June 1, Tate recalled that, at the end of the workday, he “was entering his
[Operations Supervisor Dye’s] office.” He did not specify why he did so. He recalled that Dye
had one of the “party invites” in his hand. Tate testified that Dye stated, “Charles, me and you’re
cool. But you know a Union can’t get in here in a recession. If I was you, I would put an end to
it.” Tate says he replied that he “didn’t know what he [Dye] was talking about.”
Dye denied the foregoing conversation. Dye stated that he became aware of the union
organizational effort more than a month after Tate ceased working for OHL. He denied having
any conversation with Tate relating to unions. He specifically denied making a comment
regarding a union being unable to get in during a recession.
Tate did not state how he identified the “party invite”. Tate does not claim that Dye
questioned him about that document which made no reference to the Union. Carolyn Jones,
who prepared the party invitations, testified that the first union meeting was on June 18. Insofar
as the prounion employees were being circumspect regarding their activities, I find it unlikely
that that they were issuing party invitations more than two weeks before the first union meeting.
No invitation was offered into evidence. I credit Dye’s denial of the conversation in which Dye
purportedly informed Tate that a union could not get into the Company “in a recession,” and
that, “If I was you, I would put an end to it.”
In order to prevent theft or otherwise compromise the services it provides to customers,
the Company assures that all employees, when they enter and exit from their work areas, pass
through a metal detector, which is monitored by a security guard.
On June 2, as Tate passed through the metal detector following his lunch break, the
detector “beeped.” Tate backed up and tried to enter a second time but the detector beeped
again. Tate patted his pockets and realized that he had put his cellular telephone in his pocket.
Employees may not bring cell phones onto the warehouse floor. The security guard asked him
to go back through again, but Tate refused, saying that he had to put his cell phone up. He ran
upstairs to the breakroom to do so. The security guard followed and asked his name, to which
Tate replied, “Charles Tate.” The security guard asked him where his badge was. Tate replied
that he had a badge, “a temporary badge,” that he had lost his real badge and that they were
“making me another one.” The security guard stated to Tate that he was “in trouble.” Tate
secured his cellular telephone in his locker and then went through the metal detector without
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incident. The security guard made no comment when he did so.
After Tate had been working for about 10 minutes, Operations Supervisor Dye called a
meeting of the employees working in Waterpik. He told the employees that they “needed to
obey the security guard,” not to mess with him because “[h]e’s with upper management.” Dye
then directed Tate to come into his office. Tate did so. In the office, Tate claims that Dye told
him, “Let me have your badge.” Tate asked, “For what?” Dye answered, “I told you, you can’t
mess with upper management. Ain’t nothing I can do about it. … I’m fixing to walk you out.”
Employee Helen Herron approached Dye as he and Tate left the office. She overheard
Dye ask Tate for his badge. Tate threw his badge on the floor. Although Herron did not testify to
any conversation with Dye, Tate confirmed that Dye “was talking to Helen [Herron].” As Dye was
speaking to Herron, Tate felt he was “up there looking like a fool.” He stated to Dye, “Hell with it,
I’m fixing to go.” As he walked off, Tate acknowledged that he “pushed a garbage can” into the
wall. Dye asked what was wrong with him, that he knew he could not “push the garbage can.”
Tate recalls replying, “Man you done fired me anyway, it don’t matter.”
Employee Andrew Wardlow observed Dye and Tate together in the office. Although
initially testifying that Dye was holding Tate’s badge, he acknowledged that he could not see
what Dye was holding. As Dye and Tate left the office, Wardlow recalled that Tate stated to him,
“The fucker just fired me.”
Dye recalled that, on June 2 as he was returning from lunch, the security guard, Randy
Knott, informed him that there had been a problem with Tate not following his instructions. He
explained that, after Tate had set off the metal detector alarm, he refused to make another
attempt to pass through the detector and left. As Tate left, he did not respond to Knott’s
instruction to return. Dye stated that he would find Tate and bring him back to the security
entrance and “we’ll see what is going on.” Upon locating Tate, Dye asked him what was going
on, explaining that the security guard told him that Tate had refused to go back through the
metal detector. Tate replied, “I ain’t studdin’ it,” a slang expression meaning that he was not
worried about that. Dye called the employees he supervised together and held a short meeting
in which he stated to the employees, as he had on previous occasions, that they must adhere to
safety and security policies. He then informed Tate that they “needed to go up here and find out
what’s going on,” and that he needed to write all this down. Dye went into his office to get paper
and pencil. As he was doing so, he heard Tate state, “I ain’t studdin’ this mother fucking
company.” Tate continued what Dye described as a rant, pushing a garbage can and throwing a
clipboard with papers on it. Tate continued, stating “Fuck this job, I don’t need this job. I’m fired
anyway. I quit. You all gong to fire me anyway.”
Dye sought to calm Tate down, telling him that he knew he could not do “this here,” and
stating, “Let’s go on up here with Randy [Knott],” the security guard whose instruction Tate had
not followed. Tate continued to use profanity. Dye asked Tate whether he was quitting, and Tate
answered, “Yeah, fuck OHL. Yeah, I quit.”
Tate admitted that he was never told that he was terminated or fired, that Dye only told
him that he was going to walk him out.
At the Company, discharges are handled by Human Resources. Dye credibly testified
that he does not have the authority, on his own, to fire an employee. The record does not
establish whether Tate, a relatively new employee, was aware of that fact.
Carolyn Jones overheard her supervisor, Barbara Oyugi, speaking on the telephone and
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thereafter telling two employees that Tate was fired for “trying to bring a cell phone on the floor
and he cursed security out.”
Tate received a separation notice stating, “Resigned-no notice,” in the mail. He did not
call the Company to dispute the notice. Counsel for the General Counsel presented documents
reflecting that Tate was granted unemployment compensation. Tate acknowledged that he was
aware that the appeal of the Company was late; therefore, he never testified.
b. Analysis and concluding findings
The Respondent argues that it had no knowledge of Tate’s union activity and that he
quit. The General Counsel argues that the Respondent did have knowledge of Tate’s union
activity and that it discharged him, citing Operations Supervisor Oyugi’s comments that were
overheard by Carolyn Jones. The information Oyugi received, that Tate had tried to bring a cell
phone onto the floor and that he had cursed security, was inaccurate. As hereinafter discussed,
the information that Tate was fired was also inaccurate.
In assessing the evidence under the analytical framework of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the mutually corroborative testimony of Jones
and Tate establish that Tate did engage in union activity. The Section 8(a)(1) violations found
herein establish that the Respondent bore animus towards union activity and employees who
engaged in that activity. I do not, however, find that the Respondent was aware of Tate’s
involvement in union activity. I further find that Tate quit because he believed, erroneously, that
he had been fired.
Although Tate testified that he was observed by supervisor Dye and Area Manager
Smith distributing union literature in the parking lot, both deny having done so. Even if they had
observed Tate distributing something, there is no evidence that Dye or Smith was aware of what
Tate was distributing. In view of the vigilance of the Respondent’s supervisors with regard to
union organizational activity, vigilance confirmed by Manager Young’s interrogating employee
Undenise Martin, emails describing conversations reported by employees, and memoranda
reflecting observations made by management, I am satisfied that the presence of union
literature in the parking lot would have been noted if it had come to management’s attention. I
credit Dye and Smith’s denials that they ever observed Tate handing out anything.
The testimony regarding what occurred after Dye was informed of a problem regarding
Tate by the security guard is conflicting and inconsistent. Tate recalls that, in the office, Dye
asked for his badge and said he was “fixing to walk you out.” Dye denied calling Tate into the
office but recalled telling Tate that they “needed to go up here and find out what’s going on.” In
context, “up here” was a reference to the location of the detector and security guard.
I find that Dye was mistaken regarding whether he called Tate into his office. The
mutually corroborative testimony of Tate, Herron, and Wardlow confirm that Tate and Dye were
both were in the office for a brief period of time. Contrary to the testimony of Tate, Dye did not
ask for his badge. If he had done so, Tate would have given it to him and would, therefore, have
not had the badge outside of the office when Herron observed him throw it onto the floor.
I credit Dye’s testimony that he told Tate that they “needed to go up here and find out
what’s going on.” Tate, having been informed by the security guard that he was “in trouble,” was
distraught and assumed the worst. Dye had no authority to discharge employees. Although Tate
may have interpreted Dye’s statement that they “needed to go up here and find out what’s going
on” to have meant that Dye was “fixing to walk … [him] out,” Dye did not say that.
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Tate testified that, as they were leaving the office, they stopped and Dye engaged in
conversation with Herron. Tate says that he felt that he was “up there looking like a fool,” and
that he stated to Dye, “Hell with it, I’m fixing to go.” Dye heard Tate loudly stating “Fuck this job,
I don’t need this job. I’m fired anyway. I quit. You all going to fire me anyway.”
“Fixing” was a word used by Tate, not Dye. Employee Wardlow’s testimony that Tate
told him that the “fucker just fired me” suggests that Dye’s version of what Tate said is more
accurate. Whether Tate told Dye that he was “fixing to go,” or, as Dye recalls, stated, “I’m fired
anyway. I quit. You all going to fire me anyway” is immaterial. Regardless of the exact words
used, in that situation Dye would certainly have asked Tate for his badge. Tate had, by that
point, lost control as confirmed by his throwing his badge onto the floor and pushing a garbage
can into the wall.
Tate acknowledged that he received paperwork from the Company stating that he had
resigned but did not contact the Company to protest that the paperwork was inaccurate, that he
had been fired. Tate, being distraught following his encounter with the security guard, thought
that he was going to be fired. He admitted that he was never told that he was terminated or
fired. Tate, believing that he was going to be fired, quit.
Even if, contrary to the foregoing analysis and discussion, I were to have found that Tate
was discharged, I would further find that the General Counsel failed to establish that the
Respondent had knowledge of his union activity and would, therefore, recommend that the
discharge allegation be dismissed.
Paragraph 9 of the complaint alleges a threat of discharge by Operations Supervisor
Dye on June 1. As discussed above, I have credited Dye’s denial of that conversation. I shall
recommend that paragraph 9 of the complaint be dismissed. I shall also recommend that the
allegation in subparagraph 16(a) of the complaint, that the Respondent discharged Tate
because of his union activity, be dismissed.
2. Renal Dotson
a. Facts
Dotson, who began working for the Company as a temporary employee referred by Staff
Mart, was hired in March. Dotson worked in the Fiskars account as a “reach truck” driver. A
reach truck is similar to a fork lift except the driver stands when operating the vehicle. Dotson
performed putaways, placing products that had been delivered into their appropriate locations,
and replenishments, bringing products from their stored locations to employees who packed the
product for shipment to the customer. The supervisor of the Fiskars account is Barbara Oyugi.
She is overseen by Operations Manger Jim Windisch who reports to Area Manager Phil Smith.
Dotson was “recruited” into the organizational effort of the Union by Carolyn Jones.
Thereafter he spoke with employees and distributed prounion literature. When on the job, he
kept prounion literature in a blue folder that he placed in a pocket on his reach truck. On July 30,
Dotson briefly left his reach truck. He observed Operations Manager Jim Windisch at his truck.
He approached, asking what he was doing. Windisch did not respond and left. Dotson then
observed that pieces of his prounion literature were on the floor of the reach truck.
On the morning of July 31, Dotson had been approved to work overtime by his
supervisor, Barbara Oyugi. He reported to work in order to assist in placing special labels on a
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product for shipment to a customer. After doing so for some period of time, the employees were
running out of product. Dotson was told by Brittany Newberry, who was “over special labeling,”
that he “needed to go and get my reach truck” to obtain additional product, a replenishment. He
did so. As he was leaving, employee Tiffany Robertson requested a replenishment for the
product that she was packing. When Dotson returned with the product that Newberry needed,
he prepared to assist Robertson. Newberry asked where he was going, and Dotson responded
that “Ms. Tiffany needed a replenishment.” Newberry told him to “go ahead.” Supervisor Oyugi
confirmed that she had instructed the reach truck drivers that “if a Picker comes and asks them
for replenishing and they’re doing replenishments they are supposed to… replen[ish] for the
Picker.” Newberry confirmed that, if Dotson had not complied with her request that she would
have been idle. She needed the product to continue to work. Dotson was told that the
employees working on special labeling were almost finished, and began performing putaways.
Operations Manager Windisch, who came to work on July 31 at 6:15 a.m., observed
Dotson performing the replenishments. He had no conversation with him. Windisch asked Oyugi
about Dotson working overtime. Oyugi explained that she had him come in to assist in special
labeling. Windisch told her that he had observed Dotson performing replenishments and stated,
“We have to talk to him.” Oyugi was unaware that disciplinary action was to be imposed. She
understood that the meeting was to “talk to him.”
Windisch claims that he informed Oyugi that he had observed Dotson performing
replenishments and “we would issue a corrective action.” I do not credit that testimony.
Windisch initially claimed that Oyugi drafted the corrective action, but then retracted that
testimony. I credit Oyugi and find that she was unaware that Windisch had decided to discipline
Dotson before speaking with him.
On August 4, Dotson was called to Windisch’s office. Oyugi was present but said
nothing. Windisch told Dotson that he had been seen doing replenishments on the morning of
July 31. Dotson explained that they had run “out of product and I had needed to do a
replenishment.” Windisch replied, "No, you supposed to have came in and did special labels
instead of replenishing." Dotson replied that Oyugi had told the employees that if a Picker
needed help that we were supposed to “help them out.” Windisch issued discipline to Dotson,
an Employee Performance Report, referred to as an EPR, the disciplinary document used by
the Company, dated August 2, reflecting that he had been issued a “verbal discussion.”
On August 20, when Dotson arrived at work, he discovered that his reach truck, rather
than being recharged, was sitting in the middle of the receiving floor. He took it to the charger
and began assisting where needed, loading paper for Carolyn Jones and breaking down boxes
in special labeling. At some point in the morning, Windisch came by and asked why he was not
on the reach truck. Dotson explained that the battery was low, that the truck was on the charger.
Windisch asked whether he could use another truck and Dotson replied, "No, not one that I’m
comfortable with driving." Windisch gave no further direction. When the truck was charged,
Dotson begin doing putaways and replenishments. Windisch claims that he directed Dotson to
get another reach truck, but that Dotson walked away saying, "Do not go there with me," and
that later, when directed by Windisch to perform putaways instead of replenishments, stated
that he wanted leadman Puckett “to tell me.”
Windisch and Young claim that they issued an EPR, a final warning, to Dotson on
August 20 for ignoring Windisch’s order to obtain a different reach truck saying, "Do not go there
with me," and stating that he wanted leadman Puckett “to tell me” to perform putaways. Dotson
denied the foregoing comments as well as receipt of a final warning.
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I credit the testimony of Dotson. On August 26, less than a week after Dotson had been
purportedly issued a final warning, he met with Area Manager Smith and Windisch. Smith
prepared a memorandum summarizing the meeting that states that Windisch requested that
Smith meet with him and Dotson relating to Dotson’s engaging in conversation with another
employee during a preshift meeting. The memorandum states that Windisch reported to Smith
that Dotson had been “given a written warning” by him and Operations Supervisor Oyugi for
“similar conduct in the recent past.” There is no evidence of any such warning. The EPR dated
August 2 related to his performing replenishments and was a verbal counseling. Smith’s
memorandum makes no mention of a final warning issued to Dotson on August 20.
On August 27, Van Young sent a email to Laura Reed relating to Dotson which attaches
an email sent to Young by Windisch on August 26. Windisch’s email states that he is attaching
documentation relating to the discussion that he and Smith had with Dotson on August 26. It
states, “I will do an EPR tomorrow as I do not have a copy at this time to type in.” Young
describes Dotson as a “real disruptive individual that is working hand in hand with the crew that
is trying to drive a union into OHL Memphis.” There is no mention that this “disruptive individual”
was issued a final warning on August 20.
On August 26, Windisch called Dotson into a meeting with himself and Area Manager
Smith in Windisch’s office in Fiskars, the meeting to which Area Manager Smith’s memorandum
referred. Windisch claimed that the purpose of this meeting was to counsel Dotson regarding
disrupting preshift meetings because Dotson had, that morning, engaged in conversation with
Carolyn Jones during the preshift meeting. I do not credit the testimony of Windisch. No witness
corroborated Windisch regarding a conversation or disruption, and Jones was not counseled.
Dotson, who did not know why he was being called to a meeting, brought his work folder
with him. When asked why he brought it, he expressed concern that rules were being changed.
Although Dotson cited no example to Smith and Windisch, I note that the protocol regarding
passing through the metal detector changed between May and August. All participants in the
meeting agree that Dotson asked whether OHL had any discount arrangements with national
hotels or car rental companies. He was informed that the Company did not.
Area Manager Smith testified that he counseled Dotson regarding the importance of
preshift meetings. Dotson recalls no such comments but does recall that Smith questioned him
regarding why he was here at the Company, “Why am I working at this Company. Why don’t I …
find another job somewhere? Dotson asked what was going on, and Smith repeated himself
asking why he was working for this Company and asking, “Why don’t you go down Holmes
Road somewhere and find a new job?" Dotson replied that he was there because "I need to
make money.” He asked, “[W]hy you all coming at me like this?" Dotson recalled no response to
that question.
Windisch confirmed that Smith asked Dotson whether he “want[ed] to work for OHL?"
Dotson said, "Hey, I just want to go out and do my job. That’s all I want to do."
Smith admitting reciting to Dotson an analogy relating to an uncomfortable mattress,
explaining that if you hurt every morning you would get a new one, and applying that analogy to
an employee’s job, stating “if you’re not happy with your job or your mattress, you need to look
into getting a new one.” Smith’s notes of the meeting do not reflect any comments in that
regard. Whether Smith gave the foregoing analogy or not, I credit Dotson and find that Smith
also asked, “Why don’t you go down Holmes Road somewhere and find a new job?"
After being permitted to leave, Dotson returned to the task he had been performing,
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putaways. A Picker asked for a replenishment, but Dotson refused, stating that he could not
help because he didn’t “want to get another write-up.” As noted, Operations Supervisor Oyugi
had told the reach truck drivers that if “they’re doing replenishments they are supposed to…
replen[ish] for the Picker.” Dotson was performing putaways. Windisch overheard Dotson and
directed him to “go to see Van Young." He did so. He and Young discussed a transfer “from
Fiskars account to Public’s.” Young mentioned that Dotson “was going to be transferred within
the next two weeks.” Windisch arrived and stated that he wanted Dotson to be disciplined
because he “wouldn’t do what the Pickers wanted.” Young asked Dotson what work he had
been performing. Dotson relied “putaways.” Young told him to go back downstairs to work, and
he did so. Young did not deny the foregoing conversation.
Dotson was concerned regarding what had occurred on August 26. That evening he
called the “Alertline,” which he referred to as the “hotline,” a toll free number employees could
call to express job concerns. He expressed his concern that he had a “get-down-Holmes-Road
meeting with Phil [Smith] and Jim [Windisch].” Dotson did not work the following day. He
received a call from an unidentified employee that something was going to happen on the job.
Dotson called the Alertline again and stated the he was “getting set up to get fired.”
On the morning of August 28, Dotson arrived at work on time. Shortly after 8:00 a.m., he
experienced severe intestinal issues that caused him to immediately go to the restroom. When
he returned to the floor, the preshift meeting had already ended. It is undisputed that employees
are not required to obtain permission before excusing themselves to the restroom. It is also
undisputed that Dotson missed the preshift meeting.
Dotson began work. Thereafter, his supervisor, Barbara Oyugi told him that he needed
to report to Van Young’s office. He did so. Young, Area Manager Smith, and Windisch were
present. Dotson recalled that Smith informed him that he had “violated company policy and that
was it.” Smith stated to Dotson that he had been given “a few write-ups” and that he should get
his paperwork and “[g]et down Holmes Road.” Dotson was not given an EPR. The EPR relating
to Dotson missing the meeting on August 28, Respondent’s Exhibit 7, bears no signatures of
any management official. Dotson’s Separation Notice had already been prepared. It states that
Dotson was discharged for “violation of company policy failure to follow mgmt instructions.”
Dotson wrote on the form “for not showing up to a morning meeting.”
Smith recalls that he began the meeting by asking Dotson what had been said that
morning at the preshift meeting and that Dotson admitted that he did not know because he was
not there. Smith claims that he asked why Dotson was not there and that he replied that he had
been told that he was “distraction or disruption … so I just figured I wouldn’t go.”
Van Young recalled only that Smith asked Dotson, “Were you late?" Dotson replied, "No,
I just didn't go." Smith then stated that “based on the numerous counselings and conversations
that we've had with you regarding pre-shift meetings and other things, … we're at a point of
termination." Young was asked whether Dotson offered an explanation for his absence and she
responded that management had told him that he “was [a] distraction.”
Dotson denied stating that he did not attend the meeting because he was a distraction.
The Company maintains an attendance policy pursuant to which employees who are
tardy or absent are assessed points. The policy specifically provides: “Please keep in mind this
policy also applies to overtime (mandatory and voluntary), scheduled meetings and scheduled
training.”
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None of the management officials involved in the discharge of Dotson addressed the
failure of the Respondent to treat his missed preshift meeting as an attendance violation.
Leadman John Puckett received an EPR, a verbal discussion, for failing to attend a
meeting regarding an upcoming Safety and Sanitation audit. When informed of the meeting,
Puckett stated that he would not be attending. The EPR notes that Puckett “must start taking his
of position of Lead more serious[ly].”
b. Analysis and concluding findings
Dotson was named as a “one of the disruptive individual[s]” supporting the
organizational effort of the Union in Young’s email of August 27. Consistent with the testimony
of Dotson, I find that the Respondent learned of his union sympathies on July 30 when
Operation Manager Windisch discovered union literature on his reach truck. The record
establishes the animus of the Respondent towards the Union and employees who engaged in
union activity. The General Counsel established a prima facie case with regard to the discipline
dated August 2, issued to Dotson on August 4, and his discharge on August 28.
The Respondent argues that Dotson, who was assisting in a special labeling project,
improperly performed replenishments. The Respondent contends that Dotson, although
obtaining product for Brittany Newberry so that the employees could continue the special
labeling project, acted improperly by obtaining product for employee Tiffany Robertson because
he had been authorized to work overtime for the special labeling project. It is undisputed that
Dotson had previously been instructed by Operations Supervisor Oyugi that “if a Picker comes
and asks … for replenishing and they’re doing replenishments they are supposed to…
replen[ish] for the Picker.” Dotson performed a replenishment for the special labeling project. He
was asked to perform a replenishment for Robertson. After receiving permission from Newberry,
who was in charge of the special labeling project that was almost finished, he did so.
Windisch conducted no investigation. He did not speak to Newberry, who was in charge
of the special labeling project, or to Dotson. He did not inform Dotson’s supervisor, Barbara
Oyugi that he was going to issue a verbal counseling to Dotson. Supervisor Oyugi though that
the meeting was “to talk to him [Dotson].” “The failure to conduct a meaningful investigation or to
give the employee [who is the subject of the investigation] an opportunity to explain” are clear
indicia of discriminatory intent.” Bantek West, Inc., 344 NLRB 886, 895 (2005), citing K & M
Electronics, 283 NLRB 279, 291 fn. 45 (1987).
The Respondent does not explain how Dotson was expected to distinguish between
obtaining product for the special labeling project and ordinary replenishments and, presumably,
to refuse to replenish Robertson notwithstanding the standing instruction that, if performing
replenishments, he should replenish a Picker when requested to do so. Newberry, who was in
charge of the almost finished special labeling project, gave him permission to replenish
Robertson. The Respondent presented no evidence of any other employee being disciplined for
performing unauthorized work on overtime. The Respondent has not established that the
discipline would have been issued in the absence of Dotson’s union activity. I find that the
verbal counseling prepared prior to meeting with Dotson and issued notwithstanding his
explanation that if a Picker requested replenishment he was supposed to “help them out” was
issued because of his union activity and violated Section 8(a)(3) of the Act.
As discussed above, I find that Dotson was issued no discipline on August 20. Area
Manager Smith’s memorandum reflects that Windisch informed him, incorrectly, that he and
Oyugi had issued a written warning to Dotson relating to preshift meetings rather than a verbal
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counseling regarding replenishments. It mentions no final warning. Smith had not been present
when the purported final warning was issued. He did not refer to any final warning in his
testimony. When asked why he recommended that Dotson be terminated, Smith referred to “an
employee not following the procedures that were set forth in front of him.” Smith did not mention
the issuance of a purported final warning eight days earlier on August 20.
Young’s email of August 27, attaching Windisch’s email of August 26, makes no mention
that Dotson had been issued a final warning. Windisch’s email refers to an EPR that he was
going to prepare. The email implies that the discipline related to the conversation that Windisch
and Smith had with Dotson on August 26, but discipline was not mentioned in that meeting.
Regardless of the reason for the EPR that Windisch was going to write, if Dotson had received a
final warning and committed some further infraction that justified discipline, Windisch would not
have simply been writing another EPR. He would have been consulting with Young and Smith
regarding the level of discipline to be imposed.
I have credited the testimony of Dotson that Area Manager Smith, on August 26, asked,
“Why don’t you go down Holmes Road somewhere and find a new job?" Whether Smith also
recited the mattress analogy is immaterial. Dotson got the message and reported to the Alertline
that he had a “get-down-Holmes-Road meeting with Phil [Smith] and Jim.[Windisch].” An
employer’s suggestion to an employee that the employee could quit, in the context of the
employee’s union activity, violates the Act. Roma Baking Company, 263 NLRB 24, 30 (1982).
The Respondent, by suggesting that Dotson find another job, violated Section 8(a)(1) of the Act.
With regard to the discharge of Dotson, I agree with the argument in the brief of the
Respondent that Dotson’s testimony regarding whether he explained that he was in the
restroom during the preshift meeting is not credible. It also is not relevant. At the point that
Dotson was called to the meeting, his Separation Notice had already been prepared. Dotson
was told that he was being terminated for violation of company policy. Although Smith claims
that he asked Dotson why he missed the meeting and received the response regarding Dotson
not wanting to be a distraction, Young recalled that Smith asked only, “Were you late?"
According to Young, Dotson replied, “I just didn’t go.” I credit the testimony of Dotson that he
was not asked why he had missed the meeting. Smith told Dotson that he had “violated
company policy and that was it.”
Various witnesses testified to having missed preshift meetings for a variety of reasons,
but were not disciplined. Leadman John Puckett received a verbal discussion dated August 2 for
failing to attend a meeting regarding an upcoming Safety and Sanitation audit, not a daily
preshift meeting. Puckett stated that he would not be attending. The EPR notes that Puckett
“must start taking his of position of Lead more serious[ly].”
The Respondent established that preshift meetings were mandatory by placing into
evidence its attendance policy which provides that the policy “also applies to overtime
(mandatory and voluntary), scheduled meetings and scheduled training.” The penalty for
violation of the policy is assessment of attendance points. Neither Young, Smith, nor Windisch
addressed why Dotson was not assessed attendance points pursuant to the policy.
Prior to August 28, there is no evidence that any employee had ever been disciplined,
much less discharged, for missing a preshift meeting. As of August 28, the only discipline that
had been issued to Dotson was a verbal counseling for replenishing. The Respondent has not
established that Dotson would have been disciplined or discharged if he had not been working
“hand in hand with the crew trying to drive a union into OHL.” By discharging Renal Dotson
because of his union activity, the Respondent violated Section 8(a)(3) of the Act.
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3. Carolyn Jones
a. Facts
Jones was hired on August 7, 2007, and was an auditor in the Fiskars account. Her
union activity is undisputed. On August 28, she was issued a verbal counseling for allegedly
refusing to go to the back of the line at the metal detector on August 27. Later that day she was
suspended for 5 days purportedly because of her conduct when being issued that discipline.
As already noted, all employees must pass through a metal detector when entering or
leaving their work area. Although cellular telephones are not permitted on the warehouse floor,
personal items such as keys may be brought onto the floor. These items, which would set off
the detector, are passed through outside of the detector, similar to the protocol at airport
security checkpoints. Area Manager Smith acknowledged that the procedure relating to passing
through the detectors changed in the summer of 2009. In May, after employee Tate set off the
alarm, the security guard directed him to try immediately to pass through. In August, when
employee Carolyn Jones set off the alarm, she was directed to go to the back of the line.
On August 27, as Jones was passing though the metal detector to go on break, the
detector beeped. Operations Manager Jim Windisch, who was present, told Jones to “[g]o to the
back of the line.” She did so, stating that it would just make her break “a little bit longer."
Employee Shelia Hicks recalled an occasion, during the week that Jones was suspended, upon
which Operations Supervisor Windisch requested that Jones go to the back of the line, and that
she did so. The log maintained by the security guard makes no mention of this incident, and no
security incident report was made.
Operations Supervisor Windisch testified that, when the metal detector beeped the first
time, he told Jones to go to the back of the line, that she ignored him and attempted to go
through a second time. The metal detector beeped again and Jones ignored a second
instruction to go to the back of the line. Then, “without saying a single word to me, [she] went
back through the scanner” without setting it off. I find it incomprehensible that Windisch would
not have immediately spoken to Jones if she had disobeyed his twice repeated instructions.
During the morning of August 28, Jones heard that Renal Dotson had been discharged.
Shortly before noon on August 28, Jones was called to the Human Resources office.
Van Young and Windisch were present but said they needed to wait for Area Manager Phil
Smith. Jones’s supervisor, Barbara Oyugi, was not present. Smith arrived. Jones explained that
she needed to get to her “son’s school around 12:00.” Smith stated that this "will only take a few
minutes." He then informed Jones that security had reported that she had not gone “to the back
of the line when I was supposed to.” Jones replied that she had gone to the back of the line and
did not know what security was talking about, that this was “a waste of time and she needed to
be at the school.” Jones requested that the security guard be brought “in here so he can tell me
this in my face.” Windisch interjected that the Company was “not going to bring up the security
guard. We’re not going to do it that way." Smith then stated that security also says that “you’re
always complaining. You always just have something to say every time he tells you something."
Jones stated, "You all called me in here for this? … This just don’t make any sense."
Jones then stated that Windisch was standing right behind her and knew what
happened. Windisch shook his head and said “[N]ope.” Jones asked if he was “going to sit here
and lie in my face and say that I did not go to the back of the line when you know I went to the
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back of the line?" Jones then accused Windisch of being a “habitual liar,” referring to his
agreement sometime in the past to obtain a fan for her work area. Smith pointed out that
Windisch had submitted the request but it had not been approved. The conversation returned to
whether Jones had returned to the back of the line. Windisch repeated that she had not, and
Jones stated, "You know what? You are a lying sack of crap." …I did go to the back of the line.
And I can’t believe you’re sitting here lying in my face."
Area Manager Smith then handed Jones an EPR, a written warning, which had already
been prepared. Jones looked at it. Smith asked whether she was going to sign it, and she
answered, "No, I’m not going to sign it … because this is -- all this is false." She stated that she
did have a comment to “put on there" and then wrote “10 witnesses.” She asked whether she
could “have a copy and leave?" Smith said, "You’re not going anywhere." Jones turned to
Young and said that “this is not procedure. You don’t … normally operate like this[,] … you
would have asked me my side of the story. You would have called me in here first before you all
just ganged up on me like that. It’s just all three of you ganging up on me." Jones stated that
they were “trying to do to me the same thing you did to Dotson[,] … [b]ut it’s not going to work.”
Young made a copy of the EPR and Jones was permitted to leave. Because she had to
return to her work area to obtain her keys, she was too late to make the appointment at her
son’s school. I shall discuss what occurred after Jones retrieved her keys in my discussion of
the discharge of Jerry Smith.
The testimony of Smith, Windisch, and Young regarding the foregoing disciplinary
meeting is similar in most respects to that of Jones.
Although Windisch claimed that he provided Jones with a copy of her discipline at the
beginning of the meeting, Area Manager Smith confirmed that Jones did not receive the EPR
until after the acrimonious discussion, thus she was not aware that the meeting related to
discipline rather than a reminder, similar to the discussion that had occurred on August 11 when
he gave Jones the letter relating to solicitation. Windisch admitted telling Jones that the
Company was “not going to bring up the security guard. We’re not going to do it that way." He
testified that, when he made that statement, there was “a sudden shift in attitude” by Jones.
Smith, Windisch, and Young all claim that Jones, rather than stating that Windisch was a
lying “sack of crap,” stated that he was a "lying white crack,” but stopped herself before uttering
the word “cracker.” Jones denied making that statement, explaining that that she considered the
word “cracker” to be racist, thereby implying that she would not have made such a remark for
that reason. I credit that testimony. The Respondent’s witnesses, at the hearing, agreed that the
word “cracker” was never uttered. Laura Reed, to whom Young reported the foregoing meeting,
did not state what she was told because she did not testify.
Shortly after Jones returned from her lunch break, having been unable to get to her
son’s school, she was called to an office in the Fiskars account area. Area Manager Smith,
Windisch and Young were present. Corporate Employee Relations Manager Laura Reed was
on a speaker telephone. Reed informed Jones that, "Upon doing an investigation and upon
what management just told me, they said that you were being disrespectful." Jones asked, "How
is that." Reed repeated that management said that she was disrespectful and “[s]o we’ve
decided to put you on a five-day suspension." Jones protested, "Ms. Reed, … how is it that you
came up with this decision and you haven’t even gotten my side of the story yet? …
Management just gang up on me. It was all three of them. … It was just me alone and they were
attacking me. … [N]obody asked me my side of the story." Reed replied, "Well, I’m going by
what management said because they are management."
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Jones then asked whether “they” told her that “we were organizing a Union in this
place?" Reed, although having received at least two weekly reports relating to organizational
activity, untruthfully replied, “[N]o.” Jones asked whether “they” had told her that Renal Dotson
was fired “for trying to organize?" Reed replied, "Well, I don’t know about that, Ms. Jones."
Jones stated that she was “not backing off."
Smith addressed the foregoing meeting only in passing, noting that Jones asserted that
she was a strong black woman and that he replied that he was a strong white man. Van Young
testified that Smith informed Jones that she was being suspended for five days for her conduct
in the morning meeting. Laura Reed did not testify. Van Young acknowledged that a five day
suspension was unprecedented, but she did not bring that to Reed’s attention.
The Company admitted that, pursuant to subpoena, it had not provided any document
relating to discipline imposed for incidents at the metal detectors, and the Company presented
no evidence of discipline for any such incident ever having been issued. The security guards
maintain daily logs that reflect incidents at the metal detector. An entry on July 25 reflects that
new employees “protest[ed] concerning security procedures.” An entry on August 25 reports
that Jones “became upset because she didn’t want to go to the end of line.” The accompanying
August 25 incident report states that Jones became “upset and loud,” not that she refused to go
to the end of the line. An incident report on September 11 reports that employee Andrew
Marvine walked through the detector after being asked to step to the rear of line. He was not
disciplined. The Company presented no daily log notation of any incident relating to Jones
having occurred on August 27, and no incident report was prepared.
In August 2008, employee Dwight Beard called Area Manager Phil Smith a “damned
liar.” When issued an EPR, he tore it up without reading it. The discipline was never reissued.
b. Analysis and concluding findings
Jones was singled out as one of the “presumed … chairs” of the union organizational
effort in Manager Young’s weekly report of August 17. On August 28, Jones was issued an
EPR, a written warning, for twice ignoring the direction of Operations Manager Windisch that
she go to the back of the line at the metal detector. As already noted, I find it incomprehensible
that Windisch would not have immediately spoken to Jones if she had disobeyed him twice.
Jones denied that she refused to go to the back of the line. The security guard made no notation
of the alleged incident on August 27, but did note the incident on August 25 and wrote an
incident report on that date reflecting that Jones had become upset with the security procedure.
During the week that Jones was suspended, Windisch mentioned no other occasion upon which
he interacted with Jones at the metal detector. Employee Shelia Hicks, although not specifying
a date, recalled the single incident upon which Windisch directed Jones to go to the back of the
line and that Jones did so.
The General Counsel established a prima facie case that the warning issued to Jones on
August 28 was motivated by her union activity. No employee except Jones has ever been
disciplined for an incident at the metal detectors. The Respondent argues that Jones “refused to
follow OHL’s security policies on two separate occasions;” however the evidence establishes
that there was no refusal on August 25, only an upset employee, and that the alleged incident
on August 27 did not occur. Insofar as the Wright Line analysis is applicable in dual motive
cases, when the reason given for the action is either false or does not exist, the Respondent
has not rebutted General Counsel’s prima facie case. Limestone Apparel Corp., 255 NLRB 722
(1981). The Respondent, by issuing a warning to Jones because of her union activity, violated
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Section 8(a)(3) of the Act.
Jones was suspended, according to the Respondent, because of her remarks on August
28 when she was issued the warning. I have found that she did not commit the offense for which
she was warned. The Respondent knew that she had not committed the offense. Jones’ only
accuser was Windisch who, purportedly, permitted Jones to leave on break after twice ignoring
his instructions. Jones knew that she had obeyed the instruction and requested that the security
guard be called. Windisch denied the request stating that the Respondent was “not going to
bring up the security guard. We’re not going to do it that way." He admitted, that when Jones
was denied the security guard, who neither made a log entry nor wrote an incident report, that
Jones exhibited “a sudden shift in attitude.”
The General Counsel acknowledged that, insofar as Jones was not engaged in
protected concerted activity or representation of a grievant, the license accorded to comments
in those circumstances was not applicable in this case. Atlantic Steel, 245 NLRB 814 (1979).
Nevertheless, the Board has long held that intemperate reactions, when provoked, do not justify
discipline. See Well Bred Loaf, Inc., 280 NLRB 306, 319 (1986). As explained by the Board in E.
I. Dupont Nemours, 263 NLRB 159, 160 (1982):
… [I]t is well settled that “[a]n employer cannot provoke an employee to the point where
[the employee] commits … an indiscretion … and then rely on this to terminate [the]
employment.” N.LR.B. v. M & B Headwear Co., Inc., 349 F.2d 170, 174 (4th Cir. 1965).
Where the employer has provoked the employee, the onus for discharge should not be
automatically transferred to the employee. To allow the employer to use the logical and
intended result of its intensive harassment campaign to justify its discharge of the
subject of that illegal harassment would be to reward the employer for its own
wrongdoing. Bearing in mind that here Jones [the name of the employee] neither struck
nor slapped his supervisor, we find that Jones' conduct was not so unreasonable in
relation to Respondent's provocative harassment as to justify his discharge.
I find that Jones was provoked. Jones was called to the office in the presence of three of
the highest ranking managers at the warehouse, and in the absence of her direct supervisor.
Her request that the security guard, who the Respondent’s managers knew was an eyewitness,
be called was denied with Windisch telling her that the Respondent was “not going to do it that
way." Windisch acknowledged that Jones exhibited a “shift in attitude” at that point. Insofar as it
was apparent to Jones that she was going to have to rely upon the honesty of Windisch, her
shift in attitude is understandable. The security guard, who made no log entry or incident report,
would have exonerated Jones and established that Windisch’s accusation was false. After
Windisch twice denied to Jones that she had gone to the back of the line as he had instructed,
she admits stating, "You know what? You are a lying sack of crap. … I did go to the back of the
line. And I can’t believe you’re sitting here lying in my face."
The Respondent’s witnesses claimed that Jones, rather than stating that Jones said
“lying sack of crap,” said that Windisch was a “lying white crack,” but stopped before uttering the
word “cracker.” It is unknown what Young reported to Laura Reed, who did not testify. Reed did
not mention either “crap” or “crack” in her conversation with Jones.
Jones considered “cracker” to be a pejorative term, but I note that the Atlanta Crackers
were a minor league baseball team in Atlanta, Georgia, from 1901 until 1965. I have credited
Jones regarding her admitted comment. Although justified insofar as it was provoked by an
unjust accusation, I find the word “crap” to be at least as pejorative as the word “cracker,” a
word that the Respondent’s witnesses agree that she did not actually say.
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Jones, accused of an offense that she did not commit and denied the presence of the
security guard who the Respondent knew was a witness, was provoked. Her only defense was
to state that her accuser, Windisch, was a liar. She asserted that management had “ganged up
on me … all three of you ganging up on me,” an assertion fully confirmed by the record.
The Respondent tolerated situations in which distraught employees called supervisors
liars as confirmed by the absence of any discipline imposed upon Dwight Beard when calling
Area Manager Smith a “damned liar” with regard to a pay dispute.
Jones’ indiscreet remark, provoked by the Respondent’s accusation of an offense that
she did not commit and denied an eyewitness, did not deprive Jones of the protection of the Act.
Her reaction was not so unreasonable “in relation to Respondent's provocative” and untrue
accusation as to justify suspension, an unprecedented suspension of five rather than three
days. Jones, after being told that she was suspended, asked Reed whether “they” told her that
“we were organizing a Union in this place?" Reed, notwithstanding having received various
emails and weekly reports, untruthfully replied, “[N]o.” The Respondent, by suspending Carolyn
Jones for five days because of her union activities, violated Section 8(a)(3) of the Act.
4. Jerry Smith
a. Facts
Jerry Smith, the boyfriend of Carolyn Jones, worked for the Respondent from October
15, 2007, until his discharge on August 28 purportedly for violating the Company’s workplace
violence policy. That policy prohibits various acts including causing physical injury, making
threatening remarks, and “aggressive or hostile behavior that create a reasonable fear of injury
to another person.” The incident that precipitated his discharge occurred shortly after Jones
received the warning for allegedly failing to return to the back of the line at the metal detector.
Jones, after being permitted to leave the Human Resources office, returned to her work
area to obtain the keys to her vehicle. As she prepared to leave, Phil Smith and Windisch, who
had entered the secure area, passed her. Phil Smith commented, “I thought you had something
so important to do." Employee Athena Cartwright, who was leaving in order to obtain copies of a
document, overheard Phil Smith ask Jones whether she was “late for her meeting,” and that
Jones replied, "You can’t stop this." I do not credit Phil Smith’s claim that Jones asked, “How
does it feel to do things dirty?” Jones began crying because she had missed the appointment at
her son’s school, an appointment that was “very important” to her.
Both Cartwright and Jones walked past Phil Smith and Windisch on their way out of the
secure work area. A photograph shows, and testimony establishes, that the secure work area is
separated from the nonsecure area by a chain link fence. The metal detector provides an
opening through the fence. The time clock that employees punch is located on a wall
approximately 12 feet from the metal detector outside of the secure area.
Jerry Smith, who worked in the Samys account, had come to the area outside of the
fence to meet Jones. He was unaware that she had received a warning. He observed Phil Smith
and Windisch pass Jones and appear to say something. He then saw that Jones had begun to
cry. In order to be heard over the noise in the warehouse, he yelled out, "What’s the problem?"
Phil Smith turned and “started walking fast toward where I [Jerry Smith] was standing” outside
the fence.
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I find that Jerry Smith’s testimony that he remained near the time clock was mistaken.
Employee Athena Cartwright confirms that Jerry Smith came up to the chain link fence. I find
that he did so in order to be heard when asking, “What’s the problem?”
I do not credit the testimony of Phil Smith that Jerry Smith yelled out, “Do you have a
problem?” or the testimony of Windisch that Smith said, “You got a problem?” No other witness
corroborates that testimony. Carolyn Jones confirmed that Smith asked, “What’s the problem?”
Athena Cartwright recalled that Jerry Smith asked, "Is everything okay? Is something wrong?" A
security incident report states that Jerry Smith asked, “Is there a problem?”
Phil Smith asked Jerry Smith who he was talking to. Jerry Smith answered, “[T]o both of
you.” Whether, as Jerry Smith recalled, Phil Smith replied, "You better be talking to her.
Because if you’re talking to me, you’re going to have a problem," is irrelevant. Phil Smith
confirmed by he was aware that “both of you” referred to himself and Carolyn Jones insofar as
he admits telling Jerry Smith that “any problem with Carolyn isn’t between you and I. You don’t
have anything to do with this.”
I do not credit the uncorroborated testimony of Operations Manager Windisch that,
when asked to whom he was talking, Jerry Smith replied that he was talking “to you guys, both
of you." I also do not credit the uncorroborated testimony of Windisch that Jerry Smith clenched
his fists and that the security guard stood up. Cartwright confirmed that Jerry Smith did not
clench his fists, explaining that his “fingers were in the barbed wire,” i.e. the chain link fence.
Although the security incident report reflects that the security guard was Laura Corcoran, the
report was prepared by Randy Knott. That report states that Jerry Smith asked, “Is there a
problem?” When asked by Phil Smith who he was addressing, Jerry Smith stated that he was
addressing both Phil Smith and Jones. The report does not mention any action by the security
guard. Consistent with the testimony of Athena Cartwright, I find that the security guard
remained seated in her chair at the table. Cartwright was asked, “[D]id she [the guard] ever
move or intervene? Cartwright answered, “No. There was nothing to intervene about.”
As soon as Carolyn Jones exited through the metal detector, she grabbed Jerry Smith’s
arm and told him they should go “because you know what they’re trying to do.” They clocked out
and left for lunch.
Phil Smith admitted that Jerry Smith used no profanity and made no threatening
statement. He did not claim that Jerry Smith clenched his fists. Jerry Smith recalled that he and
Phil Smith were seven or eight feet apart. Phil Smith recalled that they were four or five feet
apart. They were separated by the chain link fence. Windisch acknowledged that Phil Smith’s
tone, when speaking to Jerry Smith, was a “little stern.”
Cartwright later passed through the metal detector as she returned with the copies of the
documents that she had made. As she passed through the metal detector, Security Guard
Corcoran asked her "What happened? What’s going on?" Cartwright answered, "Your guess is
good as mine. I don’t know what occurred." Cartwright testified that it did not seem like anything
major to her, that Jerry Smith asked, “Is there a problem? Is something wrong?" That it “was
blown out of proportion on [by] the management they have.”
When Jones and Jerry Smith returned from lunch, each went to their work area and
began working. Jones was called to an office in Fiskars and suspended. Thereafter, Jerry
Smith’s supervisor, Sandy Pugh, informed Smith that she had been told to bring him to Human
Resources. She asked, “What’s going on Jerry?" He replied, "I don’t know, Sandy."
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When they arrived, Phil Smith, Windisch, and Van Young were present. Phil Smith
handed Jerry Smith an EPR that reflected that he was terminated and asked him to read it. The
document reports that Jerry Smith became confrontational with both Phil Smith and Windisch,
stating, "Do you have a problem,” and that, when asked by Phil Smith who he was talking to
answered, “I am talking to the both of you.” It reports that Jerry Smith “repeated ‘What’s the
problem,’” and that Jones “pulled Jerry [Smith] away.” Although the Separation Notice reflects
that Jerry Smith was terminated for “violation of company workplace violence policy,” the EPR
reflects that he was discharged for “improper conduct,” not “violation of company policy.”
Jerry Smith began to write an employee comment, but then stopped. Phil Smith stated
that “OHL has a zero tolerance stipulation in place that … no violence is accepted.” He then
stated that he “felt threatened by what I said.” Jerry Smith asked, "You felt threatened by me
saying, ‘What’s the problem?’" Phil Smith replied, "I felt very threatened." Young interjected that
Phil Smith was an Area Manager and could “say what he wants to say on the floor any time he
wants to. And what business is it of yours anyway?" Jerry Smith explained, "Carolyn [Jones] is a
close friend of mine. I just wanted to resolve the problem."
Jerry Smith then addressed Phil Smith stating, "If you really felt threatened about what I
said, then I [am] going to apologize to you." Laura Reed, who was on a speaker phone,
interrupted and said, "Oh, it’s a little too late for that." Jerry Smith was then again informed that
“since I violated the company’s policy that I was going to be terminated as of today.” Jerry Smith
again addressed Phil Smith asking, "You really mean to tell me I threatened you by saying,
‘What’s the problem?’" And he said, “[Y]es, I did.”
Van Young testified that Laura Reed made the decision to discharge Jerry Smith
pursuant to what Young reported, verbally, to her. There is no record of what Young told Reed,
and Reed did not testify. In testifying about her conversation with Reed, Young stated that Reed
informed her that Jerry Smith should be discharged because “he threatened two managers.”
How Reed reached that conclusion is not reflected on the record. Neither Van Young nor any
other representative of the Company spoke with Carolyn Jones or Athena Cartwright, both of
whom witnessed the incident. Jerry Smith was never asked for his version of what occurred.
The EPR terminating Jerry Smith had been prepared before he was called to the office.
Approximately one year prior to the foregoing incident, well before any union
organizational activity, employee Dwight Beard and Area Manager Phil Smith had engaged in
an argument during a preshift meeting in Fiskars. Beard, who understood that he was to be paid
$10.25 an hour but was being paid only $10 an hour, asked Smith what the Company was
“going to do about their money they owe us pre-rate for hiring us.” Smith called Beard a
“damned liar.” Beard, who had been about 12 feet from Smith, walked to about 12 inches from
Smith and “called him a damned liar back.” Beard removed his glasses and stated that he “was
going to get my money.” Phil Smith appeared angry. He responded, "You want to make me get
ghetto with you. We can take this outside." Windisch came up and pushed Beard back. Beard
was sent to the Human Resources office, but then permitted to return to work. That afternoon,
Beard was called to an office and given a warning by Smith and leadman John Puckett. Beard
did not read the document. He stated that he was not signing it, “tore it up and set it down on
the desk and walked back out.” The discipline was never reissued. At the preshift meeting the
next day Smith stated that he “was sorry for … the incident we had” and shook Beard’s hand.
Phil Smith did not deny any aspect of the credible testimony of Beard, but asserted that
he did not feel threatened.
b. Analysis and concluding findings
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Jerry Smith, with his girlfriend Carolyn Jones, was singled out as one of the “presumed
… chairs” of the union organizational effort in Manager Young’s weekly report of August 17.
Jerry Smith, who had worked for the Respondent since October 15, 2007, had no prior
discipline. The Respondent’s animus is well established. Jerry Smith was discharged
purportedly because of the incident that occurred on August 28 and as a direct result of Phil
Smith’s claim that he felt threatened.
Phil Smith was standing with Windisch near the security guard and was separated from
Jerry Smith by a chain link fence. Phil Smith says he stopped “four or five feet” from the fence.
Phil Smith, although claiming that he felt threatened, did not back up. Jerry Smith returned to
work after lunch and performed his job duties until his supervisor was directed to bring him to
the office where he was discharged. The Respondent, although attempting to issue discipline to
Dwight Beard, did not reissue the discipline after Beard tore it up and walked out. Dwight Beard,
one year previously and prior to any union activity, called Phil Smith a “damned liar” 12 inches
from his face. I find that the General Counsel established a prima facie case.
Although Van Young claimed that she spoke with the security guard before terminating
Jerry Smith, I find that doubtful insofar as she testified that, when doing so, “[S]he [the security
guard] was writing the report up “ The security incident report, although naming Laura Corcoran,
the female security guard, was not written by Corcoran; it was written by Randy Knott, who did
not witness the exchange between Phil Smith and Jerry Smith. Young’s summary notes relating
to the termination do not reflect that she spoke with the security guard or reviewed any security
tapes. If she had read or discussed the report with the security guard she would have been
aware that it reported that Jerry Smith asked, “Is there a problem?” not “Do you have a
problem?” as claimed by Phil Smith. Young did not speak with Jerry Smith, Carolyn Jones, or
Athena Cartwright. “The failure to conduct a meaningful investigation or to give the employee
[who is the subject of the investigation] an opportunity to explain” are clear indicia of
discriminatory intent.” Bantek West, Inc., supra.
Van Young testified that Laura Reed, based upon the verbal report that she received
from Young, stated that Jerry Smith had threatened “two managers” and that was workplace
violence and that he should be terminated. Insofar as Laura Reed did not testify, how she
formed the belief that Jerry Smith threatened two managers is not established. Windisch,
although asserting that Jerry Smith’s “gestures” were threatening, never claimed that he felt
threatened. No witness corroborated Windisch’s claim that Jerry Smith clenched his fists. Did
Young report that uncorroborated claim, an action that could not have occurred because his
hands were on the fence? Did she report the existence of the fence and that Phil Smith and
Jerry Smith were on opposite sides of it? Did she report that the security incident report
contradicted the claim of Phil Smith and Windisch that Jerry Smith asked, “Do you have a
problem?” [Emphasis added.]
The EPR reflecting the discharge of Jerry Smith incorrectly states that Jerry Smith asked
Phil Smith and Windisch, “Do you have a problem?” Phil Smith, in claiming that he felt
threatened, asserted that Jerry Smith’s hollering “if I have a problem” was threatening.
Notwithstanding that claim, Phil Smith asserted that he was not threatened when Dwight Beard,
who had been standing 12 feet from him, came to within 12 inches of his face, called him a
“damned liar,” took off his glasses, and stated that he was going to get his money. Phil Smith
suggested that they “take this outside." Windisch pushed Beard back. There was no need for
intervention on August 28, and neither Windisch nor the security guard intervened.
Beard, Jerry Smith, and Phil Smith, all of whom I observed at the hearing, are
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approximately the same size, both Beard and Jerry Smith being slightly, but not significantly,
larger. Neither would qualify for a guard or tackle position on the Tennessee Titans. I find it
inconceivable that Phil Smith, who invited Dwight Beard to go “outside” when he got 12 inches
from his face, could honesty assert that he felt threatened by Jerry Smith asking, “What is the
problem?” from the opposite side of a chain link fence, and I do not credit that testimony.
The Respondent’s policy relates to “behavior that create[s] a reasonable fear of injury.”
Even if I were to find that Phil Smith did feel threatened, that feeling was not reasonable given
the fact that Jerry Smith used no profanity, made no threat, did not clench his fists, and was on
the other side of the fence from Phil Smith, Windisch and the security guard. If there had been a
reasonable fear of injury, Jerry Smith would not have been permitted to return to the warehouse
and go to work after lunch. Phil Smith’s feeling of a threat related to the real threat perceived by
the Respondent: a prounion employee “trying to drive a union into OHL.”
Laura Reed, who Young claims made the termination decision, did not testify; thus, the
record does not reflect what Young reported to her. Young’s verbal report to Reed had to have
been inaccurate and incomplete in order for Reed to have concluded that Jerry Smith had
threatened two managers. Windisch did not claim that he felt threatened. Young’s failure to
conduct an investigation meant that she did not report that only Phil Smith claimed that Jerry
Smith had yelled, “Do you have a problem?” (Windisch claimed that Smith yelled, “You got a
problem?”) No other witness, including the security incident report, places the word “you” in
Jerry Smith’s question. The record does not establish whether Young reported that there was a
fence separating Phil Smith and Jerry Smith and that a security guard was present at the metal
detector, the only opening through the fence. The record does not reflect whether Young
reported that there was no physical altercation, that there was no claim than Jerry Smith uttered
any threat, and that no profanity was spoken.
The Board, in Golden Foundry & Machine Co., 340 NLRB 1176, 1177 (2003), restated
longstanding precedent regarding false reports made by supervisors.
It is well established that if a supervisor provides a false report that leads to a discharge,
that supervisor's unlawful motivation is imputable to the employer, even if the official who
actually makes the discharge determination is unaware of the supervisor's animus.
[Citations omitted.]
The Section 8(a)(1) violations committed by Young and Phil Smith establish their animus
towards the Union, animus confirmed by Young's reports and Phil Smith’s tearing up of the
prounion literature left by Yelverton while stating, “Not in my warehouse.” As cogently stated by
employee Athena Cartwright, the security guard did not intervene because there “was nothing to
intervene about.” The situation was “blown out of proportion … [by] management.”
Insofar as a Wright Line analysis is applicable in dual motive cases, when the reason
given for the action is either false, or does not exist, Respondent has not rebutted General
Counsel’s prima facie case. Limestone Apparel Corp., supra. Even if a Wright Line analysis
were applicable, in view of the absence of any discipline imposed upon employee Dwight Beard,
I would find that the Respondent did not establish that it would have discharged Jerry Smith in
the absence of his union activities. By discharging Jerry Smith because of his union activity, the
Respondent violated Section 8(a)(3) of the Act.
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Conclusions of Law
1. By coercively interrogating employees regarding their union activities and the union
activities of other employees, by threatening employees with loss of the gain share program and
other benefits if they selected the Union as their collective bargaining representative, by telling
employees who support the Union that they should find another job, by confiscating prounion
literature from breakrooms prior to the ending of breaks, by threatening employees with loss of
their jobs if they participate in an economic strike, by threatening that it would be futile for
employees to select the Union as their collective bargaining representative, by contacting the
police to have union agents removed from public property, by interfering with employees’ right to
distribute literature to their fellow employees in nonworking areas on nonworking time, and by
prohibiting employees from engaging in lawful solicitation and distribution at a location of the
Company at which they did not work, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By warning and discharging Renal Dotson, warning and suspending Carolyn Jones,
and discharging Jerry Smith, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and 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.
The Respondent must rescind the unlawful discipline issued to Renal Dotson and
Carolyn Jones, and must make Carolyn Jones whole for any loss of earnings and other benefits
suffered as a result of her suspension.
The Respondent having unlawfully discharged Renal Dotson and Jerry Smith, it must
offer them reinstatement and make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from August 28, 2009, 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).
The General Counsel requests compound interest upon any backpay due. Consistent
with the decision of the Board in Glen Rock Ham, 352 NLRB No. 69, slip op. 1 fn. (2008), not to
deviate from its current practice of awarding simple interest, I deny that request.
The Respondent will also be ordered to post an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended6

6 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
purposes.
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ORDER
The Respondent, Ozburn-Hessey Logistics, LLC, Memphis, Tennessee, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their union activities and the union
activities of other employees.
(b) Threatening employees with loss of the gain share program and other benefits if they
select the Union as their collective bargaining representative.
(c) Telling employees who support the Union that they should find another job.
(d) Confiscating prounion literature from breakrooms prior to the ending of breaks.
(e) Threatening employees with loss of their jobs if they participate in an economic
strike.
(f) Threatening that it would be futile for employees to select the Union as their collective
bargaining representative.
(g) Contacting the police to have union agents removed from public property.
(h) Interfering with employees’ right to distribute literature to their fellow employees in
nonworking areas on nonworking time.
(i) Prohibiting employees from engaging in lawful solicitation and distribution at a location
of the Company at which they did not work.
(j) Warning, suspending, and discharging employees because of their union activities in
support of United Steelworkers of America or any other labor organization.
(k) 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 effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind the discriminatory discipline
issued to Renal Dotson and Carolyn Jones.
(b) Within 14 days from the date of this Order, offer Renal Dotson and Jerry Smith full
reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(c) Make whole Renal Dotson, Carolyn Jones, and Jerry Smith for any loss of earnings
and other benefits suffered as a result of the discrimination against them, in the manner set forth
in the remedy section of the decision.
(d) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful warning and discharge of Renal Dotson, the unlawful warning and suspension of
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Carolyn Jones, and the unlawful discharge of Jerry Smith, and within 3 days thereafter, notify
Renal Dotson, Carolyn Jones, and Jerry Smith in writing that this has been done and that the
discipline, suspension, and discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional 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 records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to determine the amount of backpay due under the terms of this
Order.
(f) Within 14 days after service by the Region, post at its facilities in Memphis,
Tennessee, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms
provided by the Regional Director for Region 26, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent 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, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, 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 June 2009.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
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.
Dated, Washington, D.C., May 20, 2010.
_____________________
George Carson II
Administrative Law Judge

7 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.”
JD(ATL)–12–10
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate you regarding your union activities or the union activities
of other employees.
WE WILL NOT threaten you with loss of the gain share program and other benefits if you select
the Union as your collective bargaining representative.
WE WILL NOT tell those of you who support the Union that you should find another job.
WE WILL NOT confiscate prounion literature from breakrooms prior to the ending of breaks.
WE WILL NOT threaten loss of your jobs if you participate in an economic strike.
WE WILL NOT threaten that it would be futile for you to select the Union as your collective
bargaining representative.
WE WILL NOT contact the police to have union agents removed from public property.
WE WILL NOT interfere with your right to distribute literature to your fellow employees in
nonworking areas on nonworking time.
WE WILL NOT prohibit you from engaging in lawful solicitation and distribution at a location of
the Company at which you do not work.
WE WILL NOT warn, suspend, or discharge you because of your union activities in support of
United Steelworkers of America or any other labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, rescind the discriminatory
discipline issued to Renal Dotson and Carolyn Jones.
WE WILL, within 14 days from the date of the Board’s Order, offer Renal Dotson and Jerry
Smith full reinstatement to their former jobs or, if those jobs no longer exist, to substantially
JD(ATL)–12–10
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed
WE WILL make whole Renal Dotson, Carolyn Jones, and Jerry Smith for any loss of earnings
and other benefits suffered as a result of the discrimination against them, in the manner set forth
in the remedy section of the decision.
WE WILL within 14 days from the date of this Order, remove from our files any reference to the
unlawful warning and discharge of Renal Dotson, the unlawful warning and suspension of
Carolyn Jones, and the unlawful discharge of Jerry Smith, and within 3 days thereafter, notify
Renal Dotson, Carolyn Jones, and Jerry Smith in writing that this has been done and that the
discipline, suspension, and discharges will not be used against them in any way.
OZBURN-HESSEY LOGISTICS, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
The Brinkley Plaza Building, Suite 350, 80 Monroe Avenue, Memphis, TN 38103-2416
(901) 544–0018, Hours: 8:00 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (901) 544–0011