Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board Decisions

Dec 8, 2011

357 N.L.R.B. 1632 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 136
1632
Ozburn-Hessey Logistics, LLC and United Steel-
workers Union. Cases 26–CA–023497, 26–CA–
023539, and 26–CA–023576
December 9, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On May 20, 2010, Administrative Law Judge George
Carson II issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Acting Gen-
eral Counsel filed an answering brief, and the Respond-
ent filed a reply brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions, to modify his remedy,2 and to
adopt the recommended Order as modified and set forth
in full below.3
In May 2009, the Union began organizing employees
at the Respondent’s three Memphis, Tennessee facilities.
The complaint at issue involves unfair labor practice al-
legations arising from the Respondent’s response to the
organizational activity from June 2009 to October 2009.
The judge found that the Respondent committed numer-
ous violations of the Act.4 The Respondent excepts to
each of the judge’s unfair labor practice findings. Sub-
ject to the minor clarifications below, we agree with the
judge’s findings.
1. We adopt the judge’s findings that the Respondent
violated Section 8(a)(1) of the Act in numerous respects.5

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s remedy by requiring that
backpay and other monetary awards shall be paid with interest com-
pounded on a daily basis.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and to provide for the posting of
the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For
the reasons stated in his dissenting opinion in J. Picini Flooring, Mem-
ber Hayes would not require electronic distribution of the notice. We
shall also substitute a new notice to conform to the modified Order.
4 The judge also dismissed a number of alleged violations. No party
excepts to the dismissals.
5 In finding that the Respondent violated Sec. 8(a)(1) by interrogat-
ing employee Undenise Martin about her union activities and by con-
tacting the police to have union agents removed from public property,
the judge relied on cases decided when the Board had only two sitting
members. We adopt the judge’s findings of those violations, but rely
on Webco Industries, 334 NLRB 608, 608 fn. 2, 618 (2001), enfd. 90
Regarding the findings that the Respondent violated Sec-
tion 8(a)(1) by threatening employees with loss of certain
benefits if they voted in the Union, the credited evidence
is that, in July and August 2009, Manager Smith told
employees that they would lose their gain share bonuses
and other benefits if they were to vote in the Union. It is
well established that such statements are unlawful. See,
e.g., Heritage Hall, E.P.I. Corp., 333 NLRB 458, 466
(2001).6
As to the finding that the Respondent violated Section
8(a)(1) by threatening employees with job loss if they
voted in the Union, we agree with the judge that employ-
ees would reasonably view Manager Young’s statements
as representing that, in the event of an economic strike,
striking employees would be permanently replaced by
temporary employees and would lose their jobs. Apply-
ing the Board’s standard for determining the lawfulness
of an employer’s predictions regarding the consequences
of an economic strike set forth in Eagle Comtronics, Inc.,
263 NLRB 515 (1982), we agree with the judge that
Young’s statements constituted an unlawful threat. See
Wild Oats Market, Inc., 344 NLRB 717, 740–741 (2005);
and Baddour, Inc., 303 NLRB 275 (1991).
Regarding the findings that the Respondent violated
Section 8(a)(1) by ordering offsite employees to leave
the Remington facility premises on September 18 and
September 25, we note that the applicable legal standard
is set forth in Hillhaven Highland House, 336 NLRB 646
(2001), enfd. 344 F.3d 523 (6th Cir. 2003). Applying
that standard, we find that the offsite employees were

Fed. Appx. 276 (10th Cir. 2003) (interrogation); and Sprain Brook
Manor Nursing Home, LLC, 351 NLRB 1190, 1191–1192 (2007) (po-
lice contact). Member Hayes agrees that the Respondent violated Sec.
8(a)(1) by interrogating Martin. He thus finds it unnecessary to pass on
whether the Respondent also violated Sec. 8(a)(1) by Manager Roy
Ewing’s questioning of a group of employees on September 25 as such
a finding would be cumulative and not affect the remedy.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by Manager Smith’s suggestion that Renal Dotson find another
job, Member Hayes notes that Smith’s statement was made in the con-
text of Dotson’s union activity. In addition, in adopting the judge’s
finding that the Respondent violated Sec. 8(a)(1) by confiscating proun-
ion literature, Member Hayes relies on the October 16 incident during
which Manager Phil Smith tore up union fliers while yelling, “Not in
my warehouse,” and then threw the fliers away. In doing so, Member
Hayes disavows the judge’s statements that an employer may maintain
a housekeeping rule permitting it to remove “prounion literature from
nonworking areas left behind following break periods[,]” but that an
“employer may not remove or destroy prounion literature from non-
working locations on employees’ nonworking time.”
6 In adopting the judge’s finding of a violation, we do not rely on
Wal-Mart Stores, 352 NLRB 815 (2009), a case decided when the
Board had only two sitting members. Further, Member Hayes does not
rely on the judge’s discussion of Manager Smith’s admitted, but appar-
ently uncredited, statement that the gain share payouts would not apply
to employees in a collective-bargaining unit.
OZBURN-HESSEY LOGISTICS, LLC

1633
seeking to organize fellow employees and thus had Sec-
tion 7 rights to access the Remington property. In addi-
tion, we find that the Respondent offered no credible
business justification for excluding the offsite employees
from the premises. See ITT Industries, 341 NLRB 937
(2004), enfd. 413 F.3d 64 (D.C. Cir. 2005). According-
ly, we agree with the judge that the Respondent violated
Section 8(a)(1) on September 18 and 25 by ordering
offsite employees engaged in the distribution of union
literature to leave the Remington premises.7
2. We also adopt the judge’s findings that the Re-
spondent violated Section 8(a)(3) and (1) by disciplining
and discharging Renal Dotson, disciplining and suspend-
ing Carolyn Jones, and discharging Jerry Smith.8 Specif-
ically regarding Jones’ suspension, we find that the judge
applied Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1992), and we agree with his application of that standard
to find that the Respondent violated Section 8(a)(3) and
(1). As to the Respondent’s rebuttal burden, we find the
unprecedented length of the 5-day suspension to be addi-
tional evidence that the Respondent would not have tak-
en the same disciplinary action against Jones absent her
union activities.
ORDER
The National Labor Relations Board orders that 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 employ-
ees.

7 Member Hayes joins his colleagues in adopting the judge’s finding
of a violation as to the September 25 incident, as the Respondent’s
exceptions on that issue are limited to credibility matters. He thus finds
it unnecessary to pass on whether the Respondent also violated Sec.
8(a)(1) on September 18. Further, he notes that he did not participate in
Hillhaven or ITT Industries and takes no position on whether those
cases were correctly decided.
8 Member Hayes joins his colleagues in adopting the judge’s find-
ings of the 8(a)(3) violations. As to the verbal discipline of Renal
Dotson and the written warning discipline of Carolyn Jones, Member
Hayes would find that the Respondent’s asserted reasons for these
actions were either false or not in fact relied upon by the Respondent.
He would thus conclude that the Respondent necessarily failed to show
that it would have taken the same action against the employees absent
their union activities. See Golden State Foods Corp., 340 NLRB 382,
382 (2003). As to the 5-day suspension of Carolyn Jones and discharg-
es of Renal Dotson and Jerry Smith, Member Hayes would find that the
Respondent failed to meet its Wright Line rebuttal burden based on the
evidence of disparate treatment identified by the judge in his analysis of
those issues.
(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 job loss if they partic-
ipate in an economic strike.
(f) Threatening employees that selecting a union repre-
sentative would be futile.
(g) Contacting the police to have union agents re-
moved from public property.
(h) Ordering offsite employees engaged in the distribu-
tion of union literature for organizational purposes to
leave the premises.
(i) Warning, suspending, and discharging employees
because of their union activities in support of United
Steelworkers of America or any other labor organization.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the discriminatory disciplines 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 substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(c) Make whole Renal Dotson, Carolyn Jones, and Jer-
ry Smith for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision as amended in this 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 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 disciplines, 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1634
tronic copy of such records if stored in electronic form,
necessary to analyze 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 at-
tached notice marked “Appendix.”9 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 plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent 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 for Region 26 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT coercively question you regarding your
union activities or the union activities of other employ-
ees.
WE WILL NOT threaten you with loss of the gain share
program and other benefits if you select the Union as
your 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 you with job loss if you partici-
pate in an economic strike.
WE WILL NOT threaten you that selecting a union repre-
sentative would be futile.
WE WILL NOT contact the police to have union agents
removed from public property.
WE WILL NOT order offsite employees engaged in the
distribution of union literature for organizational purpos-
es to leave the premises.
WE WILL NOT warn, suspend, or discharge you because
of your union activities in support of United Steelwork-
ers 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
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the discriminatory disciplines 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 rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice 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 bene-
fits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
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 un-
lawful discharge of Jerry Smith, and within 3 days there-
after, notify Renal Dotson, Carolyn Jones, and Jerry
Smith in writing that this has been done and that the dis-
ciplines, suspension, and discharges will not be used
against them in any way.
OZBURN-HESSEY LOGISTICS, LLC

OZBURN-HESSEY LOGISTICS, LLC

1635
Christopher J. Roy and William T. Hearne, Esqs., for the Gen-
eral Counsel.
Ben H. Bodzy and Stephen D. Goodwin, Esqs., for the Re-
spondent.
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 consoli-
dated complaint that issued on January 27, 2010.1

The com-
plaint alleges that the Respondent violated Section 8(a)(1) of
the National Labor Relations Act (the Act) in various respects
including coercively interrogating employees, threatening em-
ployees, 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 Sec-
tion 8(a)(1) of the Act and that various warnings, the suspen-
sion, and two of the discharges violated Section 8(a)(3) of the
Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Ozburn-Hessey Logistics, LLC, the Company or OHL, is a
Tennessee corporation engaged in the business of transporta-
tion, warehousing, and logistic services for various 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 di-
rectly from points located outside the State of Tennessee. The
Respondent admits, and I find and conclude, that it is an em-
ployer 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 organiza-
tional activity by its employees. The Company’s associate
handbook, states:

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 26–CA–023497 was filed on August 28. The charge
in Case 26–CA–023539 was filed on October 2. The charge in Case
26–CA–023576 was filed on November 10, and was amended on Janu-
ary 27, 2010.
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 disrup-
tion could interfere with our growth and the progress and fu-
ture 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 retail-
ers. Employees package and ship various products to the re-
spective retailers. One of the warehouses, referred to as Re-
mington, is located on Global Drive, about 2 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 re-
ferred 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 cus-
tomer accounts are overseen by area managers. The area man-
agers relevant to this proceeding are Phil Smith, who oversaw
the Fiskars account, Kelvin Davis, who oversaw various ac-
counts including accounts at the Remington warehouse, and
Linda Sones, who oversaw the HP account.2 Personnel and
disciplinary matters are overseen by Human Resources Manag-
er 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 be-
ginning 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 repre-
sentative. 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 Compa-
ny 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 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 Man-
ager 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

2 The position titles used herein are as they appear on R. Exh. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1636
brief preshift meeting in which they are informed of the work
that needs to be performed that day. At the outset of the organi-
zational effort, union meetings were announced by party invita-
tions 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 “Contrac-
tors Place,” but the address of the location was not given. No
invitation was offered into evidence. Employee Jones distribut-
ed these party invitations prior to the first union meeting which
was to be held on June 18. At the June 18 Fiskars preshift meet-
ing, 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 meet-
ing. 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 re-
garding 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 describ-
ing 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 em-
ployee 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 risk-
ing,” 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 employ-
ees 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 un-
ion in here.” Employee Carolyn Jones recalled that Smith an-
swered “Absolutely not, you will not be eligible for . . . [gain
share].” I am mindful, as pointed out in the brief of the Re-
spondent, that Jones referred to the program as “team share.”
That misappelation has no bearing upon her credible recollec-
tion 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 cups, T-shirts.” Employee Un-
denise 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 un-
ion, 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 admit-
ted statement regarding the gain share program confused the
language of the program, which excludes employees covered
by a collective-bargaining agreement, with employees repre-
sented 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 employ-
ees is per se violative of Section 8(a)(1) of the Act, regardless
of whether the employer adds to the misconduct by implement-
ing the restriction or exploiting it during an organizing cam-
paign.” Id. at 1328. [Emphasis added.] Even if Smith had cor-
rectly 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 cor-
roborative 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 repre-
sentative, 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 invita-
tions. Employee Linda Cotton recalled that Smith, in an infor-
mal 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. Car-
olyn 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 cor-
roborating 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 em-
ployees 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
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1637
party?” Smith replied, “[O]h, you all know about the party.
Undenise, you know what I’m talking about, don’t you?” Mar-
tin did not answer. She testified that, at the time, she was una-
ware 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 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 con-
versation. Smith credibly denied the conversation. I shall rec-
ommend that this allegation be dismissed.
Subparagraph 7(g) alleges that Smith, on August 7, interro-
gated 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 employ-
ees whether they had gotten home safely and then asked wheth-
er they had made it to the party. No employee corroborated the
foregoing testimony, and Smith denied making any such in-
quiry. 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 en-
gaged in distribution in a work area. It then sets out the Com-
pany’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 re-
called 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 disturb-
ing 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 incon-
sistency to his attention. I credit Oyugi’s recollection of the
conversation. I shall recommend that this allegation be dis-
missed.

3 The General Counsel, in its brief, withdrew an allegation of inter-
rogation included in subpar. 7(h).
Subparagraph 7(j) alleges the promulgation of a rule prohib-
iting solicitation on company property. In this instance, on Au-
gust 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 Bai-
ley that it had been reported that he had “been passing out peti-
tions 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 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 con-
sistent 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 misunder-
standing and Smith stated a restriction greater than that set out
in the letter, I am satisfied that Bailey would have sought clari-
fication. 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 con-
fiscation of union literature from employee breakrooms, once
on October 15 and twice on October 16.
On October 15, employee Jennifer Smith went to the break-
room in building 5540 for her 11 a.m. break with employee
Shelia Childress. In the breakroom they found prounion litera-
ture on each of the four break tables. They sat together at one
table and picked up and began reading 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., 5 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 build-
ing 5540 prior to the 8 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,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1638
Yelverton heard his name called. He turned and saw Area Man-
ager 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 forego-
ing 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 un-
ion literature in the presence of Jennifer Smith and Shelia Chil-
dress.
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 until
10:15 a.m. Other employees were with Foster in the breakroom
and were presumably still there when he left. He left the break-
room at 10:13 a.m. As he was leaving, Smith entered the break-
room and stated, “It’s time to clean up.” Through the window
of the breakroom he saw Smith picking up the prounion litera-
ture. 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 employ-
ees were expected to clean up after themselves, but, if they did
not, “we go behind them.” On cross examination Smith admit-
ted that “[t]here are custodians who clean the breakrooms.” In
response to further questions on cross examination, Smith testi-
fied, “If break is over and there’s no one in there, then all mate-
rials 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
5 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 2 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 asser-
tion that “he routinely cleaned the breakroom should be reject-
ed as it defies logic that . . . [an Area Manager] would regular-
ly perform such menial duties.” Smith’s admission that “custo-
dians clean the breakrooms” is consistent with that argument,
as is the testimony of employee Foster that he had never previ-
ously 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 non-
working 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 nonwork-
ing locations on employees’ nonworking time. Jennie-O Foods,
301 NLRB 305, 338 (1991). Smith removed prounion literature
from nonworking areas during breaktime in the presence of
employees. His “[n]ot in my warehouse” reaction to the proun-
ion 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 un-
specified 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 conver-
sation, 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 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 em-
ployee about the union activity of other employees.4 Employee
Undenise Martin, on an unspecified date in June, was out of
work 1 day taking care of her daughter. She received a tele-
phone 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

4 The General Counsel, in its brief, withdrew an allegation of solici-
tation of grievances included in subpar. 8(a).
OZBURN-HESSEY LOGISTICS, LLC

1639
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 conversa-
tion 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 tele-
phone 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 employ-
ee whose union sympathies are not known at her home and
interrogating her regarding her knowledge of the union activi-
ties of other employees was coercive. See Stevens Creek Chrys-
ler Jeep, 353 NLRB 1294, 1295 (2009). The Respondent, by
coercively interrogating employees regarding the union activi-
ties 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 regard-
ing a matter involving Operations Manager Jim Windisch.
Young then asked, “was there a Union meeting going on.” Mar-
tin, 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 conver-
sation, explaining that it related to Windisch and communica-
tion in Fiskars, not the Union.
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

5 The General Counsel, in its brief, withdrew an allegation of crea-
tion of an impression of surveillance included in subpar. 8(b).
was no secret. I shall recommend that this allegation be dis-
missed.
Subparagraph 8(c) alleges that Young, on August 31, con-
tacted 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 inter-
sects 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 re-
plied 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 an-
other individual arrived. Smith says that Hawkins was backing
up and, about the time they reached the wide white line, Bran-
don 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 com-
pany 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, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1640
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 con-
tend that anyone was on company property. If, as Smith testi-
fied, Brandon arrived after he had walked Hawkins to the wide
white line, there were, as Young reported, two individuals pre-
sent “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 employ-
ees.
The foregoing allegation is predicated upon remarks made
by Young at a meeting with 25 to 30 employees at the Reming-
ton 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 pro-
gram. 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
not have a job.” Regarding a contract, he recalled Young stat-
ing that “it could be three, six, 10 years. May not get a con-
tract.” Taylor specifically denied that Young acknowledged
that the bargaining process could “go quickly.”
The Respondent presented employee Leslie Almo, a custom-
er 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 ac-
count. 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 tem-
porary employees and a lot of the striking employees would
“lose you all’s jobs.” “Employers cannot tell employees with-
out explanation that they would lose their jobs as a conse-
quence 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 employ-
ees 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 employ-
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1641
ees to select the Union as their collective-bargaining repre-
sentative, 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 allega-
tion be dismissed.
3. Remaining 8(a)(1) allegations
I shall deal with paragraph 9 of the complaint in my discus-
sion of the discharge of Charles Tate.
Paragraph 10 of the complaint alleges interference with leaf-
leting at the Remington warehouse on September 18. On that
date, International Organizer Brandon, accompanied by former
employee Jerry Smith and a group of employees whose work-
day had ended early: Carolyn Jones, Athena Cartwright, Un-
denise Martin, and James Bailey, went to the Remington ware-
house on Global Drive to leaflet. A fence, with a gate that bears
a no trespassing sign, surrounds the facility. Photographs re-
ceived into evidence show that the gate is approximately 30
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 park-
ing lot. Brandon and Jerry Smith stationed themselves at the
curb, the public right of way. The employees went onto compa-
ny 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 Brad-
sher 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 ware-
house.
Bradsher claimed that when he observed Jones she was in-
side 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 acci-
dent 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 ware-
house he met Area Manager Kelvin Davis coming out of the
warehouse. Davis began walking towards Jones.
Area Manager Davis, approached Jones stating, “You all go-
ing to have to leave the premises right now.” Whether he men-
tioned 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.”
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 be-
cause 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 vehi-
cles, that they would “only stop if they wanted to stop.” She
denied that either Bradsher or Davis said anything about block-
ing 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 di-
rected 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 incredi-
ble 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1642
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 em-
ployee. By doing so, the Respondent interfered with the em-
ployees’ right to distribute literature to their fellow employees
in nonworking areas on nonworking time in violation of Sec-
tion 8(a)(1) of the Act.
Paragraph 11 of the complaint alleges interference with the
distribution of literature at the Remington warehouse on Sep-
tember 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 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 poli-
cy as set out in the letter she had received on August 11. Em-
ployee Freeman heard Jones arguing that she had the right to
solicit during the employees’ break. Ewing’s defensive de-
meanor 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 ob-
served 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 in-
side the facility, Ewing waved for them to come together. Em-
ployee David Freeman recalls that Ewing questioned the em-
ployees, asking, “What did they say? What is [sic] the pam-
phlets 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 under-
stand 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 employ-
ees 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 in-
forming 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.
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
OZBURN-HESSEY LOGISTICS, LLC

1643
at which they did not work and coercively interrogating em-
ployees regarding their union activities, violated Section 8(a)(1)
of the Act.
Paragraph 12 of the complaint alleges an early October inter-
rogation of an employee by Operations Supervisor Alfreda
Owens. Employee Jennifer Smith recalled that Owens ap-
proached her in a one-on-one conversation as she was distrib-
uting 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 em-
ployee 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 Cole-
man. 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 down-
stairs from the breakroom, he encountered Senior Vice Presi-
dent Coleman who asked whether he knew what soliciting was.
Wardlow initially testified that Coleman told him 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.
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 an-
nounced 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 men-
tioned.
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 co-
ercion 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 alle-
gation be dismissed.
C. The 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 employ-
ee 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 Mem-
phis.”
By midafternoon on August 28, none of the three were work-
ing. On August 28, Dotson and Smith were discharged and
Jones was suspended for 5 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 Re-
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1644
spondent’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 tak-
en 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
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 hav-
ing a union “would benefit them” and passing out union litera-
ture. 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 Manag-
er 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 any-
thing 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 an-
nounced 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 meet-
ing 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 2 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 ser-
vices 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 follow-
ing his lunchbreak, 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 tele-
phone 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 “mak-
ing 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 inci-
dent. The security guard made no comment when he did so.
After Tate had been working for about 10 minutes, Opera-
tions Supervisor Dye called a meeting of the employees work-
ing 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 talk-
ing 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, ex-
OZBURN-HESSEY LOGISTICS, LLC

1645
plaining 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 wor-
ried about that. Dye called the employees he supervised togeth-
er 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 de-
scribed as a rant, pushing a garbage can and throwing a clip-
board 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 re-
sources. Dye credibly testified that he does not have the author-
ity, on his own, to fire an employee. The record does not estab-
lish whether Tate, a relatively new employee, was aware of that
fact.
Carolyn Jones overheard her supervisor, Barbara Oyugi,
speaking on the telephone and 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 no-
tice,” 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 inac-
curate. 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
8(a)(1) violations found herein establish that the Respondent
bore animus towards union activity and employees who en-
gaged in that activity. I do not, however, find that the Respond-
ent 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 de-
scribing 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 in-
formed 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 de-
tector 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 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 dis-
charge 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.
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 con-
firmed 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1646
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 Re-
spondent had knowledge of his union activity and would, there-
fore, 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 recom-
mend 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 forklift except the driver stands when
operating the vehicle. Dotson performed putaways, placing
products that had been delivered into their appropriate loca-
tions, 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 re-
spond and left. Dotson then observed that pieces of his proun-
ion 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 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, em-
ployee 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 in-
structed the reach truckdrivers 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 con-
firmed 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 spe-
cial labeling were almost finished, and began performing puta-
ways.
Operations Manager Windisch, who came to work on July
31 at 6:15 a.m., observed Dotson performing the replenish-
ments. 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 ob-
served 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 re-
plenishing.” 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, stat-
ed 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.
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 pre-
pared a memorandum summarizing the meeting that states that
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1647
Windisch requested that Smith meet with him and Dotson relat-
ing to Dotson’s engaging in conversation with another employ-
ee 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 per-
forming 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 relat-
ing to Dotson which attaches an email sent to Young by
Windisch on August 26. Windisch’s email states that he is at-
taching 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 “dis-
ruptive 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 memo-
randum referred. Windisch claimed that the purpose of this
meeting was to counsel Dotson regarding disrupting preshift
meetings because Dotson had, that morning, engaged in con-
versation 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 de-
tector changed between May and August. All participants in the
meeting agree that Dotson asked whether OHL had any dis-
count arrangements with national hotels or car rental compa-
nies. He was informed that the Company did not.
Area Manager Smith testified that he counseled Dotson re-
garding the importance of preshift meetings. Dotson recalls no
such comments but does recall that Smith questioned him re-
garding why he was here at the Company, “Why am I working
at this Company. Why don’t I . . . find another job some-
where?” Dotson asked what was going on, and Smith repeated
himself asking why he was working for this Company and ask-
ing, “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 morn-
ing you would get a new one, and applying that analogy to an
employee’s job, stating, “[I]f 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, putaways. A picker asked for a replen-
ishment, but Dotson refused, stating that he could not help be-
cause he didn’t “want to get another write-up.” As noted, Oper-
ations Supervisor Oyugi had told the reach truckdrivers that if
“they’re doing replenishments they are supposed to . . . re-
plen[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 disci-
plined because he “wouldn’t do what the Pickers wanted.”
Young asked Dotson what work he had been performing. Dot-
son relied “putaways.” Young told him to go back downstairs
to work, and he did so. Young did not deny the foregoing con-
versation.
Dotson was concerned regarding what had occurred on Au-
gust 26. That evening he called the “Alertline,” which he re-
ferred 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 a.m., he experienced severe intestinal is-
sues 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 per-
mission 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 Dot-
son 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 (R. Exh. 7), bears no signatures of any
management official. Dotson’s Separation Notice had already
been prepared. It states that Dotson was discharged for “viola-
tion 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1648
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 conversa-
tions 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 be-
cause 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.”
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 seri-
ous[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 en-
gaged 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 ob-
taining product for employee Tiffany Robertson because he had
been authorized to work overtime for the special labeling pro-
ject. 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 per-
formed a replenishment for the special labeling project. He was
asked to perform a replenishment for Robertson. After receiv-
ing permission from Newberry, who was in charge of the spe-
cial 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 Dot-
son. Supervisor Oyugi thought that the meeting was “to talk to
him [Dotson].” “The failure to conduct a meaningful investiga-
tion or to give the employee [who is the subject of the investi-
gation] an opportunity to explain” are clear indicia of discrimi-
natory 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 label-
ing project and ordinary replenishments and, presumably, to
refuse to replenish Robertson notwithstanding the standing
instruction that, if performing replenishments, he should replen-
ish 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 per-
forming 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 coun-
seling prepared prior to meeting with Dotson and issued not-
withstanding his explanation that if a Picker requested replen-
ishment he was supposed to “help them out” was issued be-
cause of his union activity and violated Section 8(a)(3) of the
Act.
As discussed above, I find that Dotson was issued no disci-
pline on August 20. Area Manager Smith’s memorandum re-
flects that Windisch informed him, incorrectly, that he and
Oyugi had issued a written warning to Dotson relating to
preshift meetings rather than a verbal 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 re-
ferred 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 8 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 mes-
sage 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 Co., 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 ar-
gument in the brief of the Respondent that Dotson’s testimony
regarding whether he explained that he was in the restroom
OZBURN-HESSEY LOGISTICS, LLC

1649
during the preshift meeting is not credible. It also is not rele-
vant. 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 want-
ing 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 meet-
ings 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 attend-
ance 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.
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 be-
cause 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 detec-
tor 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 incompre-
hensible 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’ supervisor, Barbara Oyugi, was not present. Smith ar-
rived. 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 report-
ed 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 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 an-
swered, “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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1650
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 admit-
ted telling Jones that the Company was “not going to bring up
the security guard. We’re not going to do it that way.” He testi-
fied 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, ex-
plaining that that she considered the word “cracker” to be rac-
ist, thereby implying that she would not have made such a re-
mark 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 forego-
ing meeting, did not state what she was told because she did not
testify.
Shortly after Jones returned from her lunchbreak, 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 Rela-
tions Manager Laura Reed was on a speaker telephone. Reed
informed Jones that, “[u]pon 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.”
Jones then asked whether “they” told her that “we were or-
ganizing a Union in this place?” Reed, although having re-
ceived at least 2 weekly reports relating to organizational ac-
tivity, untruthfully replied, “[N]o.” Jones asked whether “they”
had told her that Renal Dotson was fired “for trying to organ-
ize?” 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, not-
ing 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 suspend-
ed for 5 days for her conduct in the morning meeting. Laura
Reed did not testify. Van Young acknowledged that a 5-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 inci-
dents 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 inci-
dents 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 be-
cause she didn’t want to go to the end of line.” The accompany-
ing 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 pre-
sented no daily log notation of any incident relating to Jones
having occurred on August 27, and no incident report was pre-
pared.
In August 2008, employee Dwight Beard called Area Man-
ager 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. Dur-
ing 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 disci-
plined 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,
OZBURN-HESSEY LOGISTICS, LLC

1651
when the reason given for the action is either false or does not
exist, the Respondent has not rebutted the 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 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, purported-
ly, 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 de-
nied 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 representa-
tion 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 disci-
pline. See Well Bred Loaf, Inc., 280 NLRB 306, 319 (1986). As
explained by the Board in E. I. Dupont de 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] em-
ployment.” NLRB v. M & B Headwear Co., 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 cam-
paign to justify its discharge of the subject of that illegal har-
assment would be to reward the employer for its own wrong-
doing. Bearing in mind that here Jones [the name of the em-
ployee] neither struck nor slapped his supervisor, we find that
Jones’ conduct was not so unreasonable in relation to Re-
spondent’s provocative harassment as to justify his discharge.

I find that Jones was provoked. Jones was called to the of-
fice 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.
Jones, accused of an offense that she did not commit and de-
nied 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 gang-
ing up on me,” an assertion fully confirmed by the record.
The Respondent tolerated situations in which distraught em-
ployees 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 ac-
cusation 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 Respond-
ent’s provocative” and untrue accusation as to justify suspen-
sion, an unprecedented suspension of 5 rather than 3 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 5 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 Au-
gust 28 purportedly for violating the Company’s workplace
violence policy. That policy prohibits various acts including
causing physical injury, making threatening remarks, and “ag-
gressive 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 of-
fice, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1652
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 photo-
graph 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
timeclock that employees punch is located on a wall approxi-
mately 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.
I find that Jerry Smith’s testimony that he remained near the
timeclock was mistaken. Employee Athena Cartwright con-
firms 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 wit-
ness corroborates that testimony. Carolyn Jones confirmed that
Smith asked, “What’s the problem?” Athena Cartwright re-
called that Jerry Smith asked, “Is everything okay? Is some-
thing 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. Be-
cause 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 securi-
ty 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 Corco-
ran, 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 an-
swered, “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 7 or 8 feet apart. Phil Smith recalled that they were
4 or 5 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 re-
turned 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 any-
thing 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 su-
pervisor, 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.”
When they arrived, Phil Smith, Windisch, and Van Young
were present. Phil Smith handed Jerry Smith an EPR that re-
flected 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 prob-
lem,” 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 dis-
charged 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 stipu-
lation 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
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1653
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, verbal-
ly, 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 rec-
ord. 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 1 year prior to the foregoing incident, well
before any union organizational activity, employee Dwight
Beard and Area Manager Phil Smith had engaged in an argu-
ment during a preshift meeting in Fiskars. Beard, who under-
stood 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 re-
sources office, but then permitted to return to work. That after-
noon, Beard was called to an office and given a warning by
Smith and leadman John Puckett. Beard did not read the docu-
ment. 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 stat-
ed 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
Jerry Smith, with his girlfriend Carolyn Jones, was singled
out as one of the “presumed . . . chairs” of the union organiza-
tional 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 be-
cause 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 per-
formed 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, 1 year previously and prior to any union activi-
ty, 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 securi-
ty 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 opportuni-
ty 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 vio-
lence 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 prob-
lem?” [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 threat-
ened, asserted that Jerry Smith’s hollering “if I have a problem”
was threatening. Notwithstanding that claim, Phil Smith assert-
ed 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 stat-
ed 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 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1654
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 per-
ceived by the Respondent: a prounion employee “trying to
drive a union into OHL.”
Laura Reed, who Young claims made the termination deci-
sion, 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 inci-
dent 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 motiva-
tion is imputable to the employer, even if the official who ac-
tually makes the discharge determination is unaware of the
supervisor’s animus. [Citations omitted.]

The 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 ware-
house.” 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 the General Coun-
sel’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 activi-
ties. By discharging Jerry Smith because of his union activity,
the Respondent violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By coercively interrogating employees regarding their un-
ion 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 un-
ion agents removed from public property, by interfering with
employees’ right to distribute literature to their fellow employ-
ees in nonworking areas on nonworking time, and by prohibit-
ing employees from engaging in lawful solicitation and distri-
bution 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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent 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, com-
puted 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, 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 516 (2008), not to deviate from its cur-
rent practice of awarding simple interest, I deny that request.
The Respondent will also be ordered to post an appropriate
notice.
[Recommended Order omitted from publication.]