Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Board Decisions

May 2, 2013

359 N.L.R.B. 1025 (N.L.R.B. 2013)

OZBURN-HESSEY LOGISTICS, LLC 1025

359 NLRB No. 109
Ozburn-Hessey Logistics, LLC and United Steel-
workers Union. Cases 26–CA–024057, 26–CA–
024065, 26–CA–024090, and 26–RC–008635
May 2, 2013
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On May 15, 2012, Administrative Law Judge Robert
A. Ringler issued the attached decision. The Respondent
filed exceptions and a supporting brief, the Acting Gen-
eral Counsel and the Charging Party Union each filed an
answering brief, and the Respondent 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 and to adopt the recommended
Order as modified and set forth in full below.
2

As recounted by the judge, this is the third in a series
of cases involving the Respondent’s unlawful attempts to
thwart its employees’ efforts to secure union representa-
tion. In 2009, the Union began an organizing drive at the
Respondent’s Memphis, Tennessee facility, the same
facility involved in this case. That organizing drive led
to a representation election in March 2010, which the
Union lost. The Respondent’s antiunion campaign yield-
ed two Board decisions finding that the Respondent
committed numerous violations of Section 8(a)(1) and
(3) of the Act from late 2009 to early 2010.
3
In addition,
the Acting General Counsel obtained an injunction under
Section 10(j) of the Act ordering the Respondent to rein-
state or make whole several unlawfully disciplined em-
ployees, including Carolyn Jones, the discharged em-

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.
In addition, the Respondent’s exceptions allege that the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
2 As described in the amended remedy section set forth below, we
shall modify the judge’s order to conform to our standard remedial
language and to comply with our recent decision in Latino Express,
Inc., 359 NLRB 518 (2012).
3 See Ozburn-Hessey Logistics, LLC, 357 NLRB 1456 (2011)
(Ozburn I); Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011)
(Ozburn II). The judge in Ozburn I upheld the union’s objections and
recommended that the first election be rerun, but the union withdrew its
first petition before the case was decided by the Board. 357 NLRB
1456 fn. 1.
ployee in this case. See Hooks v. Ozburn-Hessey Logis-
tics, 775 F.Supp.2d 1029 (W.D. Tenn. 2011).
The present case involves similar alleged misconduct
preceding a July 27, 2011
4
election, which the Union
won by a vote of 165 to 164, with 14 challenged ballots.
The judge found, and we agree, that the Respondent un-
lawfully confiscated union materials, conducted surveil-
lance of protected activity,
5
interrogated employees,
6

created an impression of surveillance,
7
threatened em-
ployees, and discharged employee Carolyn Jones for
engaging in protected activity. For the reasons discussed
below, we also agree with the judge’s findings that the
Respondent committed additional violations of the Act.
Finally, as discussed below, we shall direct the Regional
Director for Region 26 to count six ballots challenged in
the election, to certify the Union as the employees’ rep-
resentative if the revised tally of ballots shows that the
Union received a majority of the votes, and, if not, to
conduct a rerun election.
1. We also agree with the judge’s finding that, at a
June 28 captive-audience meeting, Director of Opera-
tions Phil Smith unlawfully invited supporters of the
Union to quit. In the course of that meeting, employee
Tondra Mitchell, who opposed the Union, openly assert-
ed that if union supporters were so unhappy, then they
should seek other employment. Director of Operations
Smith replied, “Exactly [or My point exactly], that’s
what I’m talking about.”
The judge’s finding rests on settled law that an em-
ployer’s statement that prounion employees should quit
constitutes an implicit threat that unionization is incom-
patible with continued employment and that union sup-
porters will be discharged.
8
In addition, the Board has

4 All dates below are in 2011, unless otherwise specified.
5 In finding that management officials conducted unlawful surveil-
lance of union supporters while they were distributing literature in the
Respondent’s parking lot on May 25, we note in particular that it was
highly atypical for such officials to appear in sequence and to linger in
the parking lot as they did on that occasion. See, e.g., Sprain Brook
Manor Nursing Home, 351 NLRB 1190, 1191 (2007).
6 Because the finding of a violation would be cumulative and would
not affect the remedy, we find it unnecessary to pass on the allegation
that Senior Employee Relations Manager Shannon Miles unlawfully
interrogated employee Kedric Smith, as found by the judge.
7 The judge found that Human Resource Assistant Sara Wright’s un-
lawful interrogation of employee Sharon Shorter—concerning whether
union supporter Glenora Rayford had approached Shorter “on the
floor” to discuss the Union—also created an impression of unlawful
surveillance. We agree, particularly given Wright’s failure to specify to
Shorter how she learned of Shorter’s conversation with Rayford. See,
e.g., McClain & Co., 358 NLRB 1069, 1072 (2012). Moreover, the
Respondent has not argued or shown that Shorter reasonably should
have assumed that Wright had learned of her conversation with Rayford
by some lawful means.
8 E.g., Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006);
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

held that an employer’s endorsement or ratification of an
employee’s antiunion conduct makes the employer itself
liable for that conduct.
9
Here, Director of Operations
Smith’s express endorsement of Mitchell’s comment that
union supporters should quit effectively made that com-
ment Smith’s own, and thus chargeable to the Respond-
ent.
10

2. The judge found that the Respondent unlawfully is-
sued employee Jennifer Smith a written final warning in
retaliation for her prounion activity. Again, we agree
with the judge. Jennifer Smith was an open supporter of
the Union. On June 8, she had an argument with em-
ployee Stacey Williams, who openly opposed the Union,
over the whereabouts of certain supplies. Williams later
complained to the Respondent that Jennifer Smith had
called him a “house nigger” during that argument. The
next day, the Respondent issued Jennifer Smith a written
final warning, which asserted that she had “called Stacey
a ‘house n****r’ . . . in violation of [the Respondent’s]
anti-harassment and non-discrimination policy.”
Applying Wright Line,
11
the judge found that the Act-
ing General Counsel established that Jennifer Smith’s
union activity was a motivating factor in the Respond-
ent’s decision to discipline her. The judge further found
that the Respondent’s asserted basis for disciplining Jen-
nifer Smith—her alleged statement to Williams—was a
pretext. In this respect, the judge credited Jennifer
Smith’s testimony, as well as that of other employee wit-
nesses, that she did not use a racial slur against Williams.
The judge inferred from this finding, as well as the con-
siderable evidence of the Respondent’s antiunion ani-
mus, that the Respondent’s discipline of Jennifer Smith
was unlawful.
We agree with the judge’s conclusion that the disci-
pline was unlawful. In doing so, we emphasize the fol-
lowing additional circumstances that support his finding
of a violation. First, the record establishes that the Re-
spondent’s purported belief that Smith used a racial slur
was not reasonable. In charging Jennifer Smith with
misconduct, the Respondent ignored the testimony of
two witnesses who did not hear Smith use a racial slur

Paper Mart, 319 NLRB 9, 9 (1995); Roma Baking Co., 263 NLRB 24,
30 (1982).
9 See, e.g., Airtex, 308 NLRB 1135, 1142 (1992) (manager repeated
antiunion employee’s statement that union supporters would be “weed-
ed out”); cf. Group One Broadcasting, 222 NLRB 993, 993, 997 (1976)
(supervisor emphatically agreed with antiunion employee’s statement
that union supporters should be fired).
10 Although the fact is not necessary to our finding, this was not the
first time that Smith had unlawfully pressured a union supporter to quit.
See Ozburn II, supra, 357 NLRB 1632, 1649.
11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
and relied on the one witness, Shirley Milan, who sup-
ported Williams’ accusation against Smith. The Re-
spondent’s reliance on Milan while ignoring the other
witnesses was unreasonable: the Respondent knew that
Milan had previously made a false accusation of her own
against Smith.
Second, there is credited evidence in the record that
the Respondent did not believe that the use of racial slurs
merited discipline. The judge’s findings regarding the
Respondent’s unlawful discharge of prounion employee
Carolyn Jones establish that the Respondent was highly
inconsistent in its response to racial slurs. Shortly after
disciplining Jennifer Smith, the Respondent again in-
voked its antiharassment policy in discharging Jones.
Although the judge found that Jones did use a racial epi-
thet when confronting an antiunion employee, the judge
found that the Respondent’s decision to discharge Jones
in part for that misconduct was “deeply inconsistent with
[the Respondent’s] willingness to overlook the several
grossly offensive statements made by [Director of Opera-
tions] Phil Smith, a high-level supervisor, to subordinate
employees.” It thus appears that the Respondent was
using its antiharassment policy to target union support-
ers, further corroborating the judge’s finding of pretext in
Jennifer Smith’s case. Indeed, in all the circumstances
presented here, even assuming the Respondent reasona-
bly believed that Smith had used a racial epithet, we
would find that the Respondent could not and did not
establish that it would have disciplined her in the absence
of union activity.
3. As stated, we also adopt the judge’s resolutions of
the 10 remaining ballot challenges.
12
We also agree, for
the reasons stated by the judge, that the Respondent’s
election objections lack merit.
13
Further, as discussed
below, we agree that certain of the Union’s objections
have merit and will justify overturning the election result
if the Union loses its majority when the challenged bal-
lots found eligible are counted.
In determining whether the second election result
should be set aside based on the Union’s objections, the
judge considered some of the unlawful conduct the Re-
spondent committed before June 14, when the Union
filed the second election petition. In this respect, the

12 Fourteen ballots were challenged. The parties agreed at the hear-
ing not to count four of them. Of the remaining 10 challenges, there are
no exceptions to the judge’s overruling of 2 (team leads Brenda Stewart
and Tammy Stewart), and we agree with the judge’s findings as to the
remaining 8 for the reasons stated in his decision.
13 In dismissing the Respondent’s objection that Keith Hughes, a un-
ion supporter, threatened to rip an antiunion shirt off of the employee
wearing it, we do not rely on the judge’s finding that even if Hughes
had been shown to have committed the alleged misconduct, the Re-
spondent “mitigated” its impact by punishing Hughes.
OZBURN-HESSEY LOGISTICS, LLC 1027

judge relied on Board precedent establishing that, where
the Board orders a rerun election because of objectiona-
ble conduct, the critical period for the rerun election
commences on the date of the first election. We find it
unnecessary, however, to rely on the Respondent’s pre-
petition misconduct in this case. We rather find that the
Respondent’s postpetition misconduct was more than
sufficient—particularly considering the one-vote margin
of the election result
14
—to justify rerunning the election
in the event that the Union loses its tentative majority
after all eligible ballots are counted. That postpetition
misconduct included the unlawful discharge of Jones,
one of the strongest union supporters; the unlawful con-
fiscation of union material on June 22; Director of Oper-
ations Phil Smith’s express endorsement of a comment at
the June 28 captive audience meeting that union support-
ers should quit; Director of Operations Smith’s unlawful
threat against Keith Hughes, made in public at the con-
clusion of the July 14-captive audience meeting, that
“I’m going to get you on subordination and get you out
of here”; the Respondent’s threats at other captive-
audience meetings that if the employees unionized it
would “bargain from scratch” and employees would lose
benefits; and the Respondent’s distribution of antiunion
T-shirts to employees in the unit. These incidents im-
paired the laboratory conditions necessary for a fair
Board election.
In sum, we will direct the Regional Director to open
and count the challenged ballots of four unlawfully dis-
charged discriminatees (Gloria Kurtycz, Jerry Smith,
Renal Dotson, and Carolyn Jones) and of two team leads
(Brenda Stewart and Tammy Stewart). We find the other
challenged ballots ineligible for the reasons stated by the
judge. If the revised tally of ballots shows that the Union
received a majority of the votes, the Regional Director
will be directed to certify the Union as the employees’
representative. If the Union did not receive a majority of
the votes, the Regional Director will be directed to con-
duct a rerun election.
AMENDED REMEDY
In remedying the Respondent’s unfair labor practices,
the judge ordered the Respondent to permit a Board
agent to read the remedial notice aloud to unit employ-
ees, at the facility, during working time, and in the pres-
ence of Senior Vice President of Operations Randall
Coleman and Director of Operations Phil Smith, both of
whom figured prominently in the violations found herein.
Given the multiple violations committed by the Re-
spondent in Ozburn I, Ozburn II, and this case, we agree
with the judge that a notice reading remedy is appropri-

14 E.g., BCI Coca-Cola, 339 NLRB 67, 69 (2003).
ate.
15
A reading of the notice will help to assure employ-
ees that they may freely exercise their Section 7 rights in
the future. We will conform this requirement, however,
to our established practice of affording a respondent the
option to have its managers, here Coleman and Smith,
read the notice aloud to employees in the presence of a
Board agent.
16

ORDER
The National Labor Relations Board orders that the
Respondent, Ozburn-Hessey Logistics, LLC (OHL),
Memphis, Tennessee, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with discipline and other
unspecified reprisals if they engage in union or other
protected concerted activities.
(b) Interrogating employees concerning their union or
other protected concerted activities.
(c) Engaging in surveillance of employees’ union or
other protected concerted activities.
(d) Creating the impression that employee union ac-
tivities are under surveillance.
(e) Confiscating union materials and related docu-
ments from employee break areas.
(f) Telling employees who support the Union to resign.
(g) Terminating, issuing final warnings, or otherwise
disciplining employees for engaging in union activities.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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 the Board’s Order,
offer Carolyn Jones full reinstatement to her former job
or, if such job no longer exists, offer her a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed.
(b) Make Carolyn Jones whole for any loss of earnings
and benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section

15 See Jason Lopez’ Plant Earth Landscape, 358 NLRB No. 46, slip
op. at 1–2 (2012); U.S. Service Industries, 319 NLRB 231, 232 (1995),
enfd. 107 F.3d 923 (D.C. Cir. 1997).
16 E.g., Marquez Brothers Enterprises, 358 NLRB 509, 510–511
(2012).
In addition, in accordance with our recent decision in Latino Ex-
press, 359 NLRB 518 (2012), we shall order the Respondent to com-
pensate affected employees for the adverse tax consequences, if any, of
receiving lump-sum backpay awards and to file a report with the Social
Security Administration allocating the backpay awards to the appropri-
ate calendar quarters for each employee. Last, the Respondent has not
excepted to the judge’s inclusion of a broad cease-and-desist order,
which we find appropriate in any event.
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

of this decision.
(c) Reimburse Jones an amount equal to the difference
in taxes owed upon receipt of a lump-sum backpay pay-
ment and taxes that would have been owed had there
been no discrimination against her.
(d) Submit the appropriate documentation to the Social
Security Administration so that when backpay is paid to
Jones, it will be allocated to the appropriate periods.
(e) Within 14 days from the date of the Board’s Order,
remove from its files any reference to Carolyn Jones’
unlawful discharge, and Jennifer Smith’s unlawful final
warning, and within 3 days thereafter notify them in writ-
ing that this has been done and that their discipline will
not be used against them in any way.
(f) 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-
tronic copy of such records if stored in electronic form,
necessary to analyze the backpay amounts due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at
its Memphis, Tennessee facility copies of the attached
notice marked “Appendix.”
17
Copies of the notice, on
forms provided by the Regional Director for Region 26,
after being signed by OHL’s authorized representative,
shall be physically posted by OHL and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily post-
ed. In addition to physical posting of paper notices, no-
tices 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 com-
municates with its employees by such means. Reasona-
ble steps shall be taken by OHL to ensure that the notices
are not altered, defaced, or covered by any other materi-
al. In the event that, during the pendency of these pro-
ceedings, OHL has gone out of business or closed the
facility involved in these proceedings, OHL shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by it at the facility at any time since April 11, 2011.
(h) Within 14 days after service by the Region, hold a
meeting or meetings at the facility, during working
hours, which will be scheduled to ensure the widest pos-

17 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.”
sible attendance, at which the attached notice marked
“Appendix” is to be read to the unit employees by Ran-
dall Coleman and Phil Smith in the presence of a Board
agent, or, at the Respondent’s option, by a Board agent in
those officials’ presence.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
DIRECTION
IT IS DIRECTED that the Regional Director for Region
26 shall, within 14 days from the date of this Decision,
Direction, and Order, open and count the ballots of Glo-
ria Kurtycz, Jerry Smith, Renal Dotson, Carolyn Jones,
Brenda Stewart, and Tammy Stewart. The Regional Di-
rector shall then serve on the parties a revised tally of
ballots and, if the Union has been designated by a ma-
jority of the votes counted, issue a certification of repre-
sentative. If the Union has not been so designated, IT IS
HEREBY ORDERED that the election conducted on July 27,
2011 be, and hereby is, set aside. The Regional Director
is directed to conduct a new election when, in his discre-
tion, a fair and free election can be held.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities

WE WILL NOT threaten you with discipline and other
unspecified reprisals because you support the United
Steelworkers Union (the Union) or any other union.
WE WILL NOT interrogate you about your union activi-
ties.
WE WILL NOT engage in surveillance of your union ac-
tivities.
WE WILL NOT create the impression that your union ac-
tivities are under surveillance.
OZBURN-HESSEY LOGISTICS, LLC 1029

WE WILL NOT confiscate union materials and related
documents from employee break areas.
WE WILL NOT tell employees who support the Union to
quit.
WE WILL NOT fire you, issue final warnings, or other-
wise discriminate against you because you support the
Union or any other union.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights de-
scribed above.
WE WILL, within 14 days from the date of this Order,
offer Carolyn Jones full reinstatement to her former job
or, if her job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
WE WILL make Carolyn Jones whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL compensate Carolyn Jones for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file a report with the Social Se-
curity Administration allocating the backpay award to
the appropriate calendar quarters.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge of Carolyn Jones and the unlawful written final
warning to Jennifer Smith.
WE WILL, within 3 days thereafter, notify Carolyn
Jones and Jennifer Smith in writing that this has been
done and that the discharge and final warning will not be
used against them in any way.
WE WILL hold a meeting or meetings at the facility,
during working hours, at which this notice will be read
aloud to you by Randall Coleman and Phil Smith (or the
current senior vice president of operations and director of
operations), in the presence of a Board agent, or by a
Board agent in those officials’ presence.
OZBURN-HESSEY LOGISTICS, LLC

William Hearne and Linda Mohns, Esqs., for the Acting Gen-
eral Counsel.
Ben Bodzy and Stephen Goodwin, Esqs. (Baker, Donelson,
Bearman, Caldwell & Berkowitz, PC), for the Respondent.
Glen Connor, Esq. (Quinn, Connor, Weaver, Davies & Rouco,
LLP), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case
was tried in Memphis, Tennessee, over the course of 7 days
during October and November 2011.1 On June 10, the United

1 All dates herein are in 2011, unless otherwise stated.
Steelworkers Union (the Union) filed the original charge in-
volved herein. The resulting consolidated complaint (the com-
plaint) alleged that Ozburn-Hessey Logistics, LLC (the Com-
pany, OHL, or Respondent) repeatedly violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act).
In addition to the above-described charges, the Union and
OHL filed several objections and challenges to a representation
election, which was held on July 27. These objections and
challenges were based upon the same evidentiary record as the
complaint and were, as a result, heard simultaneously.
On the entire record, including my observation of the de-
meanor of the witnesses, and after thoroughly considering the
parties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, OHL, a limited liability company, with
an office located in Brentwood, Tennessee, and a major ware-
house hub located in Memphis, Tennessee (the facility), has
provided transportation, warehousing, and logistics services.
Annually, in conducting its operations, it purchases and re-
ceives at the facility goods valued in excess of $50,000 directly
from points located outside of Tennessee. Based upon the
foregoing, OHL admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
OHL provides integrated supply chain management solu-
tions; including transportation, warehousing, freight forward-
ing, and import and export consulting services. Its clients in-
clude various apparel, chemical, electronics, retail, automotive,
food, and publishing concerns. It, consequently, operates nu-
merous distribution and warehousing centers throughout the
United States, including the facility at issue herein.
B. Prior Litigation and Organizing Efforts
This hearing involves the Union’s ongoing efforts to organ-
ize OHL’s employees. This litigation represents the third in-
stallment in a trilogy of cases involving the parties. The earlier
trials concerned many of the same issues involved herein.
1. First hearing
The first hearing, which was held in early 2010, involved
numerous allegations that OHL violated Section 8(a)(1) and
(3). In this case, the administrative law judge, and subsequent-
ly the Board, found that OHL repeatedly violated the Act.
(ALJ Exh. 1); Ozburn-Hessey Logistics, LLC, 357 NLRB 1632
(2011) (Ozburn I.)
2. First election
On March 16, 2010, the Board conducted an election at the
facility, which the Union lost by a wide margin. (ALJ Exh. 2.)
The Union subsequently filed objections to the election, and
asserted that OHL’s unlawful actions tainted the election. The-
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

se objections were sustained by the administrative law judge,
who ordered a rerun election. (Id.)
3. Second hearing
The second hearing, which occurred in late 2010, involved
voluminous allegations that OHL again violated Section 8(a)(1)
and (3). (ALJ Exh. 2.) In this case, the administrative law
judge, and subsequently the Board, found that OHL repetitively
violated the Act. Ozburn-Hessey Logistics, LLC, 357 NLRB
1456 (2011) (Ozburn II).2
4. The 10(j) Injunction
In light of the seriousness and magnitude of the violations
involved in the first two hearings, Region 26 of the Board filed
a Petition for Temporary Injunctive Relief in the United States
District Court for the Western District of Tennessee on August
10, 2010. (GC Exh. 4.) On April 5, a Petition for Temporary
Injunctive Relief (the Injunction) was granted. (Id.)
C. April 11—Confiscating Union Materials
Sandra Hayes, a former employee, testified that, on April 11,
she, Glenora Rayford and Helen Herron placed copies of the
Injunction in a break area.3 She related that she later observed
Supervisor Eric Nelson remove the Injunctions from the break
area. She recollected that she responded by telephoning Union
Organizer Ben Brandon, who directed her to place additional
copies of the Injunction in the break area, which she did. She
indicated that, thereafter, she saw Director of Operations Phil
Smith discard the additional Injunctions. She averred that their
actions were unusual, inasmuch as supervisors typically do not
remove waste from break areas. She added that break areas are
daily cleaned by a janitor, who typically stacks and leaves be-
hind written materials for several weeks at a time.
Rayford corroborated Hayes’ testimony. She said that she
observed Supervisor Nelson holding wadded Injunctions. She
added that, when she asked Supervisor Randy Phillips why
OHL removed the Injunctions from the break area, he queried,
“that trash?” She noted that she never previously saw supervi-
sors cleaning the break area, and estimated that reading materi-
al is normally left in the break area for multiple weeks at a
time. Herron corroborated Rayford’s and Hayes’ accounts.
Supervisor Nelson, who has since resigned, testified that lit-
erature is generally left in the break area for several days. He
denied intentionally disposing of the Injunctions.
Philip Smith testified that, even though OHL employs jani-
tors, he’s fastidious about break area tidiness, and maintains a
steady practice of cleaning away debris, including “empty
plates, food containers, general trash, papers, magazines, Avon
books [and] anything that’s laying there.” (Tr. 1466.) Howev-
er, he steadfastly denied discarding the Injunctions.
Inasmuch as Hayes, Rayford, and Herron indicated that they

2 On July 1, the Board approved the Union’s request to withdraw its
petition in Case 26–RC–008596, i.e., the first election petition, which,
thus, rendered any connected objections moot. The Board did not, as a
result, address the merits of setting aside the first election. See Ozburn
II, 357 NLRB 1456, 1456 fn. 1.
3 “USW Organizing Committee” was written on each copy of the In-
junction.
saw Smith and Nelson remove the Injunctions from the break
area, and Smith and Nelson denied such activity, I must make a
credibility determination. For several reasons, I credit Hayes,
Rayford, and Herron. First, Rayford and Herron were straight-
forward and plausible witnesses; they were consistent and por-
trayed themselves as truthful witnesses, who wanted to aid the
proceeding. Second, Nelson was vague. Lastly, Phil Smith
was a generally unbelievable witness, who although straight-
forward on direct, seemed to change his demeanor on cross,
and become vastly less cooperative. He seemed to be more
interested in advancing OHL’s interests than being forthright.
His “Mr. Clean” defense was also somewhat preposterous; it’s
simply improbable that a high-level manager would spend a
regular part of his workday cleaning food waste and other gar-
bage left behind by his subordinates. It is even less plausible
that he would have maintained this alleged penchant for tidi-
ness, after this practice was previously found unlawful in an
earlier litigation.4 See Ozburn I, supra, 357 NLRB 1632, 1638–
1639. I find it probable that he was disappointed by the Injunc-
tion, saw its distribution as beneficial to the Union, and took
steps to derail its dissemination.
D. April 29—Meeting in the Hewlett Packard Department
Anita Wells testified that, on April 29, she attended a captive
audience meeting in the Hewlett Packard department, which
was attended by 50 employees. She recollected Keith Hughes,
an open union supporter, asking Senior Vice President of Oper-
ations Randall Coleman whether the Union was obligated to
represent employees, who did not pay dues. She indicated that
Coleman refused to answer the question and became frustrated,
when Hughes refused to drop the matter. She stated that Phil
Smith then walked over to Hughes and stood closely behind
him for 15 minutes, in what appeared to an effort to intimidate
him into silence.
Hughes testified that, when Coleman told employees that the
election would occur earlier if they stopped filing charges, he
queried why they should drop legitimate charges. He stated
that Coleman replied that it was “his floor,” and told him to be
quiet. He stated that Phil Smith then approached him and hov-
ered over him for about 15 minutes. He added that, when the
meeting ended, Phil Smith threatened, “he thinks he’s some-
thing special; I got something for him.”
Phil Smith testified that Hughes rudely interrupted the
presentation, and even mumbled and made odd noises. He
acknowledged approaching Hughes, in order to confirm that he
was the actual heckler, and estimated that he stood behind him
at a 10 foot distance for 10 minutes. He denied uttering, “I got
something special for him.”
Because Hughes testified that Smith hovered over and
threatened him, in response to his queries about union issues,
and Smith denied such activity, I must make a credibility de-
termination. I credit Hughes over Phil Smith. First, as noted,
Phil Smith’s demeanor was less than credible. Second, it is
likely that Phil Smith was concerned that Hughes was under-

4 Phil Smith, ironically, confiscated the very same Injunctions that
ordered him to stop “confiscating pro-union literature from break are-
as.” (See GC Exh. 4.)
OZBURN-HESSEY LOGISTICS, LLC 1031

mining the captive audience meeting, and silenced him. Third,
Hughes was a refreshingly forthright and well-spoken witness,
who seemed to be committed to providing truthful testimony.
Lastly, Hughes’ testimony was corroborated by Wells, who was
also credible.
E. May 11—Human Resources Department Meeting
Sharon Shorter, an open union supporter, testified that, be-
fore the July 27 election, she was summoned to Human Re-
source Assistant Sara Wright’s office. She stated that Wright
asked her about changing a doctor’s appointment. She ex-
plained that she had been diagnosed with high blood pressure,
and recalled Wright asking whether someone was causing her
stress. She related that she forthrightly answered that she was
upset about being underpaid, and believed that such frustration
was causing her blood pressure issues. She said that Wright
failed to accept her explanation, and followed up by asking
whether someone at work was pressuring her about the Union.
She indicated that Wright continued this course, and identified
Rayford, a union supporter, as the possible source of her stress:

She said, . . . “do you all talk about the Union?” I said, “. . .
we have talked about the Union, but, it’s during break time;
we don’t talk about it during work time.” And then I asked
her, “. . . are you concerned about my blood pressure or are
you concerned about . . . Rayford coming to talk to me about
the Union?” And she said, “well, oh no Sharon, it’s not like
that. I am concerned about your blood pressure.” Then I told
her, “you know [now],” [and] got up and left. And she . . .
[hasn’t] called me back since [to ask] about my blood pres-
sure. [Tr. 785.]

Wright denied talking to Shorter about Rayford. She averred
that their conversation was limited to her concerns about Ray-
ford’s health, and Shorter’s grievance about her wages.
Inasmuch as Shorter testified that Wright questioned her
about Rayford’s union activities, and Wright denied such ac-
tion, I must make a credibility determination. I credit Shorter
over Wright. Shorter provided detailed and honest testimony;
she had a vivid recollection of their discussion. I find it im-
plausible that she would have concocted a story, which in-
volved Wright using her blood pressure problems as a mecha-
nism to ask her about the Union, unless it actually happened.
Her apparent irritation over this exchange lent credence to her
testimony. Wright, on the other hand, appeared less credible,
and only provided generalized testimony about their discussion.
F. May 25—Handbilling
Carolyn Jones testified that, on May 25, she and several
coworkers passed out handbills and solicited coworkers to sign
authorization cards in the Hewlett Packard parking lot in the
late afternoon. (See GC Exh. 6.) She recollected that, within
minutes of beginning, she observed John McNamee, director of
risk management, park his vehicle, exit, and then stop and lin-
ger for 7 minutes, while staring at the ground and feigning that
he had lost something.
Renal Dotson testified that he saw McNamee standing a few
feet away from his leafleting activity, and alternate between
peering at the ground and leafletters for 4 minutes, before de-
parting. He said that, within minutes of his departure, Cole-
man: exited the Hewlett Packard building; walked to his parked
car and sat in it for several minutes; slowly drove to another
spot; remained in his car a few more minutes; exited his car;
stared at the ground outside of his car for 5 more minutes; and
then, finally, reentered the building. Jerry Smith essentially
corroborated Jones’ and Dotson’s accounts.
McNamee testified that he is responsible for security at
OHL’s various sites, including the Memphis facility. He said
that he visits Memphis 12 times per year and was there on May
25. He stated that he parked in the Hewlett Packard parking
lot, walked around his car while making a call to his spouse,
and remained for several minutes. He denied watching em-
ployees’ union activities, and initially even denied noticing
them. (Tr. 799.) He then agreed, on cross-examination, that he
saw some employees, but, denied knowing that they were union
organizers. (Tr. 806.) He then changed his testimony again,
and agreed that they were likely organizers. (Tr. 807.)
Coleman testified that he has observed frequent handbilling
at the facility. He denied, however, observing such handbilling
on May 25.
I credit Jones, Dotson, and Smith over McNamee and Cole-
man. First, Dotson and Smith were extremely credible, helpful,
and straightforward witnesses. Second, their accounts were
corroborated by Jones, who provided clear testimony. Third,
McNamee was implausible and inconsistent. He first said that
he never noticed the leafletters, which was implausible, given
that he is a security official who would likely notice such ac-
tivities. He then inconsistently recanted his testimony and said
that he did observe them, but, denied that they were union or-
ganizers. He then contradicted himself again and said that they
were organizers. Lastly, Coleman’s recall was poor.
G. May 26—Threat Against Carolyn Jones
Carolyn Jones testified that, on May 26, in a break area, she
and her coworkers were discussing potential union dues. She
asserted that their discussion succeeded a captive-audience
meeting, where OHL exaggerated the cost of union dues. She
related that she told her coworkers that President Barrack
Obama supported their right to unionize, and that, if he en-
dorsed this right, it was worthy of their consideration. She
recalled that Phil Smith then appeared, stood behind her, and
said:

[I] just had two . . . employees . . . [say] they were called stu-
pid. [Y]ou all are the ones that are stupid because you’re try-
ing to get a Union. [Tr. 77.]

She recalled asking him whether he was referring to her, and
him answering, “[I]f the shoe fits, wear it.” She recalled deny-
ing that she had called anyone stupid, but, said that it was “stu-
pid” for employees to not want a union. She related that he
answered that wanting a Union was “stupid.” She indicated
that she then tried to end their discussion by asking, “[D]on’t
you have a meeting to go to?” She noted that he became irate,
and warned, “[y]ou better watch your back!”
Annie Ingram, Troy Hughlett, James Bailey, and Kedric
Smith corroborated Carolyn Jones’ account. They observed the
fracas, including Phil Smith saying that employees were “stu-
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

pid,” and telling Jones to “watch her back.” (See also GC Exh
10; tr. 1056–1057.) (See GC Exhs. 22, 58.) (GC Exh. 17.)
Phil Smith testified that employees complained to him that
Carolyn Jones had proclaimed that African American people,
who did not support unionizing, were stupid. He stated that he
solely visited the breakroom to tell employees that OHL did not
think that they were stupid. He indicated that, at some point,
Jones told him that he needed to go back to work, and that he
told her that she was out of line. He denied telling her to watch
her back.
Given that Carolyn Jones indicated that Phil Smith threat-
ened that she needed to “watch her back,” and Phil Smith de-
nied this statement, I must make a credibility determination, in
order to resolve this dispute. I credit Jones over Smith. First, I
found her testimony on this point to be credible, and the wit-
ness statement, which was created almost contemporaneously
with the incident, was consistent with her testimony. Second,
her testimony was corroborated by Hughlett, Ingram, Kedric
Smith, and Bailey. Third, as stated, Smith was a less than cred-
ible witness. Lastly, I note that, in a break area filled with peo-
ple, it is conspicuously implausible that OHL was unable to
find a single witness to corroborate Phil Smith’s account.
H. June 3 Interview of Kedric Smith
Shannon Miles, senior employee relations manager, testified
that, on June 3, she interviewed Kedric Smith. As part of the
interview, she asked:

Has C.J. tried to solicit you for the Union while you were
working on the floor (on the clock)? [GC Exh. 5 at 6.]

I. June 9 Written Warning to Jennifer Smith
1. Final warning notice
On June 9, the Company issued Jennifer Smith a final warn-
ing, which provided:

On 6/8/2011, Stacey Williams and Jennifer Smith got into a
verbal altercation wherein Jennifer called Stacey a “house
n****r,” . . . . This is in violation of OHL’s anti-harassment
and non-discrimination policy. [R. Exh. 2.]
2. Knowledge of Smith’s union activities
Jennifer Smith distributed union handbills and literature, and
solicited coworkers to support the Union. She testified for the
Union at the prior unfair labor practice hearings. She estimated
that she collected 50 signed union authorization cards. She
recollected wearing union hats and shirts to work. OHL admits
knowing about these activities. (GC Exh. 36; Tr. 475.)
3. Events leading to the final warning
Jennifer Smith testified that, on June 8, coworker Stacey
Williams became childishly upset over several missing red
pens. She indicated that, before the ruckus, she retrieved a box
of red pens from the supply area. She reported that, subse-
quently, Williams became irate that the red pen supply had
become depleted. She said that she declined to acknowledge
his demand for the pen pilferer to come forward, in order to
avoid a possible clash with an unstable coworker. She stated
that, at some point, Williams, who is also African American,
stated, “I guess I have to call the white people for you to give
me those pens back.” (Tr. 480.) She stated that Williams, who
is vehemently antiunion, later accused her of calling him a
“house nigger,” in response to his tirade, which she denied.
(See GC Exh. 37.)
Sheila Childress, who witnessed the altercation, testified that
she did not hear Smith call Williams a “house nigger.” (See
GC Exh. 40.) She estimated that she stood about 30 feet from
the fracas. Jerry Smith, who witnessed the incident, denied
hearing Jennifer Smith use profanity. He averred that he would
have heard such a comment, if it were said.
Williams testified that he was looking for a red pen and
asked his coworkers for their aid. He said that, when he was
met with silence, he enlisted Brad, his supervisor, to help him.
He said that, when Brad arrived, Jennifer Smith relinquished
several pens. He recalled her stating, “you’re always starting
stuff,” and “[you’re] nothing but a house nigger,” after Brad
left.
Shirley Milan claimed that she witnessed Smith call Wil-
liams a “house nigger.” She averred that she stood 4 feet away,
when the comment was made. (See also R. Exh. 11.) She
acknowledged, on cross-examination, that she previously ac-
cused Smith of threatening her with a knife, but, that OHL
found that this accusation was unfounded. (Tr. 938.) She ad-
mitted that she does not get along with Smith, whom she finds
controlling.
Because Jennifer Smith, Childress, and Jerry Smith denied
that Jennifer Smith called Williams a “house nigger,” and Wil-
liams and Milan provided opposite testimony, I must make a
credibility determination. I credit Jennifer Smith’s denial.
First, I found her to be an honest witness, who was cooperative
during all phases of her examination. Second, her testimony
was consistent with Childress’ and Jerry Smith’s credible ac-
counts. Third, Williams was a confusing, hostile, and argumen-
tative witness, whose testimony was disjointed. Finally, I
found Milan, who corroborated Williams’ account to be a bi-
ased witness, who previously made an unsubstantiated claim
that Smith threatened her with a knife, and who also conceded
that she dislikes Smith.
J. June 14—Petition for Second Election
On June 14, in Case 26–RC–008635, the Union filed a peti-
tion with the Board, which sought a new election at the facility.
(U. Exh. 14.) The petition covered 300 employees. (Id.)
K. June 14—Carolyn Jones’ Termination
1. Termination letter
On June 14, the same date that the Union’s election petition
was filed, Jones, a lead union organizer, was fired. Her termi-
nation letter provided:

Effective immediately, your employment with OHL is termi-
nated based on your violations of the OHL policies listed be-
low. Each of these violations independently justify your ter-
mination.

Violation of the company’s conduct guidelines regarding fail-
ure to cooperate with an internal investigation, including: fail-
ure to be forthright, open or truthful; withholding information
OZBURN-HESSEY LOGISTICS, LLC 1033

or evidence concerning matters under review or investigation;
fabricating information or evidence or conspiring to do so.

Violation of the company’s Anti-Harassment policy through
verbal conduct that denigrates or shows hostility or aversion
toward an individual due to race. [GC Exh. 14.]

Senior Employee Relations Manager Miles testified that she
made the decision to fire Jones. She stated that, although she
initially investigated whether Phil Smith had threatened her, she
concluded that he was innocent, and determined that Jones had
asked employees to sign a blank sheet of paper and then fraudu-
lently filled in a statement about the threat above their signa-
tures. She added that, during the course of this investigation,
she discovered that Jones had repeatedly called Lee Smith a
“UT,” an acronym for “Uncle Tom.” She stated that these ac-
tions violated OHL’s policies. She claimed that she decided to
fire Jones on June 13, the day before the Union’s petition was
filed.
I discredit Miles’ testimony; her demeanor was cagey and
untruthful. She was an uncooperative witness, who often
sparred during cross-examination. Her testimony was marked
by extensive pauses, when faced with difficult questions, and
she often failed to answer key questions. I do not, as a result,
credit her contention that she was unaware that the Union had
filed its petition, when she decided to fire Jones. Moreover, as
will be discussed under my Wright Line analysis, OHL’s dis-
charge rationale was pretextual.
2. OHL’s knowledge of Jones’ union activities
OHL conceded that it knew that Carolyn Jones was an active
union organizer. (Tr. 58; GC Exhs. 7–9.) She handbilled, so-
licited coworkers, and gathered 80 authorization cards.
3. Discharge reason #1—Fabricating evidence
OHL accused Jones of falsifying a statement, which de-
scribed Phil Smith’s May 26 threat. It alleged that she fabricat-
ed evidence by: (1) asking coworkers to sign a blank statement;
(2) then fraudulently placing a statement before their names;
and (3) finally, submitting the statement to OHL, in order to
instigate Phil Smith’s discipline.
Carolyn Jones credibly testified that, after Phil Smith told
her to “watch her back,” she prepared a witness statement and
asked her coworkers to sign it. She indicated that the statement
was signed by Troy Hughlett, Annie Ingram, Kedric Smith, and
James Bailey, and, thereafter, was submitted to OHL. (See GC
Exhs. 10, 12–13, 57.)
Ingram testified that she signed Jones’ statement, which ac-
curately described the incident. She stated, however, that she
was later interviewed by Regional Human Resources Director
Young about the incident, who gave her a blank piece of paper
to sign. She stated that Young subsequently inserted text in
front of her signature to create a fraudulent statement against
Jones, which claimed that Jones gave her a blank statement to
sign. (See GC Exh 23.) I credit her testimony on these points.
Hughlett testified that, although he did not carefully review
Jones’ statement, it had text, beyond signatures. He said that he
trusted her account and did not need to carefully read it. He
acknowledged, however, that he subsequently signed another
statement, which indicated that he signed a blank statement for
Jones. He disavowed the truth of this second statement and
explained that he felt pressured into signing it after a lengthy
examination by OHL, and solely executed it in order to end his
interrogation. (See GC Exh. 18.) I credit his testimony on
these matters.
Bailey stated that Jones subsequently approached him and
asked him to sign a statement, which he did. (See also GC
Exhs. 19–20.) He indicated, however, that, on June 6, Young
summoned him to her office, and handed him a prepared state-
ment for his signature, which he signed without close inspec-
tion. (See GC Exh 21.) The June 6 statement provided:

James states that at the time he signed the paper was blank.
He [has] never seen or read Carolyn’s statement.

(Id.) He indicated that he signed the June 6 statement under
duress, which was prompted by OHL’s ongoing interrogations.
I credit his testimony on these points.
Kedric Smith stated that, after the incident, Jones gave him a
piece of paper that just had names on it, and asked him to sign
it. When asked, however, “was there anything written above
the signatures?” he responded;

I couldn’t tell you that because I—the only thing I focused on
was the names. I didn’t know that there was an actual state-
ment behind it for the simple fact that I had just seen the
names and just thought that it was a list of witnesses. So I
didn’t know that it was a statement on it.

(Tr. 1054.) I found his recall on these issues to be poor, and
afforded his testimony little weight.
In crediting Ingram’s, Hughlett’s, and Bailey’s testimonies, I
rely upon several factors. First, their demeanors were truthful.
Second, it is improbable that they would collectively invent a
tale that OHL fabricated evidence against Carolyn Jones, and
then risk its wrath by testifying against it, unless their accounts
were truthful. At the time of the hearing, they had neither been
disciplined, nor had they been identified as strong union advo-
cates. They, as a result, had everything to lose by providing
this testimony against OHL, and very little to gain. Their will-
ingness to accept this significant risk, without any obvious
evidence of benefit, enhances their credibility. Third, it is plau-
sible that, after lengthy interrogations by the human resources
department about a controversial matter involving the Union,
employees could easily be coerced into signing a statement of
their employer’s choosing. Lastly, their accounts are consistent
with the actions of an entity that has already expended tremen-
dous resources to combat the Union’s organizing drive.
4. Discharge reason #2—UT comments
a. UT Comments to Lee Smith
OHL accused Jones, who is African American, of calling
Lee Smith, an African American coworker, a “UT,” i.e., an
“Uncle Tom.”5 OHL’s Anti-Harassment Policy prohibits, inter
alia, harassment based upon race, color and other protected

5 It is undisputed that the phrase “Uncle Tom” is a racial epithet for a
person, who is excessively subservient to perceived authority figures,
and often is used to negatively describe African American persons, who
are believed to be behaving subserviently to Caucasian people.
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

characteristics. (R. Exh. 6.) Under the policy, harassment in-
cludes:

 Epithets, slurs or negative stereotyping;
 Threatening intimidating or hostiles acts;
 Denigrating jokes . . . .

(Id.) The OHL handbook sets forth a progressive disciplinary
procedure, which includes the following successive punish-
ments: verbal warning; written reprimand; suspension; and
termination. (GC Exh. 35.) The handbook further provides
that termination is warranted when:

In cases in which . . . [progressive discipline] has failed to cor-
rect unacceptable behavior or performance, or in which the
performance issue is so severe as to make continued employ-
ment with OHL undesirable . . . .

(Id.)
Jones denied calling Lee Smith a “UT.” (See also GC Exhs.
11, 13.) She did acknowledge, however, that the term is peri-
odically used at the facility amongst African American em-
ployees, and that she has said it before. Dotson testified that he
never witnessed Jones call Lee Smith a “UT.” (See GC Exhs.
24, 59.)
Lee Smith testified that Carolyn Jones called him a “UT”
several times during the spring of 2011, before he asked her on
May 17 what she meant. He said that, when she answered that
it meant “Uncle Tom,” he was deeply hurt. He stated that he
then reported her actions to human resources. He added that
she began calling him a “UT,” after he voiced his union opposi-
tion.
Jennifer Sims, another employee, recalled Lee Smith de-
scribing to her what occurred, when he asked Carolyn Jones
what “UT” meant. She recollected this dialogue:

He said that as he [left] . . ., Carolyn was already outside and
she called him UT again. And this time he turned and asked
her . . . what it meant. And she called him an Uncle Tom.
And he got upset. He was like what? And so he got ready to
walk away, and he turned back to her, and mentioned he
wasn’t an Uncle Tom, his faith isn’t in a company, his faith is
in God. . . . And he stormed away and told her . . . we have
nothing else to discuss . . . . And he got in his truck and left.
[Tr. 832.]

Because Lee Smith testified that Carolyn Jones called him a
“UT,” and Jones denied this statement, I must make a credibil-
ity determination. I credit Lee Smith; he was forthright and his
offense appeared genuine and lasting. It is implausible that he
would have concocted a story about this incident. Jones’ ad-
mitted willingness to use this racial epithet against others sug-
gests that she likely used this epithet against Lee Smith, given
his open opposition to the Union.
b. Other sexually and racially-oriented comments
(I) COMPARABLE CONDUCT RECEIVING DISCIPLINE
OHL’s records show that it meted out the following disci-
pline for comparable offenses:

Employee Date Incident Discipline
A. Burgess 1/25/2006 Usage of profanity
against a supervisor
Verbal Discus-
sion
B. Newberry 1/21/2010 Drew picture of
coworker calling her
“snitch #1”
Final Warning
S. Northing-
ton
4/12/2010 Called a coworker a
“silly bitch”
Written Warn-
ing
K. Hughes 7/2/2010 Inappropriate lan-
guage to a coworker.
Final Warning
H. Quarles 7/2/2010 Inappropriate lan-
guage to a coworker.
Final Warning
R. Williams 9/1/2010 Sexual harassment of
a subordinate
Written Perf.
Counseling
A. Burgess 9/27/2010 Profanity at cowork-
er, while pointing
pen at him.
Discharge
K. Hughes 11/8/2010 Usage of profanity to
coworkers
Three-day
suspension
J. Smith 6/9/2011 Calling a coworker a
“house nigger”
Final Warning
K. Hughes 8/26/2011 Told coworker that
he would “rip her
shirt off.”
Final Warning

(GC Exhs. 25, 27, 30, 77–79; R. Exh. 2, 21.)

(II) COMPARABLE CONDUCT NOT RECEIVING DISCIPLINE6
Jill McNeal, an African American employee, testified that,
Phil Smith, a Caucasian employee, referred to her as a “monkey
on a stick,” in front of Supervisor Steele. She related that this
comment prompted significant laughter. She indicated that she
did not report this racial slur to upper management because she
thought that it would be ignored. Rayford stated that she, and
most of her department, witnessed the incident. Phil Smith and
Steele denied the incident.
Carolyn Jones testified that, in 2009, at a group meeting, Phil
Smith called James Griffin a “faggot ass.” Undenise Martin,
another employee, corroborated this testimony. Phil Smith
denied calling Griffin this name.
I discredit Smith’s denials, and find that he used the epithets,
“monkey on a stick” and “faggot ass.” I found the testimonies
of McNeal, Rayford, Jones, and Martin to be reliable.
L. June 22—Confiscation of Union Materials
Rayford testified that, on June 22, she placed union organiz-
ing literature in the break area. She indicated that she later
observed Operations Supervisor Alfreda Owens confiscating
this literature.7 She stated that Owens solely confiscated the
Union materials and left the remaining literature (e.g. Avon
catalogs and newspapers) untouched. Herron corroborated her
testimony. I credit Rayford’s and Herron’s testimony; I found
each to be credible.

6 Carolyn Jones said that 95 percent of the work force is African
American and the usage of racial slurs, e.g., nigger, is commonplace.
7 OHL’s counsel credibly explained that Owens was subsequently
fired, and that he was unable to subpoena her to attend hearing. (Tr.
1349.) He contended, as a result, that he was unable to rebut this testi-
mony.
OZBURN-HESSEY LOGISTICS, LLC 1035

M. June 28—Captive-Audience Meeting
Jennifer Smith testified that, on June 28, OHL conducted an-
other captive-audience meeting, where Karen White, Coleman,
Phil Smith, and Young addressed 40 employees. She stated
that White advocated against unionizing. She related that
Coleman told employees that the Union was solely interested in
their dues and would prompt a strike. She recalled that Tondra
Mitchell commented that, if the union supporters were so un-
happy, they should seek other employment. She stated that Phil
Smith replied, “[E]xactly, that’s what I’m talking about,” and
that Young fell over laughing. Childress and Jerry Smith cor-
roborated her account.
Phil Smith stated that, when Mitchell asked whether union
supporters should resign, he replied that “I can’t answer that
question.” He denied encouraging anyone to resign.
Mitchell testified that, when she asked Phil Smith that, if
employees were so unhappy, why don’t they just leave, he sole-
ly responded that he could not answer the question. She did not
recall Young laughing. Coleman testified that he recalled
Mitchell’s question, but, recollected Phil Smith responding that
she should ask the employees. He added that he did not recall
Phil Smith saying, “[m]y point exactly.” He indicated that he
thought that he would have remembered such a comment, if it
was said. White recalled Mitchell’s query, but, stated that Phil
Smith told her to ask employees that question. She denied that
he responded, “[m]y point exactly.” Young testified that she
generally recalled Mitchell’s statement, but, did not remember
any manager’s response, and denied falling down laughing.
I credit Jennifer Smith, Childress, and Jerry Smith, who were
highly credible, over OHL’s witnesses. As stated, I found Phil
Smith and Coleman to be less than credible.
N. July 14—Captive-Audience Meeting
Hughes testified that, on July 14, he attended a captive-
audience meeting in the Hewlett Packard break area, which was
conducted by White and Phil Smith. He recalled that this meet-
ing focused on the salaries of the Union’s staff. He added that,
when he asked White what her salary was, she became irate and
called him a “rabble rouser,” and Phil Smith told him to “shut
up.” He recollected that, when he asked Phil Smith what he
was going to do, Smith answered, “I’m going to get you on
subordination and get you out of here.” He averred that he then
told Smith that it was an open meeting and threats were inap-
propriate.
Phil Smith testified that, during White’s presentation,
Hughes posed an unending string of questions and intentionally
interrupted her. He stated that, when he politely asked him to
stop, Hughes asked him whether he was going to take him out-
side. He indicated that he then replied that he would address
the matter through OHL’s disciplinary system. I credit Hughes,
a highly credible witness, over Phil Smith, a witness with di-
minished credibility.
III. ANALYSIS
A. Independent 8(a)(1) Allegations
1. Interrogation8
OHL unlawfully interrogated employees. On May 11,
Wright summoned Shorter to her office and asked whether
Rayford was talking to her about the Union during working
time. On June 3, Senior Employee Relations Manager Miles
asked Kedric Smith, an employee, whether union advocate
Carolyn Jones solicited him to support the Union during work-
ing time.
In Westwood Healthcare Center, 330 NLRB 935 (2000), the
Board held that the following factors determine whether an
interrogation is unlawful:

(1) The background, i.e. is there a history of employer hostili-
ty and discrimination?
(2) The nature of the information sought, e.g., did the interro-
gator appear to be seeking information on which to base tak-
ing action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the
company hierarchy?
(4) Place and method of interrogation, e.g. was employee
called from work to the boss’s office? Was there an atmos-
phere of unnatural formality?
(5) Truthfulness of the reply.

Id. at 939. In applying these factors, however, the Board con-
cluded that:

In the final analysis, our task is to determine whether under all
the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he
or she would feel restrained from exercising rights protected
by Section 7 of the Act.

Id. at 940.

For several reasons, I find that Wright and Miles committed
unlawful interrogations. First, there is an extensive history of
union hostility, as demonstrated by the instant case, Ozburn I,
and Ozburn II. Second, both Wright and Miles appeared to be
asking questions, in order to assess whether OHL could disci-
pline union advocates Rayford and Carolyn Jones for matters
connected to their union activities. Third, both Miles and
Wright are significantly higher in the corporate hierarchy than
the interrogated employees. Lastly, the questioning took place
in the human resource department’s offices, as opposed to the
warehouse floor, which likely amplified the intimidation level.
2. Surveillance9
OHL engaged in unlawful surveillance. On May 25, Cole-
man and McNamee observed Carolyn Jones, Dotson, and Jerry
Smith distribute union organizing materials to employees.
An employer violates Section 8(a)(1), when it “surveils em-
ployees engaged in Section 7 activity by observing them in a

8 These allegations are listed under pars. 9(a), 11, and 14 of the
complaint.
9 This allegation is listed under pars. 10 and 14 of the complaint.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

way that is ‘out of the ordinary’ and thereby coercive.” Alad-
din Gaming LLC, 345 NLRB 585, 586 (2005). Indicia of coer-
civeness, include the “duration of the observation, the employ-
er’s distance from its employees while observing them, and
whether the employer engaged in other coercive behavior dur-
ing its observation.” Id.
Both Coleman and McNamee observed union organizers dis-
tribute leaflets to employees on May 25. Their observation
lasted several minutes, took place from a close vantage point,
was out of the ordinary,10 and likely dissuaded several employ-
ees from interacting with the Union’s organizers, out of fear of
reprisal. Such activity violated the Act.
3. Impression of surveillance11
OHL unlawfully created the impression that employees’ un-
ion activities were under surveillance. On May 11, Wright told
Shorter that she knew that Rayford was soliciting her on behalf
of the Union.
An employer creates an unlawful impression of surveillance,
when reasonable employees would assume that their union
activities have been monitored. Stevens Creek Chrysler, 353
NLRB 1294, 1295–1296 (2009). Where an employer tells em-
ployees that it knows about their union activities but fails to cite
its information source, Section 8(a)(1) is violated because em-
ployees are left to speculate about how such information was
obtained and assume that surveillance occurred. (Id. at 1296.)
If an employer tells employees that it learned of their union
activities from a specific employee, such comments are gener-
ally lawful, and do not lead one to assume that surveillance has
occurred. Park ‘N Fly Inc., 349 NLRB 132, 133 (2007).
Wright commented that OHL knew that Shorter and Rayford
were discussing union affairs at the facility, but, failed to iden-
tify her informant. This statement, as a result, left Shorter to
speculate about OHL’s information source and reasonably con-
clude that it was monitoring their discussions; and, accordingly,
created an unlawful impression of surveillance.
4. Confiscation of union materials12
OHL violated the Act, when it confiscated union materials.
Phil Smith, Nelson, and Owens confiscated union materials
from break areas. Employees generally have the Section 7 right
to possess union materials at work, absent evidence that their
employer restricts possession of other personal items, or that
possession of union materials interferes with production or
discipline. Brooklyn Hospital-Caledonian Hospital, 302 NLRB
785, 785 fn. 3 (1991). An employer, thus, violates the Act by
confiscating union literature and materials from employees.
Ozburn I, supra; Brooklyn Hospital-Caledonian Hospital, su-
pra. Given that there is no evidence that OHL restricted the
possession of other personal items, or that the union materials
at issue interfered with production or discipline, OHL’s repeat-
ed confiscation was unlawful.

10 It was more than coincidental that McNamee appeared just as the
leafleting began, and Coleman appeared immediately after McNamee
left.
11 This allegation is listed under pars. 9(b) and 14 of the complaint.
12 These allegations are listed under pars. 7(a), 8, 12, and 14 of the
complaint.
5. Telling union supporters to resign13
OHL violated the Act, when it told union supporters to re-
sign. At a June 28 meeting, an employee posed the question
that, if union supporters were so unhappy, why didn’t they just
quit? When Phil Smith replied, “[m]y point exactly,” he invit-
ed union supporters to quit, which was unlawful. See, e.g.,
Solvay Ironworks, 341 NLRB 208 (2004).
6. Threats14
OHL violated the Act, when Phil Smith threatened employ-
ees. On April 29, he threatened Hughes, when he hovered over
him for 15 minutes, in response to his questions about union
issues, and warned that “I got something for him.” See F. W.
Woolworth Co., 251 NLRB 1111, 1112–1113 (1980) (conduct
is protected, ever where employee repeatedly and loudly insists
upon speaking at a captive-audience meeting, in contravention
of a direct order to cease and desist). On May 26, he threatened
Carolyn Jones, when he responded to her commentary about a
captive-audience meeting by stating that “she better watch her
back.” See Jordan Marsh Stores Corp., 317 NLRB 460, 462–
463 (1995); Trover Clinic, 280 NLRB 6 fn. 1 (1986) (“keep a
low profile” and “be quiet about it”); Union National Bank, 276
NLRB 84, 88 (1985) (“watch yourself”). On July 14, at a cap-
tive-audience meeting, Hughes responded to a presentation
about union staff salaries, by asking White her salary, which
prompted Phil Smith to threaten disciplinary action. See F. W.
Woolworth, supra.
B. The 8(a)(3) Allegations15
OHL violated Section 8(a)(3), by issuing a final warning to
Jennifer Smith and firing Carolyn Jones. The framework set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), is the
appropriate standard:

Under that test, the General Counsel must prove by a prepon-
derance of the evidence that union animus was a substantial or
motivating factor in the [discharge]. The elements commonly
required to support such a showing are union or protected
concerted activity by the employee, employer knowledge of
that activity, and union animus on the part of the employer.

If the General Counsel makes the required initial showing, the
burden then shifts to the employer to prove, as an affirmative
defense, that it would have taken the same action even in the
absence of the employee’s union activity. To establish this af-
firmative defense, “[a]n employer cannot simply present a le-
gitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected activity.”

Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007) (cita-
tions omitted).
To meet this burden, “an employer cannot simply present a

13 This allegation is listed under pars. 7(d) and 14 of the complaint.
14 These allegations are listed under pars. 7(b), (c), and (e), and 14 of
the complaint.
15 These allegations are listed under pars. 13 and 15 of the com-
plaint.
OZBURN-HESSEY LOGISTICS, LLC 1037

legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, 332 NLRB 1363, 1366 (2000). If the employer’s
proffered defenses are found to be a pretext, i.e., the reasons
given for its actions are either false or not, in fact, relied on, the
employer fails by definition to show that it would have taken
the same action for those reasons, and there is no need to per-
form the second part of the Wright Line analysis. On the other
hand, further analysis is required if the defense is one of “dual
motivation,” that is, the employer defends that, even if an inva-
lid reason might have played some part in the employer’s moti-
vation, it would have taken the same action against the employ-
ee for permissible reasons. Palace Sports & Entertainment,
Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
1. Jennifer Smith’s final warning
OHL violated the Act, when it issued Jennifer Smith a final
warning. The record demonstrates that she engaged in substan-
tial union activity,16 which was known to OHL.17 The record
reveals strong evidence of animus, which includes the meritori-
ous interrogation, surveillance, impression of surveillance,
threat, and confiscation of union literature allegations. An
inference of animus can also be gleaned from the false rationale
that OHL proffered for Smith’s final warning, i.e., that she
called Stacey Williams a “house nigger.”18 See Electronic
Data Systems Corp., 305 NLRB 219 (1991) (false discharge
reasons demonstrate animus).
I find, therefore, that counsel for the Acting General Counsel
has proven that: Jennifer Smith engaged in union activity; OHL
was aware of such activity; and union animus was a “substan-
tial or motivating factor” behind the final warning. According-
ly, he has met his initial burden of persuasion under Wright
Line.
Given that I previously found that Jennifer Smith did not
commit workplace crime that gave rise to her final written
warning (i.e., calling Stacey Williams the alleged epithet), as
well as my consideration of the many factors that led me to find
animus and knowledge, I conclude that OHL’s proffered reason
was a mere pretext and that antiunion animus motivated its
actions. Accordingly, no further analysis of its defenses is
necessary for, as the Board stated in Rood Trucking Co., 342
NLRB 895, 898 (2004):

A finding of pretext defeats any attempt by the Respondent to
show that it would have discharged the discriminatees absent
their union activities. This is because where “the evidence es-
tablishes that the reasons given for the Respondent’s actions
are pretextual—that is, either false or not in fact relied upon—
the Respondent fails by definition to show that it would have
taken the same action for those reasons, absent the protected
conduct, and thus there is no need to perform the second part

16 As noted, she distributed union handbills and literature, openly
encouraged coworkers to support the Union, previously testified on
behalf of the Union, collected 50 signed union authorization cards, and
wore union stickers, buttons, hats, and shirts.
17 See GC Exh. 36; Tr. 475.
18 As stated, I fully credit her denial of this allegation.
of the Wright Line analysis.” Golden State Foods Corp., 340
NLRB 382, 385 (2003).
2. Carolyn Jones’ discharge
OHL violated the Act, when it fired Carolyn Jones. The rec-
ord demonstrates that she engaged in substantial union activi-
ty,19 which was known to OHL.20 There is also extensive evi-
dence of animus, which includes the 8(a)(1) violations found
herein, and Jennifer Smith’s unlawful discipline. I also note
that animus can be gleaned from the close timing between
Jones’ discharge and the filing of the Union’s election petition,
which both occurred on the same date. See Adco Electric, 307
NLRB 1113, 1123 (1992), enfg. 6 F.3d 1110 (5th Cir. 1993)
(suspicious timing supports an inference of animus).
Thus, I find that counsel for the Acting General Counsel has
proven that: Carolyn Jones engaged in union activity; OHL
knew of such activity; and union animus was a “substantial or
motivating factor” behind her firing. Accordingly, he has met
his initial burden of persuasion under Wright Line, and I will
now consider the alleged discharge reasons.
OHL’s asserted discharge reasons are pretextual. It ad-
vanced two independent reasons, in support of Jones’ dis-
charge: fabrication of evidence; and violation of its racial har-
assment policy.
OHL’s allegation that Carolyn Jones fabricated evidence
connected to the altercation between her and Phil Smith on
May 26 was pretextual. As discussed, it accused Carolyn Jones
of fabricating a witness statement, which alleged that Phil
Smith threatened her to “watch her back.” First, the majority of
the witnesses stated that they signed a witness statement that
had text above their signatures, although they admittedly had a
poor recall of the statement’s contents; this deeply undercuts
the fabrication allegation. These witnesses also credibly stated
that OHL was so zealous in its pursuit of Carolyn Jones that it
actually coerced them into signing false statements. Second,
Phil Smith threatened Carolyn Jones in the manner described
by her statement. Third, the statement does not appear to have
been created after the fact, given that the signatures are located
immediately after the text and about a third of the way down
the page. I find it implausible that Jones created an after-the-
fact statement, and correctly predicted where witness signatures
would ultimately fit. Lastly, if OHL were genuinely motivated
to address concerns about false statements, it would have also
disciplined Phil Smith, who falsely denied threatening Carolyn
Jones, and committed a more serious transgression.21 Based
upon the foregoing, I find that this discharge reason was pre-
textual.
OHL’s assertion that Carolyn Jones’ “UT” comments served
as an independent basis for her termination is also pretextual.
Although I find that Jones made the comments at issue, OHL

19 Since the inception of the Union’s organizing drive, Jones has dis-
tributed handbills and union organizing materials, solicited coworkers
to sign authorizations cards, attended union meetings, spoke on behalf
of the Union at OHL’s captive-audience meetings, and obtained rough-
ly 80 signed union authorization cards.
20 See GC Exhs. 7–9; Tr. 58.
21 As noted, several independent employee witnesses agreed that he
threatened Jones.
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

addressed this offense much more severely than prior similar
offenses; such disparate treatment demonstrates pretext. Spe-
cifically, in the 10 prior disciplinary actions involving profanity
and racial epithets, OHL issued 8 warnings, a suspension, and a
discharge; with the suspension arising from recidivism, and the
discharge arising from both recidivism and a connected assault.
In this case, Jones was neither a recidivist nor did she commit
an assault. If OHL genuinely wanted to discipline her consist-
ently, her misconduct would have generated the same warning
that it uniformly issued to others.22 See La Gloria Oil & Gas
Co., 337 NLRB 1120, 1124 (2002) (disparate disciplinary
treatment demonstrates pretext). Second, Carolyn Jones’ firing
is deeply inconsistent with OHL’s willingness to completely
overlook the several grossly offensive statements made by Phil
Smith, a high-level supervisor, to subordinate employees.23
Lastly, OHL’s decision to terminate Carolyn Jones for this
offense deviated from its progressive disciplinary system,
which sets forth a lesser penalty for her violation, and allegedly
espouses the merits of rehabilitation. (GC Exh. 35.)
I find, as a result, that its proffered reasons for Jones’ dis-
charge were mere pretexts and that antiunion animus motivated
its actions. Accordingly, no further analysis of OHL’s defenses
is necessary. Rood Trucking Co., supra at 898.
IV. REPRESENTATION CASE
A. Petition and Stipulated Election Agreement
On June 14, in Case 26–RC–008635, the Union filed an RC
Petition seeking to represent OHL’s employees. (U. Exh. 14.)
On June 23, the parties entered into a Stipulated Election
Agreement, whereby they agreed to allow the Board to conduct
an election in the following unit:

INCLUDED: All full time custodians, customer service rep-
resentatives, senior customer service representatives, cycle
counters, inventory specialists, maintenance, maintenance
techs, material handlers, operators 1, operators 2, operates 3,
quality assurance coordinators, returns debts, and team leads
employed by the Employer at [the facility].

EXCLUDED: All other employe[e]s,24 including, office cler-

22 In an effort to respond to the disparate treatment allegation, OHL
offered several examples of workplace misconduct, which prompted
immediate firings. These example were, however, vastly more severe
than Carolyn Jones’ transgression, and, thus, not comparable. (See R.
Exhs. 32–33 workplace violence, theft of time, and sexually explicit
misconduct).
23 Without disciplinary consequences, and in front of several wit-
nesses, Phil Smith brazenly called an African American worker a
“monkey on a stick,” and another employee a “faggot ass.”
24 Contrary to OHL’s position in its brief (see R. Br. at 43 fn. 19), I
find that, although the stipulated election agreement, states under the
unit exclusion paragraph, “[a]ll other employers,” this is a typograph-
ical error and the parties clearly excluded, “all other employees.” (U.
Exh. 13.) First, excluding other “employers” from a unit of OHL em-
ployees is absurd. Second, the subsequent usage of the phrase, “office
clerical and professional employees, guards and supervisors” as exam-
ples of excluded personnel indisputably clarifies that the parties’ meant
to say “employees,” as opposed to “employers.” Lastly, if OHL truly
believed that the exclusion was supposed to say something other than
ical and professional employees, guards, and supervisors as
defined in the Act.

(U Exh. 13.) As an addendum to the agreement, the parties
agreed that:

[T]he job classification of Administrative Assistant is in dis-
pute and [will not be] place[d] in the inclusions or the exclu-
sions of the Stipulated Election Agreement . . . . [T]he two
administrative assistants Tia Harris and Rachel Maxie will
vote subject to challenge by the Union . . . . If the challenged
ballots . . . are determinative to the outcome of the election,
the parties have agreed to resolve the matter in a post-election
hearing. [U. Exh. 13A.]
B. Second Election
On July 27, the Board held an election, which the Union won
by a single vote. The tally provided:

Category Quantity
Approximate number of eligible voters 347
Number of votes cast for the Union 165
Number of votes cast against the Union 164
Number of challenged ballots 14

(U. Exh. 23.)

C. Union Objections25
On August 3, the Union filed 20 objections to OHL’s con-
duct during the critical period preceding the second election,
i.e., the period between the first election on March 16, 2010,
and the second election on July 27.26 (GC Exh 1(q).) Many of
these objections duplicated the complaint allegations, which I
have already found unlawful. The parties presented argument
concerning these objections in their posthearing briefs.
1. Objection 1
Objection 1 alleged that OHL engaged in unlawful surveil-
lance of union activities, in the manner described by the com-
plaint. Given that I have found these allegations unlawful, this
objection is valid.
2. Objection 2
Objection 2 alleged that OHL unlawfully interrogated em-
ployees. The Union contended that this objection was based
upon the complaint’s interrogation allegations, which I have
found unlawful. Accordingly, I find merit to this objection.
3. Objection 3
Objection 3 alleged that OHL issued Jennifer Smith a written
warning, in retaliation for her union activities. Given that I
have found the warning to be unlawful, this objection is valid.
4. Objection 4
Objection 4 alleged that OHL conducted captive audience
meetings within 24 hours of the election. This objection fo-

“employees,” it would have explained why it meant to say “employ-
ers.”
25 At the hearing, the Union withdrew Objection 7. (Tr. 1603.)
26 Star Kist Caribe, Inc., 325 NLRB 304 (1998) (second critical pe-
riod runs from first election to second).
OZBURN-HESSEY LOGISTICS, LLC 1039

cused on an alleged meeting between Senior Human Resources
Coordinator Melissa Castillo and three employees within 24
hours of the election.
Glorina Kurtycz testified that, within hours of the election,
she saw Castillo meeting with three employees in the break
area. She stated that Castillo asked her for a sample ballot,
which she declined to provide. Castillo testified that she at-
tended the election, in order to offer translation for Spanish-
speaking employees, but, did not recall speaking to the three
employees at issue.
In general, the Board has held that employers and unions are
prohibited from “making election speeches on company time to
massed assemblies of employees within 24 hours before the
scheduled time for conducting an election.” Peerless Plywood,
107 NLRB 427 (1953). The Board has held, however, that this
24-hour rule “was not intended to . . . prohibit every minor
conversation between a few employees and a union agent or
supervisor for a 24-hour period before an election.” Business
Aviation, Inc., 202 NLRB 1025 (1973). The Board has, as a
result, explained that the rule does not prohibit employers and
unions from making campaign speeches during the 24-hour
period, if employee attendance is voluntary and on their own
time. Foxwoods Resort Casino, 352 NLRB 771, 771, 780–781
(2008).
Even assuming arguendo that Kurtycz is fully credited, the
Union failed to offer sufficient evidence regarding the sub-
stance of Castillo’s discussion, or address whether employees
voluntarily initiated the conversation on their own time. The
Union has not, consequently, demonstrated that this meeting
violated Peerless Plywood, and this objection is overruled.
5. Objection 5
Objection 5 alleged that OHL stated that, it would “bargain
from scratch.” Jerry Smith credibly testified that, at a June 28
meeting, Coleman made this statement:

There’s no guarantee that [I] can . . . get Mr. Brennan to sign a
guarantee for benefits . . . . [W]hen you get to the bargaining
table you have to start from scratch. And even though you
bargain from scratch, you could already lose what you already
have.

(Tr. 618.) Coleman denied these statements, and White failed
to recall the specific meeting.

As a threshold matter, I credit Jerry Smith, who was a be-
lievable and straightforward witness, with a strong recall, over
Coleman, who was less than credible. I also found Coleman’s
recollection of the relevant events to be poor. White’s testimo-
ny about this issue was too general to be afforded much, if any,
weight.
The Board and courts have held that, barring outright threats
to refuse to bargain in good faith with an incoming union, the
legality of any particular statement depends upon its context.
See Somerset Welding & Steel, Inc., 314 NLRB 829, 832
(1994). Statements made in a coercive context, or designed to
threaten employees that existing benefits will be lost if they
unionize are unlawful, inasmuch as they, “leave employees
with the impression that what they may ultimately receive de-
pends upon what the union can induce the employer to restore.”
Earthgrains Co., 336 NLRB 1119, 1119–1120 (2001). The
Board has, as a result, found that statements analogous to those
at issue herein were lawful in certain contexts, while unlawful
in others. See, e.g., Jefferson Smurfit Corp., 325 NLRB 280 fn.
3 (1998) (telling employees that benefits “could go either way”
as a result of collective bargaining was lawful); Earthgrains
Co., supra (statement that everything was negotiable once the
union was voted in was unlawful in the context of prior threats
to withhold planned wage increases); Noah’s Bay Area Bagels,
LLC, 331 NLRB 188, 189 (2000) (statements that negotiations
would start from “scratch” were unlawful in the context of
other unfair labor practices).
Given the many valid unfair labor practices and objections
present herein, Coleman’s comments unlawfully conveyed that
employees would only achieve in bargaining “what the Union
could induce the employer to restore.” This objection, as a
result, is sustained.
6. Objection 6
Objection 6 alleged that OHL confiscated union literature
from break areas. Given that I have already found this allega-
tion to be valid, this objection is sustained.
7. Objection 8
Objection 8 alleged that OHL aided employee union opposi-
tion by distributing antiunion T-shirts. The Union contended
that such actions placed “employees in a position of having to
make an observable choice that would reveal [their Union sen-
timents].” (U. Br. at 17.)
Jerry Smith credibly testified that, a week before the elec-
tion, he observed a man loading boxes of lime green T-shirts
bearing the slogan, “no means no,” into Human Resources
Manager Young’s vehicle. Rayford credibly testified that,
before the election, she observed Operations Supervisor Phil-
lips distribute a bright blue, “I can speak for myself and no
means no,” T-shirt to Eric Collins, a coworker, by the lockers.
She stated that she also saw a box of lime green, “no means
no,” shirts in Supervisor Owens’ office, and saw her giving
shirts to two coworkers. Such testimony was corroborated by
considerable evidence of employees wearing these shirts in the
facility. Given that I previously found Jerry Smith and Rayford
to be highly credible, I credit their testimony on these issues. I
also note that Owens was unavailable to testify to refute their
accounts.
The Board has held that offering employees “vote no” but-
tons, T-shirts, or other paraphernalia is tantamount to an unlaw-
ful interrogation, inasmuch as it forces them to make an open
declaration either for or against the Union. See Houston Coca
Cola Bottling Co., 256 NLRB 520 (1981). This objection is,
accordingly, sustained.
8. Objections 9 and 11
Objection 9 alleged that OHL, “threatened . . . employees
because of their Union activities.” Objection 11 averred that
OHL, “[t]hreatened employees with plant closure, reduction of
work or relocation if the Union won.” The Union asserted that
these objections were based upon OHL’s threats that it would
lose customers, if employees unionized.
McNeal testified that she was told, at a captive-audience
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

meeting, that the Fiskars account would “pull out,” if employ-
ees unionized. Although she related that such meetings were
attended by Phil Smith, Coleman, and White, she did not identi-
fy who made the statement, or confirm that this statement was
not employee-generated. She also indicated that Phil Smith
stated that Hewlett Packard would withdraw, if employees un-
ionized, but, similarly failed to offer much detail about the
comment. I, therefore, afford her testimony concerning these
statements little, if any, weight. Jerry Smith credibly testified
that, at a June 28 meeting, Tammy Stewart asked White wheth-
er OHL would lose clients if it unionized, and that White solely
responded that certain accounts have not, to date, renewed their
contracts. He recollected that Phil Smith added that contract
renewal rests within the customer’s sole discretion.
It is well settled that employer predictions of adverse conse-
quences arising from sources outside its control are required to
have an objective factual basis in order to be found lawful.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617–619 (1969). In
the instant case, I find that White accurately conveyed that
certain clients had not yet renewed their contracts, and Phil
Smith truthfully added that customers retained the final deci-
sion on contract renewal. These statements were, thus, reason-
able and these objections should be overruled.
9. Objection 10
Objection 10 alleged that OHL, “[c]reated the impression of
futility of selecting the Union.” This objection was based upon
OHL telling employees that discriminatees Kurtycz, Dotson,
and Jerry Smith had been only temporarily reinstated. Such
commentary was technically true at the time, given that the
injunction stated that it was “temporary,” until such time as the
Board issued its final order. (GC Exh. 4.) This objection, thus,
lacks merit.
10. Objection 12
Objection 12 alleged that OHL threatened that employees
would lose benefits, if they unionized. This objection was
based upon OHL’s comments about the 410(k) plan.
Jerry Smith credibly testified that he attended a meeting,
where Human Resources Representative Dani Bowers told
employees that they could not participate in the 401(k) plan, if
they unionized.27 Rayford corroborated this testimony, which
Bowers was not called to refute. I, therefore, credit Jerry
Smith’s unrebutted and corroborated testimony.
A company commits objectionable conduct, when it threat-
ens that employees will “be foreclosed from participating in
their current company pension [or retirement] plan,” if they
unionize. Longview Fibre Paper & Packaging, 356 NLRB 796
(2011). Bowers’ comments were, as a result, objectionable.
11. Objection 13
Objection 13 alleged that OHL unlawfully fired Carolyn
Jones, Stanley Jones, and Vicky Hodges, because of their union
activities.28 Given that I found that Carolyn Jones’ discharge

27 I denied OHL’s objection that this testimony was inadmissible
hearsay. See Fed.R.Evid. 801(d)(2) (agent’s admissions are not hear-
say).
28 No evidence was presented regarding Stanley Jones or Hodges;
was unlawful, this component of the objection is valid.
12. Objection 14
Objection 14 alleged that OHL solicited union supporters to
resign. Given that I found that this complaint allegation was
unlawful, this objection is valid.
13. Objection 15
Objection 15 alleged that OHL told employees that, “they
would be permanently . . . replaced, and will not be eligible for
food stamps when the union called them out on strike.” The
Union filed to adduce any evidence supporting this objection;
therefore, it is denied.
14. Objection 16
Objection 16 alleged that OHL “violated the stipulated
agreement on . . . releasing of voters.” Union Organizer Ben
Brandon testified that, although the agreement contained a de-
tailed release procedure, it was inconsistently followed and
resulted in one department being released to vote prematurely
and another released belatedly. Given that affected employees
still voted, these isolated issues were de minimis, and not ob-
jectionable.
15. Objection 17
Objection 17 alleged that OHL “escort[ed] . . . discrimi-
natees to the polls.” Brandon testified that, while he did not
directly observe discriminatees being escorted to the polls by
security officers, he observed Carolyn Jones being admitted to
the facility by security. This testimony, although credible, was
insufficient to substantiate this objection.
16. Objections 18 and 20
Objection 18 alleged that OHL “created and condone[d] a
hostile environment,” while Objection 20 alleged that OHL,
“engaged in other conduct for which the election should be set
aside.” Given that I have already found that several objections
were valid, these catchall objections, although duplicative, are
legitimate.
17. Objection 19
Objection 19 alleged that OHL destroyed the laboratory con-
ditions of the election by allowing administrative assistants to
vote. This issue will be considered under the Challenged Bal-
lots section, and is not objectionable.
D. OHL’s Objections
On August 3, OHL filed 13 objections to the Union’s pre-
election conduct. (GC Exh 1(q).) The parties presented con-
nected argument in their posthearing briefs.
1. Objections 1 and 2
Objection 1 alleged that the Union made, “inappropriate and
inflammatory appeals to racial prejudice; whereas, objection 2
alleged that the Union made, “inappropriate and inflammatory
appeals to violence.” As will be discussed, these objections are
meritless.

therefore, I find no merit to these allegations.
OZBURN-HESSEY LOGISTICS, LLC 1041

a. Inflammatory leaflet
In support of these objections, OHL cites an exhibit (R. Exh.
20), which was not offered at the hearing (see R. Br. at 45; Tr.
1201–1203), and a hearsay statement that an unnamed employ-
ee told White that the unoffered exhibit was distributed in the
parking lot by anonymous individuals. Simply put, OHL whol-
ly failed to substantiate this allegation.
b. “UT” comments
Although Respondent failed to raise this issue in its brief, I
note that I did find that Carolyn Jones called Lee Smith a “UT,”
in response to his failure to support the Union. There is, how-
ever, insufficient evidence that this statement was disseminated
beyond two other voters, who had already taken a strong posi-
tion on the election (i.e., Jerry Smith, a staunch union support-
er, and Jennifer Sims, a staunch OHL supporter). I find, as a
result, that the “UT” comments were insufficient to affect the
outcome of the election and not objectionable.
c. Hughes’ comments
Operations Manager Vania Washington testified that, a week
before the election, she heard Hughes ask Michael Guy whether
he had “heard what Coleman had said during a meeting?” She
said that Hughes then told him that Coleman had called union
supporters, “robbers and killers.”
Operations Manager James Cousino testified that, at a cap-
tive-audience meeting, Coleman read aloud a newspaper article
concerning a labor dispute at another company, which involved
violence. He related that, after the meeting, he heard Hughes
state that Coleman had implied that OHL’s employees were
“thugs, gangbangers and killers.” On cross-examination, how-
ever, Cousino acknowledged that the article read by Coleman
described the involved union representatives as “gangbangers,
thugs and killers.” He surprisingly denied, however, that
Coleman intentionally drew a connection between the Union
involved herein and the “gangbangers, thugs, and killers” de-
scribed by the article. He stated that, once he told Hughes to
stop discussing the matter, he complied.
Hughes’ comments were reasonable and responded to an ar-
ticle raised by Coleman at a captive audience meeting. OHL
was obviously trying to draw a connection between the Union
and the “gangbangers, thugs and killers” described by the arti-
cle, in order to dissuade employees from unionizing and associ-
ating with alleged thugs. Hughes challenged this assertion in a
reasonable way, and his commentary, which was isolated, was
not objectionable.29
2. Objections 3, 4, and 9
Objections 3, 4, and 9 alleged that the Union’s election ob-
servers and release personnel engaged in inappropriate elec-
tioneering. Bobby Hill, an employee and OHL observer, testi-
fied that, on July 27, he and the Union’s observer released em-
ployees to vote. He indicated that, at some point, a voter told
the Union’s observer that “it didn’t take me but 15 seconds to
know how to vote,” and that the Union’s observer responded

29 It is also debatable whether Hughes, a union supporter, was a un-
ion agent.
that he did the right thing, and offered him a “high five.” He
acknowledged, however, that this conversation was not wit-
nessed by anyone, who had not yet voted.
I do not find that this postvote conversation was improper
electioneering, which, by definition, needs to occur before
votes are cast. These objections are, accordingly, overruled.
3. Objections 5, 6, 8, and 12
Objection 5 alleged that the Union issued, “[i]nappropriate
instructions to employees not to vote.” Objection 6 alleged that
the Union “[told] employees that they were required to vote for
the Union if they signed an authorization card.” Objection 8
alleged that the Union, “[w]alk[ed] into unauthorized areas . . .
to campaign to working employees on election day.” Objection
12 alleged that the “Union observer display[ed] union insignia
at [the] polling location by removing tape covering insignia
before [the] polls closed.” OHL failed to adduce any evidence
supporting these objections, or raise these matters in its post-
hearing brief. These objections are, therefore, denied.
4. Objections 7, 10, and 11
Objections 7, 10, and 11 alleged that the Union unlawfully
threatened pro-OHL employees with reprisals. Dawn Barnhill,
an employee, testified that in July, Hughes observed her wear-
ing a shirt, which stated “no means no, and I can speak for my-
self,” and threatened to rip it off of her. She stated that she
reported the incident to her supervisor, Cousino, who con-
firmed her account. Hughes consequently received a final
warning.
These objections are invalid. First, as noted, there is no evi-
dence that Hughes is a union agent. Second, there is no evi-
dence that his actions, which were isolated, were adopted by
the Union or disseminated in a manner that would affect the
election. Lastly, his actions were mitigated by OHL, when it
disciplined him and erased any potential effect on voters.
5. Objection 13
Objection 13, a catchall objection, alleged that the Union,
“[e]ngaged in conduct that interfered with employee free
choice.” Given that OHL’s other objections were invalid, this
objection is similarly overruled.
E. Challenged Ballots
The 10 challenged ballots are described below:30

Employee Challenged
By
Reason
Gloria Kurtycz Company Board Reinstate-
ment
Brenda Stewart Union Supervisor
James Brewer Union Retired Part-time
Jerry Smith Company Board reinstate-
ment
Carolyn Jones Board Not on list

30 At the hearing, the parties agreed that 3 additional voided ballots
were “properly challenged . . . either because they were unclear or
identified the voter.” (Tr. 1701.) They also stipulated that challenge of
Vicky Hodge’s ballot was valid. (GC Exh. 1(q) at 2.)
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Renal Dotson Company Board reinstate-
ment
Rachel Maxie-
Chaisson
Union Administrative
Assistant
Tammy Stewart Union Management
Tia Harris Union Management
Richard James Union Part-time
(GC Exh. 1(aa).)
1. Prior discriminatees: Kurtycz, Jerry Smith, and
Renal Dotson
The Board affirmed the administrative law judges’ decisions
to reinstate Kurtycz, Jerry Smith, and Renal Dotson. See
Ozburn I, supra; Ozburn II, supra. Their challenges were,
therefore, invalid, and their ballots should be counted.
2. Carolyn Jones
Given that OHL unlawfully fired Jones and reinstatement is
appropriate, her challenge was invalid, and her ballot should be
counted.
3. Part-time employees: Richard James and James Brewer
The Union challenged their ballots, and contended that they
are part-time employees, who were expressly excluded by the
Stipulated Election Agreement. OHL avers that the Agreement
is ambiguous regarding their exclusion, they share a community
of interest with the unit, and their challenges were, accordingly,
inappropriate.

The Stipulated Election Agreement provided:

INCLUDED: All full time custodians, . . . maintenance,
maintenance techs, . . . employed by the Employer.

EXCLUDED: All other employe[e]s, including, office cleri-
cal and professional employees, guards, and supervisors as
defined in the Act.

(U. Exh. 13) (emphasis added). James and Brewer testified that
they are part-time maintenance employees, who work 15 to 18
hours per week. They do not receive the health insurance, den-
tal, disability, life insurance, or other benefits provided to full-
time employees.31
In Bell Convalescent Hospital, 337 NLRB 191 (2001), the
Board held:

It is well settled that, in reviewing a stipulated unit, the
Board’s function is to ascertain the intent of the parties with
regard to inclusion or exclusion of a disputed voter and then
to determine whether such intent is inconsistent with any stat-
utory provision or established Board policy. If the objective
intent of the parties concerning the questioned portion of the
unit description is expressed in clear and unambiguous terms,
the Board will hold the parties to their agreement. In order to
determine whether the stipulation is clear or ambiguous, the
Board will compare the express language of the stipulated
bargaining unit with the disputed classifications. The Board
will find a clear intent to include those classifications that
match the express language, and will find a clear intent to ex-

31 Brewer testified that employees must work over 30 hours per
week, in order to receive full-time benefits.
clude those classifications not matching the stipulated bar-
gaining unit description. Under this view, if the classification
is not included, and there is an exclusion for “all other em-
ployees,” the stipulation will be read to clearly exclude that
classification. The Board bases this approach on the expecta-
tion that the parties are knowledgeable as to the employees’
job title, and intend their descriptions in the stipulation to ap-
ply to those job titles.

Id. at 191 (citations omitted, with emphasis added).
Part-time employees were expressly excluded by the Stipu-
lated Election Agreement, which only included, “[a]ll full time
. . . maintenance [and] maintenance techs . . . employed by the
Employer,” while expansively excluding, “[a]ll other em-
ploye[e]s.” Given that OHL obviously knew that it employed
part-time maintenance employees when it signed the Agree-
ment, I find that James and Brewer, as part-time employees,
were expressly excluded, and their challenges were valid.32 See
Bell Convalescent Hospital, supra, 337 NLRB at 191–192 (ex-
cluding “central supply/patient supplies/nurse aide” classifica-
tion, when the title was not expressly listed under inclusions
and the stipulated election agreement broadly excluded “all
other employees.”); Regional Emergency Medical Services, 354
NLRB 224, 224–225 (2009) (excluding contingent employees
from the unit, when the inclusions listed full and part-time em-
ployees and the stipulated election agreement extensively ex-
cluded “all other employees.”).
4. Team Leads: Brenda and Tammy Stewart
The Union challenged the ballots of Team Leads Brenda and
Tammy Stewart; it asserted that they were supervisory. OHL
takes the opposite stance.
a. Brenda Stewart
Brenda Stewart credibly testified that she unloads pallets, re-
ceives product from shippers, and retrieves product within the
warehouse. She stated that she does not attend supervisory
meetings and lacks disciplinary authority. She denied assigning
work to employees.
Wayne Morton, former senior operations manager, credibly
testified that Brenda Stewart is an hourly employee and team
lead, who performs the same duties as other team leads, who
were included in the unit. He added that she does not have a

32 Even if the language in the agreement were ambiguous, which it is
not, I find that, if OHL intended to include part-time maintenance em-
ployees in the unit, it would taken one of the following steps: inserting
“and regular part-time employees” under inclusions in the agreement;
agreeing that they would vote subject to challenge; or litigating their
inclusion in an R-case proceeding. It is noteworthy that the parties took
such a step regarding the Administrative Assistants, when they express-
ly stated in a side agreement that they would “vote subject to chal-
lenge.” (U. Exh. 13A.) OHL’s failure to take a similar step regarding
part-time employees suggests that their exclusion was intentional.
Lastly, assuming arguendo that OHL employs other part-time employ-
ees beyond maintenance employees, it is unclear why it neglected to
also raise the inclusion of these additional part-time employees, and
solely focused on maintenance employees. Its unexplained failure to
encourage other part-time employees to vote, and then comprehensive-
ly litigate their inclusion is inconsistent, and suggests that OHL is more
concerned with election results than the agreement’s fair construction.
OZBURN-HESSEY LOGISTICS, LLC 1043

private office, uses a desk located on the shop floor, and is not
supervisory.
Steele credibly testified that Brenda Stewart’s duties include:
confirming that product is unloaded; verifying that accurate
data is listed on palletized product; and recording inventory on
OHL’s system. He stated that all team leads perform these
tasks. He added that she does not transfer workers and lacks
disciplinary authority.
Herron testified that Brenda Stewart is a managerial employ-
ee. However, beyond stating that she has specialized access to
certain areas, she neglected to provide supporting detail.
b. Tammy Stewart
Tammy Stewart, a team lead, who works in the MAM Baby
USA department, credibly denied having the authority to: as-
sign work to team leads; recommend discipline; layoff; hire; or
recall. She stated that she closes orders, “picks,” “blasts,” loads
and unloads trucks, and receives product. Regarding assign-
ments, she stated:

I assign work . . . if my supervisor . . . releases the work, then
I go in [the system], . . . if they run out, they will come to me
if Jim is not around and I will give them more work. . . . So,
however many is assigned to go out today if it’s 18, then I di-
vide those 18 up.

(Tr. 1669) (grammar as in original). She added that she equita-
bly divides assignments, and does not consider who is better-
suited for particular tasks. She averred that assignments are
prioritized by the computerized inventory system by shipping
date. She stated that she has a desk in the warehouse.
Steele credibly testified that he supervises Tammy Stewart,
who picks, packs, ships, and closes orders. He stated that all
team leads perform these tasks. He added that she does not
transfer, interview, or discipline employees.
McNeal testified that Tammy Stewart is an operations super-
visor. She said that Tammy Stewart determines the arrival and
departure times for trucks, and schedules breaks.
Hayes testified that, when she worked in the aerosol depart-
ment roughly 2-1/2 years ago, Tammy Stewart periodically
filled in for the manager, conducted morning meetings, and
distributed assignments. She stated that other team leads re-
ported to Tammy Stewart, who sat behind a desk, issued orders
and trained them. She related that Tammy Stewart did not scan
or label inventory, took her breaks in a separate area, and had
keys to the buildings.
c. Legal precedent
Section 2(11) defines a supervisor as:

Any individual having the authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.

The party alleging supervisory status must establish that: the
disputed individual possesses at least one of the supervisory
authorities delineated above; and that independent judgment is
used in exercising such authority.33 Oakwood Healthcare, Inc.,
348 NLRB 686, 687 (2006). “Independent judgment” is de-
fined as judgment that is, “free of the control of others . . . [and]
not . . . dictated or controlled by detailed instructions . . . [in-
cluding] the verbal instructions of a higher authority.” Id. at
693.
d. Analysis
For several reasons, I find that the Union has failed to show
that either Tammy or Brenda Stewart were supervisory. Be-
cause the record fails to reveal any evidence that they exercise
the authority to hire, transfer, suspend, layoff, recall, promote,
discharge, reward, or discipline employees, or adjust their
grievances, I will solely analyze their authority to assign and
responsibly direct.
(I) ASSIGNING DUTIES
Neither Brenda nor Tammy Stewart exercise independent
judgment, when assigning duties. The Board defines “assign”
as:

[T]he act of designating an employee to a place (such as a lo-
cation, department, or wing), appointing an employee to a
time (such as a shift or overtime period), or giving significant
overall duties, i.e., tasks, to an employee.

Oakwood Healthcare, supra, 348 NLRB at 689.

Regarding Brenda Stewart, the record fails to sufficiently
show that she assigns work. It establishes that she solely per-
forms the same hourly warehousing assignments performed by
other hourly workers, i.e. receiving, stocking, retrieving, and
shipping product.
Regarding Tammy Stewart, although I find that she assigns
tasks to colleagues when they run out of work, I do not find that
she exercises independent judgment in making such assign-
ments. Her assignments are prioritized by the computer; and
she provided unrebutted testimony that she never considers a
worker’s skills before assigning work, and robotically divides
up the next series of assignments in the queue. Such activity
falls short of the exercise of independent judgment. See Sears,
Roebuck & Co., 292 NLRB 753, 754–755 (1989).
(II) RESPONSIBLE DIRECTION
Neither Brenda nor Tammy Stewart responsibly directs em-
ployees. Such authority exists when:

[An employee decides] what job shall be undertaken next or
who shall do it, . . . provided the direction is both “responsi-
ble” . . . and carried out with independent judgment.

Oakwood Healthcare, Inc., supra, 348 NLRB at 691. “[F]or
direction to be ‘responsible,’ the person performing the over-
sight must be accountable for the performance of the task . . .

33 Sec. 2(11) solely requires possession of a listed supervisory func-
tion, not its actual exercise. See Barstow Community Hospital, 352
NLRB 1052, 1052–1053 (2008). The fact that most of an alleged su-
pervisor’s duties involve routine tasks “does not preclude the possibil-
ity that such regular assignments require the exercise of independent
judgment.” Loyalhanna Care Center, 352 NLRB 863, 864 fn. 4 (2008).
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

such that some adverse consequence may befall the one provid-
ing the oversight if the tasks performed are not performed
properly.” Id. at 692.
Even assuming arguendo that Brenda and Tammy Stewart
direct coworkers to perform tasks, and exercise independent
judgment in doing so, which it does not, the record failed to
reveal evidence of “actual accountability.” Moreover, the rec-
ord failed to demonstrate that they were potentially subject to
adverse consequences, if assignments were delayed or unsatis-
factory. Accordingly, I find that they do not responsibly direct
others. See Golden Crest Healthcare Center, 348 NLRB 727,
731 (2006).
(III) CONCLUSION
Brenda and Tammy Stewart are not supervisory; they are
team leads, who are included in the unit under the Stipulated
Election Agreement. Their challenges are, thus, overruled.
5. Administrative assistants: Harris and Maxie-Chaisson
The Union challenged these ballots and contended that the
employees are office clericals, who should be excluded. OHL
avers that they are plant clericals, and should be included.
a. Harris
Administrative assistant Harris testified that she works at a
desk, and spends the majority of her time using the computer.
She explained that she uses the REDPRAIRIE application,
which generates reports on warehouse operations and produc-
tivity. She stated that these reports are primarily disseminated
to managers, who use such to determine proper staffing levels.
She stated that she tracks the productivity of every employee on
the warehouse floor and generates related reports. She added
that she has no discretion to set productivity targets and only
collects and processes data. She noted that she also uses
ACCUPLUS software to perform accounts receivable and bill-
ing work. She conceded that she did not vote in the first elec-
tion.
Cotton, a customer service representative, testified that Har-
ris’ office is located in an area, which requires special access
and states, “authorized employees only.” She related that Har-
ris does not share the same breakroom with rank and file em-
ployees, and that she rarely observes her on the warehouse
floor. She stated that operators and other members of the unit
spend most of their workday on the warehouse floor. Wells
and Herron corroborated Cotton’s account.
b. Maxie-Chaisson
Administrative assistant Maxie-Chaisson testified that she
uses the REDPRAIRIE system to track productivity. She indi-
cated that she posts productivity reports, and explains data to
employees, when asked. She explained that the REDPRAIRIE
system shows managers where they can better place people and
product within the warehouse. She indicated that she also per-
forms some accounts receivable and billing work.
McNeal testified that she has never seen Maxie-Chaisson re-
trieving warehouse stock, shipping product, or engaging in
other activities normally performed by operators. Rayford
corroborated McNeal’s testimony. Phil Smith testified that
Maxie-Chaisson is essentially a data clerk, who is paid at a
lower rate than several team leads.
c. Analysis
Harris and Maxie-Chaisson are office clerical employees,
who should be excluded from the unit. Concerning the distinc-
tion between office and plant clericals the Board has held that:

[T]he distinction between office and plant clericals is rooted
in community of interest concepts. Clericals whose principal
functions and duties relate to the general office operations and
are performed within the office itself are office clericals who
do not have a close community of interest with a production
unit. This is true even if those clericals spend as much as 25
percent of their time in the production area and have daily
contact with production personnel.

Mitchellace, Inc., 314 NLRB 536, 536–537 (1994) (citations
omitted).
My finding that Harris and Maxie-Chaisson are office cleri-
cal employees is based upon several factors. They work in a
separate office area, and spend an extremely small percentage
of their worktime on the warehouse floor. They are data clerks,
who mainly sit behind a computer, prepare productivity reports
and perform accounts receivable work. Their reports are pri-
marily used by management to gauge productivity and resource
allocation. On some occasions, these reports can also be used
to support a discipline, transfer or layoff. Under these circum-
stances, their challenges are valid. See, e.g., Mitchellace, Inc.,
supra, 314 NLRB at 536–537 (analogous data entry clerks were
office clerical employees); Virginia Mfg. Co., Inc., 311 NLRB
992 (1993) (analogous production control clerk, who compiled
production information, kept track of inventory and raw materi-
als, and prepared reports for management that determined daily
production priorities, was an office clerical).
F. Conclusion
The 6 ballots cast by Kurtycz, Jerry Smith, Carolyn Jones,
Dotson, Brenda Stewart, and Tammy Stewart should be count-
ed. The ballots cast by Brewer, James, Harris, and Maxie-
Chaisson should not be counted. The 6 uncounted ballots are
sufficient in number to affect the outcome of the election,
which was decided a single vote.
Union Objections 1–3, 5–6, 8, 12–14, 18, and 20 are valid.
The conduct underlying these objections, much of which also
violated Sections 8(a)(1) and (3), prevented employees from
exercising free choice during the July 27 election.34 Accord-
ingly, in the event that the Union does not win the election after
the 6 challenged ballots are counted, I recommend that the se-
cond election be invalidated, and that employees be permitted
to vote in a third untainted election. See General Shoe Corp.,
77 NLRB 124 (1948); IRIS U.S.A., Inc., 336 NLRB 1013
(2001).

CONCLUSIONS OF LAW
1. OHL is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of

34 OHL’s objections were, as noted, not valid.
OZBURN-HESSEY LOGISTICS, LLC 1045

Section 2(5) of the Act.
3. OHL violated Section 8(a)(1) of the Act by
(a) Threatening employees with discipline and other unspeci-
fied reprisals, if they engage in union or other protected con-
certed activities.
(b) Interrogating employees concerning their union or other
protected concerted activities.
(c) Engaging in surveillance of employees’ union or other
protected concerted activities.
(d) Creating the impression that employee union activities
were under surveillance.
(e) Confiscating union materials and related documents from
employee break areas.
(f) Telling employees, who support the Union, to resign.
2. OHL violated Section 8(a)(1) and (3) of the Act by issu-
ing a final written warning to Jennifer Smith, and by discharg-
ing Carolyn Jones, because they engaged in union or other pro-
tected concerted activities.
3. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. OHL has not otherwise violated the Act.
5. By the foregoing violations of the Act, which occurred
during the critical period before the second election, and by the
conduct cited by the Union in Objections 1–3, 5–6, 8, 12–14,
18, and 20, OHL has prevented the holding of a fair second
election, and such conduct warrants setting aside the July 27,
2011 election in Case 26–RC–008635.35
REMEDY36
Having found that OHL has engaged in certain unfair labor

35 As noted, a rerun election is only warranted, if the counting of the
challenges causes the Union to lose the second election.
36 In the complaint, the Acting General Counsel seeks an order re-
quiring reimbursement of amounts equal to the difference in taxes owed
upon receipt of a lump-sum payment and taxes that would have been
owed had there been no discrimination. He also requests that OHL be
required to submit the appropriate documentation to the Social Security
Administration so that when backpay is paid, it will be allocated to the
appropriate periods. These requests are denied, inasmuch as the grant-
ing of such remedies deviates from current Board law. See Metropoli-
tan Hotel Group, 358 NLRB No. 30, slip op. at 4, fn. 4 (2012) (not
reported in Board volume); Waco, Inc., 273 NLRB 746 fn. 14 (1984)
(holding that “[i]t is for the Board, not the judge, to determine whether .
. . precedent should be varied.”).
practices, it must be ordered to cease and desist and to take
certain affirmative action designed to effectuate the policies of
the Act.
OHL, having unlawfully discharged Carolyn Jones, must of-
fer her reinstatement and make her whole for any loss of earn-
ings and other benefits. Backpay shall be computed on a quar-
terly basis from the date of her discharge to the date of her
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily under Kentucky River
Medical Center, 356 NLRB 6 (2010).
OHL shall also expunge from its records any references to
Jennifer Smith’s final warning and Carolyn Jones’ discharge,
give them written notice of such expunction, and inform them
that its unlawful conduct will not be used against them as a
basis for future discipline.
OHL shall distribute appropriate remedial notices electroni-
cally via email, intranet, internet, or other appropriate electronic
means to unit employees at the facility, in addition to the tradi-
tional physical posting of paper notices. See J Picini Flooring,
356 NLRB 11 (2010).
In addition to the traditional remedies for the 8(a)(1) and (3)
violations found herein, OHL shall permit a Board agent to read
the notice marked “Appendix” to unit employees at its facility,
during work time, in the presence of Coleman and Phil Smith.
A notice reading will counteract the coercive impact of the
instant unfair labor practices, which were substantial and perva-
sive. See McAllister Towing & Transportation Co., 341 NLRB
394, 400 (2004). It will also foster the environment required
for a final third election result, if such an election is required.
[Recommended order omitted from publication.]