Ozburn-Hessey Logistics, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2010

26-CA-023675 (N.L.R.B. Dec. 27, 2010)

JD(ATL)-30-10
Memphis, TN
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
OZBURN-HESSEY LOGISTICS, LLC
and Cases 26-CA-23675
26-CA-23734
26-RC-8596
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND
SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO, CLC
Linda M. Mohns, Esq. and Christopher J. Roy, Esq. for General Counsel.
Ben H. Bodzy, Esq. and Stephen D. Goodwin, Esq. (Baker, Donelson,
Bearman, Caldwell & Berkowitz, P.C.), of Nashville, Tennessee, for the
Respondent.
Lynn Agee, Esq. and Mr. Ben Brandon for the Charging Party/
Petitioner.
DECISION
JOHN H. WEST, Administrative Law Judge. The charge in Case 26-CA-23675 was filed
by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, AFL-CIO, CLC (the Union, Charging Party or Petitioner)
on March 4, 2010 against Ozburn-Hessey Logistics, LLC (Ozburn or OHL), and it was amended
on May 5, 2010. The charge in Case 26-CA-23734 was filed by the Union on May 5, 2010. On
May 6, 2010 a complaint and notice of hearing was issued in Case 26-CA-23675. On May 7,
2010 the Regional Director for Region 26 of the National Labor Relations Board (Board) in
Cases 26-RC-8596 and 26-CA-23675 issued a Supplemental Decision and Order Consolidating
Cases in which it is indicated that an election was conducted on March 16, 2010; that of the
approximately 317 eligible voters, 119 were cast for the Petitioner Union and 180 votes were
cast against the Petitioner; that there was 1 void ballot and 11 challenged ballots, a number not
determinative of the results of the election; that on March 22, 2010 the Petitioner timely filed
objections to conduct affecting the results of the election; that the withdrawal of specified
objections was approved; that the remaining Petitioner’s objections raise substantial and material
factual issues which may best be resolved on the basis of record testimony; and that Petitioner’s
objections are consolidated with Case No. 26-CA-23675 for hearing, ruling, and decision by an
administrative law judge. On June 14, 2010 a Second Order Consolidating Cases, Amended
Consolidated Complaint and Notice of Hearing (hereinafter referred to as the complaint) was
issued in Cases 26-CA-23675, 26-CA-23734, and 26-RC-8596. The complaint alleges that
Respondent violated (1) Section 8(a)(1) of the National Labor Relations Act, as amended (the
Act) by interrogating employees about the union activities of other employees and about the
employee’s union activities and sympathies, by soliciting an employee to persuade another
employee to abandon the employee’s support for the Union, by a manager of Respondent telling
an employee that he did not want the employee to work in a specified department of
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Respondent’s operation because of the employee’s union activities, and by threatening an
employee with unspecified reprisal if the employee discussed with other employees the
conversation between the involved manager and the employee, (2) Section 8(a)(1) and (3) of the
Act by refusing to allow employee Glenora Rayford to work overtime in a specified department,
by issuing a final written warning and a 1-day suspension to employee Jennifer Smith, by
discharging employee Glorina Kurtycz, and by engaging in this conduct because these three
employees joined or assisted the Union and engaged in concerted activities, and to discourage
employees from engaging in these activities, and (3) Section 8(a)(1) and (4) of the Act by issuing
a final written warning and a 1-day suspension to employee Jennifer Smith because she
participated in and gave testimony under the Act. Respondent denies violating the Act as alleged.
A hearing on these consolidated cases was held before me on July 14, 15, and 16, 2010,
on August 31, 2010, and September 1, 2010 in Memphis, Tennessee. On the entire record,
including my observation of the demeanor of the witnesses, and after considering the briefs filed
by the General Counsel1, the Respondent, and by the Union, I make the following
Findings of Fact
I. Jurisdiction
Ozburn, a Tennessee corporation, provides transportation, warehousing and logistics
services for other employers at its facilities in Memphis, where during the 12-month period
ending March 31, 2010 it (1) performed services valued in excess of $50,000 for employers
located outside the State of Tennessee, and (2) received goods valued in excess of $50,000
directly from points located outside the State of Tennessee. Ozburn admits and I find that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
During the first day of the trial herein the parties entered into the following stipulation, Jt.
Exh. 1:
1. At all relevant times, William Pope has been a supervisor and agent of Respondent
within the meaning of Section 2(11) and 2(13) of the Act.
2. At all relevant times, Terri Cheshier has been a supervisor and agent of Respondent
within the meaning of Section 2(11) and 2(13) of the Act.
3. At all relevant times, Willie Dye has been a supervisor and agent of Respondent
within the meaning of Section 2(11) and 2(13) of the Act.
4. On Respondent’s Timecard Report documents, the Remington Department

1 The Counsel for General Counsel’s unopposed motion to correct the transcript and one
exhibit herein is granted and received in evidence as GC Exh. 38. It is noted that, contrary to one
of the proposed corrections, there is no “noisy” on line 23 on page 23.
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designation is 67001.
A. Alleged Interrogations
Nichole Bledsoe, who has been an Ozburn employee for a total of 7 years, testified that
she works in Ozburn’s Uzaki department; that her mother, Rayford, and her mother’s aunt, Helen
Herron, both work in Ozburn’s Water Pik department; that she has two other relatives who work
of Ozburn2; that in late 2009 her mother came to her and told her that Van Young and Karen
White called her mother to the office and told her mother that Nichole had a supervisor on the
floor crying; that, according to her mother, (a) Young asked her mother “what’s up with Nicki”
(Tr. 73), (b) her mother told Young that she did not know what was up with Nicki who was a
grown woman, (c) Young told her mother “Well, you know she’s got a supervisor on the floor
crying and I also heard that she was in the Union” (Ibid.), and (d) her mother told Young “I don’t
know but I’ll go talk to her” (Ibid.); that the supervisor who was crying was Sandy Pugh; that
when her mother told her about the meeting with Young and White, she told her mother that she
was in the Union and it was not a secret; and that later that day, in the evening after she left
work, her mother telephoned her, they continued the discussion regarding her mother’s meeting
with Young and White, her mother asked her for a Union authorization card for Herron, and she
told her mother that she did not have a card but that she would get one for Herron.
On cross-examination Bledsoe testified that the affidavit she gave to the Board on May
19, 2010 does not contain a reference to either Young or White saying anything about the Union
in their late 2009 meeting with her mother; that her supervisor knew that she was for the Union;
that she spoke out at meetings at the Company about the Union, and she passed out brochures on
her birthday, March 10, 2010; that she attended several Company meetings about the Union and
they occurred both before and after November 2009; and that it was no secret that she was for the
Union before November 2009.
On redirect Bledsoe testified that with respect to November 2009, she had not handed out
Union flyers in front of Ozburn’s facility yet (This occurred in March 2010.); that she was not
wearing Steelworker T-shirts to work; that Ozburn passed out no-Union flyers and her
supervisor, Pugh, would have a meeting with the employees, going over the flyer and asking
them if they had any questions; that she challenged Pugh every time she read something and she
asked Pugh questions; that this is how the argument occurred between her and Pugh which
resulted in Pugh crying; that in November 2009 she spoke to employees about joining the Union;
that she told Pugh about joining the Union, how she felt about joining the Union, the reason why
she was in a Union, and the reason why the employees needed a Union; that during this meeting
Pugh said that she hoped that the employees did not have any questions because they needed to
be thankful that they had a job; that she, in effect, told Pugh that it was going to get better; that
Pugh said “Well, Nichole, if you’re not going to listen to me, the hell with you” (Tr. 122); that
she told Pugh “You just disrespected me. I’m going back to work”; and that before this meeting
she had told Pugh that she believed that the employees needed a union.
Rayford, who has worked for Ozburn since 2000, testified that she works the first shift (8
a.m. to 4:45 p.m.) in Water Pik Monday through Friday; that she has two 15 minute breaks,

2 Cousin Eric Collins and uncle Troy Hewlett.
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usually at 10 a. m. and 3:15 p.m. and 45 minutes for lunch, usually at 12:30 p.m.; that while she
does not clock out for breaks, she does clock out and back in for lunch; that during the latter part
of 2009 her supervisor was Dye; that the volume of work can affect when breaks are taken and in
high volume situations the supervisor tells the employees when they can take a break; that in
November 2009 she was not openly supporting the Union at work in that she was not wearing
pro-Union pins or T-shirts, and she had never handed out Union flyers as employees were
coming or going to Ozburn’s facility; that on November 10, 2009 she had a conversation with
Human Resources Manager Young in her office at about 2 p.m.; that Dye had told her that
Young wanted to see her in Young’s office; that it was just her and Young in the office; that
Young asked her what was up with Nichole; that she asked Young what she meant; that Young
said that White, who is Vice President of Ozburn, came to her and said that your daughter
Nichole is a Union supporter; that Young told her that White told her that an employee on the
floor came to White and told her that Nichole was supporting the Union; that she told Young
“Well, I’m going to talk to her for you,” (Tr. 288) and Young said “After all I’ve … [done] for
you and your family, Nichole …. I’ve got her job back” (Ibid.); that she told Young that she
would speak to Nichole for Young; that Young told her to “talk to Nichole for me” (Ibid.); that
Young then asked her “Are you for it” (Ibid.); that she told Young “no” (Ibid.); that Young said
that “she didn’t see how people would do her like this” (Ibid.); that when Young said that she did
not know who to trust, she told Young that she could trust her, she would not cross her, and she
was her friend; that Young started crying and she told Young to give her a hug, which Young
did; that they left Young’s office and walked into the open doorway of White’s office; that she
asked White how she was doing and White asked her “Is everything okay with Nichole” (Id. at
290); that she told White that she had a talk with Young and she was going to talk to Nichole for
Young; that White asked her if Nichole was going to listen to her, and she told White “yeah, …
she was my daughter” (Ibid.); that Young told White that Rayford could get through to Nichole
and White said okay; that she then went downstairs to Nichole’s department and told Nichole
that Young had her, Rayford, in her office and was questioning her about her, Nichole, being for
the Union; that Nichole told her, “she told me wants to save the Union”3 (Tr. 291) and she did
not care who knew; that she told Nichole to be careful and Nichole said okay; that later that day,
at her 3:15 p.m. break, she telephoned Nichole and they discussed again why Young called her
into her office earlier that day; that she and Nichole discussed the fact that Young called her into
the office to discuss the Union and the fact that Young, in a different conversation either a week
earlier or earlier during the week of the November 10, 2010 above-described conversation,
brought up what happened between Nichole and Nichole’s supervisor, Pugh; and that she had the
conversation with Young, about Nichole causing Pugh to cry, while she and Young were in the
break room.
On cross-examination Rayford testified that she has known Young since 2000; that when
she is in the break room Young has asked her for some of the food she has; that she has offered
her food to Young; that she heats up her food in a microwave which is located in an office near
Young’s office; that she does not go to Young’s office on her own but rather she goes to
Young’s office at Young’s behest; that Young called Dye to have her, while she was on work
time, go to Young’s office two or three times a week; that she started being called up to Young’s
office two or three times a week when she started working in Water Pik 3 years ago; that she is

3 The Counsel for General Counsel’s unopposed motion moves to change the word “save” to
“support.” As noted above, the unopposed motion was granted.
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no longer called to Young’s office two or three times a week; that prior to her November 10,
2009 conversation with Young in her office about the Union, Young had brought up the Union
before telling her that “she [Young] had a list with everybody [sic] name on it that was for the
Union” (Tr. 363); that Young held the list up and showed it to her; that she asked Young where
she got the list and Young told her that she had somebody working for her; that she had only two
conversations with Young about the Union in Young’s office, namely about Nichole and about
the list; that White asked her whether Andrew Wardlow was for the Union; that White told her
that she needed to talk with Wardlow and she brought Wardlow up to speak with White; that she
did not tell the Board agent about the list or Wardlow when she gave her affidavit; that on
November 10, 2009 Young, through Dye, called her upstairs and asked “What’s up with
Nichole” (Id. at 365); that Young said that White told her that Nichole is a Union supporter,
which was something White learned from an employee who works on the floor; that Young said
to her “after all I did for you and your family Nichole do this shit to me” (Id. at 365); that Young
asked her if she was for it and was she going to talk to Nichole for her; that when she went down
the hall to White’s office, White asked her was everything okay with Nichole; that she told
White that she told Young that she was going to talk to Nichole for her; that White asked if
Nichole was going to listen and she told White she would since Nichole was her daughter; that
before the November 10, 2009 conversation (within a week of the November 10, 2009
conversation), Young mentioned to her that Nichole had an interaction with supervisor Pugh and
Pugh was crying; and that she was not called to Young’s office since November 10, 2009.
On redirect Rayford testified that her conversation with White about Wardlow occurred
around October or November 2009; that White had a Union flyer on her desk, and White was
talking about Wardlow, saying that they had misspelled his name; that White said something
about Wardlow being in the Union and she wanted her to talk to him for her about him
participating in the Union; that during this conversation she and White were standing in the
doorway of White’s office; that White’s desk was about 10 feet away; that the Union flyer was
laying on White’s desk; that the same flyers were on the table in the break room; that White
walked over to her desk and she pointed out Wardlow’s name; that White showed her the flyer
that was laying on her desk; that White said that she could not talk to Drew; that she went to the
floor, got Drew, and brought him to the office where White was; that her conversation with
White occurred before October 22, 2009; and that GC Exh. 23 is the Union flyer White had on
her desk, and “Andrew Woodlow” is named, along with 21 other individuals, in the Union flyer
to hourly Ozburn employees regarding who to contact with respect to attending a fish fry
sponsored by the in-plant organizing committee on October 22, 2009 at the Union hall.
Subsequently Rayford testified that White picked the Union flyer up and showed her, by
pointing, where Andrew Wardlow’s first name (and not his last name) was misspelled on the
flyer.
Herron, who has worked for Ozburn for 10 years, testified that she works on the first shift
in the Water Pik department; that during the latter part of 2009 her supervisors were Dye and
Phillips; that during the latter part of 2009, around November, she was not doing anything
openly at work that would indicate where she stood on the union issue; that she did not wear
Union pins or clothing and in November 2009 she had not handed out Union flyers or leaflets as
people were coming or going to work; that one day in November 2009 she was going through the
metal detector on her way to lunch and Young asked her if she could speak with her; that Young
led her to the manager’s entrance and then asked her “What’s up with G [Glenora Rayford] and
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Nichole” (Tr. 126); that she asked Young what she meant; that Young then said “What’s up with
G and Nichole with this Union” (Ibid.); that she then told Young “They are both grown women.
They make their own decision. I don’t have anything to do with that” (Ibid.); that she then said “I
don’t trust them. Why should you” (Ibid.); that she then went out to the parking lot to take her
lunch break and she telephoned Rayford; that later she went to the break room to speak with
Rayford, who had not finished her lunch; that she returned to the parking lot and when Rayford
did not come there she telephoned Rayford and told her “Look, this is a lady [Young] that’s out
to get us” (Id. At 128); that when Rayford came to her from the break room she told Rayford
exactly what she and Young said; that she then said to Rayford that she needed a Union card;
that Rayford telephoned Bledsoe and then Rayford told her that Bledsoe did not have a Union
card at that time but she would get one for her the next day; and that she wanted to sign the
Union card so that she would feel safer.
Rayford testified that on November 11, 2009, the day after she had the conversation with
Young and White about Nichole, Herron came to her in the break room where she was on lunch
break and told her that she needed to talk with her about Young; that she went to the lobby in the
downstairs beak room and Herron told her that Young came to her and asked her “What’s up
with G and Nichole” (Tr. 294); that Herron told her that she told Young “I’m going to do me”
(Ibid.), and that Young then said “I knew you wasn’t [sic] like them” (Ibid.); that Herron asked
her to tell Nichole to bring her a Union card; that later that day she telephoned Nichole and told
her what Herron said and that Herron wanted a Union card; and that she understood the
conversation between Herron and Young to be about the Union and not about Nichole causing
her supervisor, Pugh, to cry.
White, who is a Regional Vice President of OHL in charge of OHL’s Memphis operation,
testified that she has known Rayford for 6 or 7 years; that before the Union and during the union
campaign usually on a daily basis Rayford came to the area where her office is located to see
Young or to warm up her lunch in the microwave which is in the nearby copy room; that
normally her office door is open and she saw Rayford go into Young’s office quite a bit; that
once the union campaign began Rayford did not come into the office area and discuss the union
campaign; that a couple of times Rayford did come into the office and discuss Wardlow with her;
that Rayford made a couple of comments about Wardlow’s union support or lack of union
support, saying that she was trying to turn him around; that Rayford told her that she should talk
with Wardlow, and she told Rayford that Wardlow had the right to choose; that she also told
Rayford that Wardlow, just like any other employee, could come and see her at any time; that
one day in November 2009 she overheard through her open office door Young and Rayford
talking about Nicki; that subsequently Young and Rayford headed toward her office and she
stood up; that she asked Rayford if “everything is okay, [i]s Nichole okay, [and] [i]s there
something we can do” (Tr. 946); that she asked if Nichole was okay because a few days before
this there was a meeting on the floor and supervisor Pugh told her that Nichole was visibly upset,
she was really upset, something was going on, and she thought that HR might need to talk to her;
that she was not sure what the issues were with Nichole; that when she asked if Nichole was
okay she was referring to what she had been told by Pugh; that Rayford said that she was going
to talk to Nichole; that during this conversation Rayford did not mention whether or not Nichole
supports the Union and Rayford did not indicate that she was going to try to convince Nichole to
support the company in the union campaign; that she did not say what’s up with Nichole and this
union thing; that she said “hey, is everything okay with Nichole. Is she okay.” (Tr. 947); and that
she did not ask “Young whether Ms. Rayford could get through to Nichole.” (Ibid.)
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Young, who is Regional Human Resource Manager, testified that she works at OHL’s
Memphis campus; that part of her duties involve discussing employee complaints with them, and
it is common for employees to come to her to talk about concerns, either personal or dealing with
the OHL; that she had a conversation with Rayford in November 2009 about Rayford’s daughter,
Nichole; that she has known Rayford for about 10 years and Rayford comes to her office often;
that sometimes she called Rayford to her office but most of the time Rayford just came in on her
own; that she and Rayford discussed things involving OHL or personal matters, relationships or
food; that Rayford often brought her food; that there is a microwave, which Rayford often used,
in her row of offices; that in November 2009 Rayford came to her office on her own and said
that she was worried about Nichole because Nichole was upset about something and she had told
Nichole go to see Young; that she told Rayford that Nichole knew that and Nichole had never
had any problems talking to her about any issue; that one day later Nichole came and talked with
her; that on a different occasion Rayford came into her office and the following occurred:
[S]he [Rayford] was upset and she was just mad and she said she was upset … with
Nichole because Nichole had lied to her. And … I said about what? She said she - - …
I’ve been asking Nichole and asking Nichole … is she going to these meetings and
Nichole keeps saying that she went, but then she just lying to me. I said well, Glenora,
leave her alone. No, I’m hurt. And she would use a few cuss words. I’m her mamma and
she don’t lie to me. I don’t care about these people out here.
So she kept going on and on. She was getting more and more upset. And so where
my office sits is you can look directly down and see the picnic area where the employees
have breaks. At this time, she - - Nichole was down there talking to a young lady named
Linda Gill, but everybody calls her KK. And she said she is down there talking to KK
and stuff. You know, I ought to go down there and knock her in her “D” head and all that
kind of stuff.
And I said whoa, hold on, Glenora, wait a minute. That’s your daughter and ,,,
that’s your child I understand that. But if you go down there and even argue with
Nichole, then you’re going to put yourself in a position where … you could get
terminated. You can’t have - - I don’t - - look, I understand you’re upset. You all need to
take that at home.
And she said no, she don’t lie to me. I said I understand what you’re saying,
Glenora, but you’ve got to take that home. You cannot - - you need to calm down,
because you’re getting too upset and you just need to leave it at the moment. No, I’m
going to go down there and do all this.
And so Karen kind of overheard the conversation. I said Karen come over here
and go calm yourself down. And so we were walking down the hallway and Karen
happened to hear … some of - - … you can sometimes hear if your voice is real inflated.
And so Karen asked … Glenora, are you okay and stuff. And so she went on to telling
Karen the story and everything.
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And so she said - - I think Karen said something … well, I asked you was she
okay. You said she was upset about something. Did she ever come and talk to Van and
she said no.
….
…. And so she said no, she was - - Karen just pretty much went on agreeing with
me. Well ... Van is telling you right. You need to calm down, You can’t - - whatever it is,
you know, whatever is going on with her, you can’t go address it. I know it’s your child,
but you can’t just do that, because, you know, at the end of the day, you both are still
employees of OHL. [Tr. 984-986]
Young further testified that neither she nor White asked any questions about who is for the union
or who is not for the Union during this conversation; that she was not crying during her
conversation with Rayford about Nichole; that Rayford did not give her a hug during this
conversation; that she did not, during her conversation with Rayford about Nichole, (a) refer to
the Union and tell Rayford “after all I’ve done for your family, I got Nichole’s job back” (Tr.
1007) (b) say “I don’t see how people can do me like this” (Ibid.), (c) say “I don’t know who to
trust” (Ibid.), (d) say “I had a talk with my God and told him I was going to be okay” (Ibid.), and
(e) ask who was for the Union and who was not; that about one week before her conversation
with Rayford when she was upset with Nichole, she did not call Rayford to her office to talk
about Pugh and Nichole in the break room or anywhere else; that she has known Herron for 10
years; that some weeks after she had the conversation with Rayford about Nichole, which
conversation spilled over into Whites’ office, she asked Herron in passing about Rayford, who
had been “just kind of real dry” (Id. at 987); that when Herron asked her why she was asking, she
told Herron that Rayford seemed like something was wrong with her; and that Herron then made
the following statement: ”I told you to stop fooling with Glenora a long time ago. I’m her aunt
and she don’t care nothing about me, so who are you? And I looked. I said okay. She said you’ll
listen. I said girl - - we both left.” (Id. at 989); that there was no mention of the Union in her
conversation with Herron; that she did not ask Herron “what’s up with G and Nichole with this
union” (Id. 989); that she did not talk at all about Nichole with Herron during this conversation;
that in her numerous conversations with Rayford she did not tell Rayford that she had a list of the
people who were for the Union; and that she never had such a list.
On cross-examination Young testified that when Rayford was in her office on the clock it
was about work and it was not a social visit; that she denies (a) that she became emotional in her
office when Rayford was present, and (b) that Rayford consoled her with a hug; that very early in
the union campaign Rayford would come to her office and voluntarily express her opinions about
the Union, and her displeasure about what was going on; that she never knew that Rayford
supported the Union because Rayford, basically, expressed her displeasure about what was going
on with it; and that she denies ever initiating the topic of the Union in her discussions with
Rayford.
Kurtycz, who was terminated by Ozburn twice, testified that she was first hired in July
2008; that she worked for Ozburn until she was terminated after she could not work for several
months after a car accident in October 2008; that in April 2009, when her doctor released her for
work she was rehired by Ozburn; that she was again terminated by Ozburn on March 2, 2010;
that she worked in Ozburn’s HP department as an operator on first shift, Sunday through Friday,
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with Saturday and one other day, which changed, off; that her supervisors in 2010 before she was
terminated were Pope, who reported to Vania Washington, who reported to Vice President White
and Area Manager Phillip Smith; that during January or February 2010, or earlier, she did not
wear Union T-shirts or Union buttons to work or hand out Union leaflets at the curb where
employees were coming and going; that on March 1, 2010 at 9:30 a.m. Buddy [Kurtycz did not
know his last name (Lowery).], who works in the office with Washington, came up to her while
she was working and he said to her “You are on my list” (Tr. 171); that she asked him what kind
of a list he was talking about; that Buddy showed her a piece of paper, GC Exh. 4, pointed at it,
and said to her “If you select the United Steelworker … it’s not going to happen” (Ibid.)4; that
Buddy asked her “What do you think about the Union” (Id. At 172) and she told him “Union is
good” (Ibid.); that she told Buddy that (a) the problem was that when she came to work she
never knew what time she would be able to go home, (b) that week on Sunday she asked her
supervisor, Pope, if she could go home after 8 hours of work because she already had 34 hours of
overtime, and (c) Pope spoke with Washington and then he told her that she would have to work
beyond the 8 hours that day; that Buddy made notes while she told him this; that Buddy then told
her “I don’t know anything about it” (Ibid.); and that Buddy then walked over to her Team
Leader, described only as Earl.
On cross-examination Kurtycz testified that on March 1, 2010 Buddy talked to Earl
(Johnson) after Buddy spoke with her; that she did not approach Buddy about the fact that she
was upset because she could not get the day off for her daughter’s birthday; that her complaints
to Buddy on March 1. 2010 referred to something that happened before March 1, 2010 and not
on March 1, 2010; that in response to her complaints Buddy said “I don’t know anything about
your account,” (Tr. 192) which was HP; and that she did not hear any of the conversation
between Buddy and Johnson.
Ernest (Buddy) Lowery, who manages Ozburn’s Operational Excellence (efficiency)
Program, testified that on Monday March 1, 2010 he was having a conversation on the floor with
Lead Earl Johnson in the HP account about a topic that he was supposed to talk to the people
who were assigned to him that day; that he could not remember what the topic was; that Kurtycz,
who seemed upset, interrupted them, saying something to the effect that she was scheduled to
work on Sunday and she didn’t get her day off during the week and it was her daughter’s
birthday and she wanted that day off; that he directed her to talk to her manager or supervisor
because he was not over that account; that he might have had a notebook in his hand; that he
“wouldn’t think” (Tr. 769) that he had GC Exh. 4, a Notice to Employees, in his hand when he
was talking to Earl Johnson or Kurtycz; that he wanted to say that he saw the Notice posted on
one of Ozburn’s boards at the office; that he did not ever possess a copy himself; that he wanted
to say, and he was not sure, that Earl Johnson did not stay while he spoke with Kurtycz; that this
was the only time he spoke with Kurtycz on March 1, 2010; that he did not think he told Kurtycz
that she was on his list, and she was not; that he did not say anything about the Steelworkers or

4 Kurtycz testified that prior to this she had received (from the Union) a copy of the same
“NOTICE TO EMPLOYEES” in the mail, which is dated “2/12/10,” which was signed by a
representative of Gerber Legendary Blades, and which, as here pertinent, indicates “WE WILL
NOT tell you that we will pull our account with Ozburn-Hessey Logistics if you select the United
Steelworkers Union, or any other labor organization, to represent you.” (Emphasis added.) The
emphasized words on GC Exh. 4 are highlighted in yellow.
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the Union; that the only things they talked about were the issues that she had on her mind,
namely getting off for her daughter’s birthday; that although he did not ask Kurtycz what she
thought about the Union, Kurtycz said something to the effect that that was why the employees
needed the Union, because she was working Sunday, she could not get off, and it was not right;
that he did not believe that he made any comment about the Union in response to what she said;
that his office is across from Washington’s office; that he was not present later on March 1, 2010
for any conversation Washington and Jim Cuisino may have had with Kurtycz; that he was not
asked or consulted for a recommendation about whether to terminate Kurtycz; and that he did not
have any part in the decision to terminate Kurtycz.
On cross-examination Lowery testified that on March 1. 2010 he was on the floor
speaking to the employees about a topic related to the union campaign but he could not recall
what the topic was; that this is what he was discussing with Johnson on March 1. 2010, and it
had nothing to do with efficiency; that he was trying to get information out to all the hourly
employees about what was going on with the campaign; that he had a list of people assigned to
him to talk to; that GC Exh. 4 was posted on the walls in the break room on the bulletin board;
that since March 1 2010 was a Monday, the Sunday Kurtycz was referring to would have been
either the day before they had the conversation or the coming Sunday; that he was pretty sure
that as Kurtycz was talking to him he wrote a note for Washington, her manager, to come and
talk to her about her issues; that his conversation with Kurtycz lasted about 5 minutes but he
could not recall what else they talked about; that he could not remember who else was on his list
to talk to that day; that Kurtycz was not on his list on March 1, 2010; that Kurtycz raised the
issue of the Union in the conversation after Earl had walked off; that Kurtycz said something
about that was why the employees needed a union because she was having to work on Sunday
and she couldn’t get off; and that he did not remember what he said in response. Subsequently,
Lowery testified that not only did he not recall who, other than Johnson, was on his list of
employees who he was supposed to talk to that day but he did not recall who he did talk to after
Johnson that day.
B. Distribution and Solicitation
Regarding employees selling items while the seller or the purchaser is on work time,
Ozburn’s employee Sandra Hayes, who has worked for Ozburn for 3 years, testified that she
works in the Water Pik department; that she is familiar with Ozburn’s policy on soliciting or
sales activity by employees because in a company meeting which was held about February or
March 2010 about the Union, Ozburn Area Manager Phillip Smith told the employees that an
employee was terminated for selling; that employees are not supposed to sell, solicit or do
anything on Company property; that employees selling something while not on break “is a
regular thing like coming to work” (Tr. 25); that an employee named “Shaky,” who before she
was moved to another building in about July 2009 worked in Water Pik, sold DVDs in Water
Pik; that “Shaky” transported the DVDs on her pallet jack; that the manager in Water Pik, Randy
Phillips, had to see them because Phillips eats sunflower seeds, “Shaky” brought the seeds in for
Phillips, and Phillips got the seeds off the pallet jack of “Shaky”; that she has purchased DVDs
from Cynthia Rivers, who worked in Water Pik for about 2 years but has not been there since
about March 2010; that she paid Rivers $3 for each DVD, and she was on work time when she
made the purchase; that Rivers delivered the DVDs before the morning meeting of the
employees in the Water Pik department with supervisors and the lead; that Rivers kept the DVDs
on her pallet jack where they could be seen; that she never saw Phillips purchase a DVD from
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“Shaky”; that she never saw Phillips in the presence of “Shaky” when “Shaky” sold or delivered
DVDs to an employee while the employee was working; that Doris Kilpatrick, who works in
Ozburn’s Quality Control department, sells Avon products; that Kilpatrick takes an Avon order
every week; that Ozburn employee Renee (She did not know Renee’s last name.) looked through
the Avon book and placed an order while on work time; that Kilpatrick comes out on the floor to
do inventory and she has the Avon books with her notepad and she passes them out; that on one
occasion, a couple of months before Rivers was fired in March or April 2010, she saw Ozburn
supervisor Dye looking into River’s bag which had been left in his office and had “Avon” on it;
that a guy (She did not know his name.) in National Geographic sells DVDs; that white anti-
union T-shirts were sold for $1 around the first time the employees were supposed to vote last
fall; that about one month after the white antiunion T-shirts were distributed, orange anti-union
T-shirts were handed out free of charge to employees who were working by an employee who
works in inventory with Kilpatrick, and supervisors Randy Phillips and Alfreda Owens both
received one; that while she was on her lunch break sitting in her car in the parking lot in about
July 2009 she saw Ozburn employee Rayford sell two purses to Ozburn Human Resources
Manager Young; and that Rayford does not sell purses anymore.
On cross-examination Hayes testified that she attended a meeting of Water Pik
employees at which Phillip Smith said that employees could not sell or solicit on Company
property, and there would be no soliciting on work time on the property; that Smith cited the
termination of a lady who worked in HP (Hewlett Packard) and who sold food; that Ozburn Vice
President White and Young were at this meeting; that “Shaky” sold the DVDs around July 2009;
that Randy Phillips had to see the DVDs on “Shaky’s” pallet jack when he went to that pallet
jack to get seeds; that employees are not supposed to have DVDs at work; that in order to get the
DVDs into the facility, an employee would have to get past a metal detector with a guard
standing there; that she never saw a supervisor or manager witness “Shaky” selling DVDs; that 2
weeks before she testified at the trial herein on July 14, 2010, she saw Kilpatrick bring an Avon
book to Jill McNeal, which McNeal has on her desk; that Kilpatrick carries the Avon book on
her clipboard but not on top; that she did not know if any Ozburn manager or supervisor was
aware of McNeal having an Avon book at her desk; that she saw Young give the money to
Rayford for the two purses Young purchased in the parking lot, which she considers to be a
working area because she was told that she was not allowed to sell or solicit in the parking lot;
that she did not know whether Rayford or Young was on break; that since they start work at
different times she and Rayford take breaks at different times; that Ozburn employee Renee
purchases Avon products from Kilpatrick on almost a weekly basis; that when she is on the work
floor Kilpatrick has the Avon books under a clipboard or a stack of papers; that Kilpatrick tells
Renee that she has her order and Renee tells Kilpatrick that she will be up to get it; and that
Ozburn employee Tasha purchased Avon products in about May 2010, and while she did not see
Tasha make the purchase, she saw Tasha return to the floor with the product.
On redirect Hayes testified that she saw people look at the Avon books while on the work
floor and on work time; that when Kilpatrick came back through her department the employees
would tell her what they wanted or they would write it in the Avon book and write their name on
the book; and that the employees were not on break when they were out on the floor; that
Kilpatrick comes out on the floor to check inventory and check on an account and product; and
that there are about 19 employees on day shift in Water Pik. And on recross Hayes testified that
she was not aware of any Ozburn supervisor or manager seeing Kilpatrick hand out Avon books;
and that Ozburn’s policy is that the employees cannot distribute or solicit anywhere on property.
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With respect to Ozburn’s policy on soliciting and selling items in the workplace, Bledsoe
testified that it is in the Ozburn handbook; that a supervisor goes over it with the employees; that
at the end of 2009 when the handbook was changed was the last time she was told about the
policy; that at that time her supervisor, Pugh, went over the handbook with the employees, telling
them that they should not sell things; that one morning in December 2009 she purchased three
DVDs for a total of $9 from Rivers, who worked in Water Pik, after they had clocked in; that she
was aware of Rivers selling DVDs on a daily basis in 2009; that Rivers passed out a list of the
DVDs she had and the next day she would bring in the DVDs chosen by employees; that she
chose the three DVDs from a list she saw in the break room; that while she was on the floor she
gave money to Rivers for another employee for the purchase of DVDs; that she did not know
whether any supervisor was aware of Rivers’ sale of DVDs at work; that she never saw a Ozburn
supervisor or manager purchase a DVD from Rivers nor did she see a supervisor in the
immediate area when an employee was purchasing a DVD on the floor; that a lady who does
inventory sells Avon products while at work in Ozburn, and she purchased a watch for her
daughter from this woman; that this transaction occurred around Christmas 2009, after when she
had clocked in back from lunch she gave the woman the money for the watch; that she has seen
another Ozburn employee, described only as Kay Kay, looking at the Avon book when she was
on the floor, on working time and not on break; that sometimes when she is on the work floor she
looked through the Avon book when she saw the book on her supervisor’s, Pugh’s, desk or on
Kay Kay’s desk which is right next to Pugh’s desk; that she has seen Avon bags with items in
them on pallet jacks; that she saw an Ozburn employee in HP selling hot food in the parking lot
during lunch time but at the time of her testimony at the trial herein, July 2010, the woman was
no longer with Ozburn; that in 2009 her mother, Rayford, sold purses to a lot of employees
during work time when they were not on break, and Rayford sold purses to Young; that on one
occasion in mid-2009 when she was on break in the break room her mother came up to her with
a purse and she asked her mother what she was doing; that her mother told her that she was
fixing to sell the purse to Young5; that to get to Young’s office one has to go through the break
room; and that her mother did not come back out with the purse.
On cross-examination, Bledsoe testified that from her personal knowledge and
observation no Ozburn supervisor or manager witnessed the sale of the DVDs or Avon products;
that after she picked up the Avon watch she purchased from Kilpatrick she put it on her pallet
jack since she did not have a locker at the time; that she has never seen an Ozburn supervisor or
manager go to somebody and ask them about their Avon bag; and that she never saw her mother
and Young exchange money for purses in Young’s office.
On redirect Bledsoe testified that when she had the conversation with her mother about
her mother going to Young’s office with respect to the sale of a purse, her mother approached
her and told her this while Bledsoe was working on the floor and she did not know whether her
mother was on the clock.
Herron testified that her understanding of Ozburn’s policy regarding soliciting or selling
items is that if she wanted to give a Union card, she could not; that if she wanted to sell
something, she could not; that she could not sell or do anything on Company time; that from 8

5 This testimony was offered and received as corroboration of the testimony of Rayford.
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a.m. to 4:45 p.m. she did not do anything but when she gets off work she pushes her card; that
she is aware of Ozburn employees selling items at times when they are not on break; that Rivers,
who worked in Water Pik before she was terminated, used to sell DVDs and she bought some 30
or 40 of them from her; that Rivers kept the DVDs on her pallet jack; that she placed the orders
for the movies with Rivers and bought the movies for $3 each while she was on Company time,
which she understood to be from the time she clocked in to the time she clocked out; that one
day Rivers was selling her a DVD at 8 a.m. at the morning meeting, Phillips told Rivers to do it
at break, and Rivers told Phillips “to shut up” (Tr. 133); that nothing changed after Phillips told
Rivers to do it at break; that Kilpatrick, who works in the Inventory department, sells Avon
products while people are on work time; that she ordered Avon products by looking through the
Avon book, putting her initials on what she wanted, folding the page, and giving the Avon book
back to Kilpatrick in her office during work time; that she paid Kilpatrick when the order came
in; that Kilpatrick would tell her when her order came in, she would go to Kilpatrick’s office and
pay for the order, and then she would place the product on her lift while she worked; that she saw
Ozburn employee Renee Harris looking at the Avon book while she was out on the floor on
Company time; that there were plenty of other times she saw an Ozburn employee looking at the
Avon book while on Company time; that she had never seen an Ozburn supervisor or manager
order Avon from Kilpatrick; that she purchased the T-shirt she was wearing from Young in
November 2008, during the Presidential race; that the T-shirt she was wearing when she testified
at the trial herein had “Obama,” “Dr. King,” and “the dreamer” on it (Tr. 147); that a couple of
weeks after she placed the order she overheard Dye tell Rayford that Young wanted to see her in
Human Resources; that later Rayford came back to the floor and told her that her shirt was up
there; that she had ordered the T-shirt from Rayford earlier when she was out on the floor
working; that when she picked her shirt up in Young’s office she was no on break time; that she
did not pay Young for the T-shirt when she picked it up but rather she paid her $5 for the T-shirt
the next day when she saw her coming down from Human Resources; and that in 2010 an
Ozburn employee described only as Annie sold strawberry shortcake in the break room during
lunch break.
On cross-examination Herron testified that she placed one order with Kilpatrick for Avon
products and that occurred in July 2009; that when Rivers and Phillips had their above-described
verbal exchange the morning meeting had already started and Phillips said to Rivers “Hey, do
that on your own time” (Tr. 156); that Rivers then told Phillips to “Shut up” (Ibid), and she did
not stop selling the DVD; that she could not recall the year or month that the verbal exchange
between Rivers and Phillips occurred; that she could not recall when Rivers left Ozburn; that
although she was sure that Annie sold the strawberry shortcake in 2010, she could not specify the
date; that Harris works in PTO (sorting) in Water Pik on the first shift; that Rayford took orders
for the “Obama” (Tr. 159) T-shirt before the November 2008 election; and that when the shirts
came in a couple of weeks later Rayford told her, and she went to Young’s office to get her shirt
while she was not on a break.
Kurtycz testified that at about 2:10 p.m. on March 1, 2010 a supervisor told her that
Washington wanted to see her; that she went to the office and met with Washington, a second
shift supervisor, described only as Jim, and Phil Smith; that during this meeting Washington told
her that there were two people giving management statements that she was soliciting on the
floor, forcing people to sign a Union card; that she told Washington that it never happened; that
she had not talked to any of her coworkers about the Union on March 1, 2010, and she had not
talked to any of her coworkers about he Union while she was at work in the days before that; that
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before she was sent home on March 1, 2010 she did not have any Union cards with her that day
at work; that she never talked to any employees or tried to give them any Union cards on March
1, 2010; that she had not tried to give employees Union cards while she was at work before
March 1, 2010; that Washington told her “we are going to investigate from the floor” (Id. At
175); that Jim told her that she needed to go home even though her shift was not over ; that she
asked if she could go back to her station to get her pen, and Jim escorted her to get the pen and to
the time clock to punch out at 2:45 p.m.; that she asked Jim why Buddy was questioning her
about the Union that morning and Jim told her that Buddy could do whatever he wanted because
Buddy was in management; that Jim told her to telephone Washington at 11 a.m. on March 2,
2010; that as she left Ozburn’s property former Ozburn employee Jerry Smith was handing out
Union flyers to employees and he gave her one; that she parked her car and she helped Jerry
Smith hand out Union flyers until 5 p.m. that day; that this was the first time she handed out
Union flyers, she had never done it before that day; that while she was handing out Union flyers
she saw Phil Smith; and that Jerry Smith was saying it is time to vote and Phil Smith, who was in
his car leaving Ozburn property, said “Let’s vote” (Id. at 176).
On cross-examination Kurtycz testified that on the morning of March 1, 2010 she did not
do any kind of Union solicitation during working time and in working areas, she did not ask any
employees for their names and addresses so the Union could contact them, and she did not pass
out any kind of Union cards or Union literature of any kind; that she does not know who Tiraney
Crawford, Jearl Moore, or Lashunda Hill are; that she signed R. Exh. 3, which is an
acknowledgement and receipt of handbook, dated “8-31-09”; that in September 2009 she
received a write up from Phil Smith for selling food on Company property after she had been
told not to do that; that she sold the food during her lunch time and not on working time; that
before September 2009 Washington told her in the break room in late June 2009 that she needed
to stop selling food because “the Union is coming” (Id. At 195), and when she received the final
warning Washington told her that she was jeopardizing her job by selling food; that she
continued to sell food after late June 2009 but she did it outside the gate on Holmes Road until
Randall Coleman came to that location and told her that she could not sell food there; that after
June 2009 she continued to sell food on Ozburn property because her husband had lost his job
and they needed the money; that when she received her final warning her husband was back to
work and she did not do it anymore; that after September 2009 she did not continue to sell food
anywhere inside the gates of Ozburn; that Phil Smith did not talk to her before she got her
written, final warning about Ozburn’s solicitation policy; that Smith did not have a meeting with
her where he read a letter regarding what the solicitation policy is at Ozburn; that Phil Smith
never talked to her while she was selling food out of her car in the parking lot; that she never
admitted to Smith that she was selling food in the parking lot and he never told her that Ozburn
did not want her selling food out of her car because people might get sick and she would have
health issues; that no one ever reported to her that they got sick eating her food; that on
September 29, 2009 she was in the break room at lunch time when Ozburn Vice President White
came in and saw an open cooler with food and drinks in it; that White left and returned a few
minutes later with Young; that Young asked her where the cooler was; that she had put the
cooler in the ladies shower room next to the break room; that another employee told Young that
the cooler was in the ladies room; that at the end of the day on September 29, 2009 Washington,
who had told her to stop selling food in June 2009, told her she was jeopardizing her job; that she
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signed R. Exh. 4, which is a final written warning dated “9/29/09”6; that she met with Phil Smith
and another supervisor whose name she did not know when she received her final warning; that
while the employee performance report of September 29, 2009 indicates that she claimed no
knowledge of any cooler, the situation rather involved her not answering when asked who the
cooler belonged to; that the first time she was warned was in late June 2009 when Washington
told her to quit selling food; that the second warning was probably the time Randall Coleman
told her to stop selling food when she was outside the gate; that when she signed the September
29, 2009 final warning she knew that any further issues with the solicitation policy could lead to
her termination; that when she was being escorted back to her department on March 1, 2010 to
retrieve her pen she asked Jim “How come Buddy can talk about the Union and I can’t” (Tr.
215); that she did not ask this question during her March 1, 2010 meeting with Washington, Phil
Smith, and Jim; that while Jim escorted her to get her pen and then to the time clock on March 1,
2010 she asked Jim “why Buddy that morning … was talking about the Union and just like me,
the employee, we cannot speak out about the Union” (Id. At 216); that she had no idea why she
asked Jim about employees speaking out about the Union if she had not done it that morning;
that she did not solicit on the morning of March 1. 2010; that sometime before March 1, 2010
she had been informed that Jerry Smith had been terminated by Ozburn; that her hand billing on
March 1, 2010 with Jerry Smith after she was sent home is the first time she engaged in any kind
of open union support; that when Phil Smith was leaving the Ozburn facility on March 1, 2010,
Jerry Smith told Phil Smith “It’s time to vote” (Id. At 220) and Phil Smith said “Let’s vote”
(Ibid.), “Let’s do it; let’s vote” (Ibid.); that after the final written warning in September 2009 she
stopped selling food at Ozburn; and that Phil Smith never told her to stop selling food but she
met with him when she received her final notice on September 29, 2009.
On redirect Kurtycz testified that she started selling food to her coworkers in April 2009
out of the back of her car in the parking lot when she was on lunch break; that in late June 2009
Washington told her that she had to stop because the Union was coming and what she was doing
was solicitation; that she then sold food out of the back of her car outside the gate off Ozburn’s
property on Holmes Road, GC Exhs. 16, 17, and 18; that Coleman drove up next to her car and
told her to stop doing what she was doing; and that on March 1, 2010 when she was handing out
Union flyers Phil Smith looked at her.
On recross Kurtycz testified that on September 29, 2009 when she was selling food in the
break room it was after she stopped selling food out of her car on Holmes Road; that “after June
2009 … [she] continued to sell food either in the break room or in the parking lot inside the gate”
(Tr. 238); that when she sold food out of her car on Holmes Road her car was parked in the street
in front of a private residence on the same side of the street as the plant but off Company
property; and that she made sandwiches, salads, sometimes she cooked hot food like chicken on
a stick, and she also sold chips and a drink.
Jeremiah Walker, who is a second shift OHL supervisor in the HP account, testified that
he never supervised Kurtycz who works on the first shift; that he was asked by Phil Smith to sit

6 The “EMPLOYEE PERFORMANCE REPORT” indicates that this is the “3rd time Glorina
has been warned to cease from selling food prepared by her on OHL property” and “any future
violations of OHL’s solicitation policy will result in further disciplinary action up to and
including termination.”
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in on two meetings between Smith and Kurtycz; that the first meeting occurred about August
(presumably 2009); that Smith told him that he had to give something to Kurtycz and he needed
another salaried employee to be there but Smith did not tell him in advance what discipline or
specifically what the purpose of the meeting was; that it is a regular practice that when you are
going to meet with an employee for disciplinary purposes that you have another manager or
supervisor present; that he and Smith met with Kurtycz in an office near the entrance to the HP
warehouse; that during this meeting Smith told Kurtycz that she was selling food and she was not
allowed to sell food; that Smith presented to and read to Kurtycz a letter which indicated that it
was against company policy to sell food or engage in any type of solicitation; that Kurtycz did
not deny that she was selling food; that Smith told Kurtycz that if she continued to sell food, it
could lead to further disciplinary action; that Smith gave the letter to Kurtycz at this meeting;
that two or three weeks later Smith again asked him to be present at a meeting Smith had with
Kurtycz; that the door to the office was closed during the second meeting; that at this meeting
Smith gave Kurtycz a 1-day suspension for selling food; that Kurtycz said that she was selling
food because her husband had been laid off and she was trying to supplement her income; that
R.Exh. 4, which is dated “9/29/09” and is a final written warning for selling food, (In this
instance, from a cooler in the break room, and the Employee Performance Report reads in part:
“This is the 3rd time Glorina [Kurtycz] has been warned to cease from selling food prepared by
her on OHL property.) was given to Kurtycz at this second meeting during which he was present;
that Smith read the final warning to Kurtycz and he gave a copy of it to her; that Kurtycz did not
take issue with the indication in the final warning that this was the third time she had been
warned to cease selling food on OHL property, and she signed the document; and that Smith read
to Kurtycz that portion of the final warning which referred to further disciplinary action up to
and including termination.
On cross-examination Walker testified that the office utilized for the first meeting
between Phil Smith and Kurtycz at which he was present was Washington’s office; that
Washington was not present during that meeting; that the first meeting between Phil Smith and
Kurtycz for which he was present occurred sometime between July and September 2009; that the
situation involved in the first meeting was that Kurtycz was selling food out of her vehicle in the
OHL parking lot outside the warehouse; that in the 3 years he has been a supervisor at OHL he
has never been involved in any other investigation or discipline relating to employee solicitation
activity; and that Kurtycz is the only employee he is aware of who received discipline for
violating the solicitation policy.
Ozburn employee Jearl Moore testified that she works in the HP account at Memphis;
that on March 1, 2010 Kurtycz worked in HP on the same shift she was on; that she saw Kurtycz
on March 1, 2010 “handing out Union rep cards to one of the other associates …. to tell her to
vote for the Union” (Tr. 592)”; that “Yes, sir … [she] did see her handing these to the
employees” (Ibid.); that this occurred on working time, Kurtycz was at work on the floor, we
were all at work in aisle 15 on the HP floor; that Kurtycz “told us … to fill out the card and vote
for the Union” (Id. at 593); that, with respect to whether Kurtycz was asking for any information
about their addresses or anything like that, Kurtycz “told us the Union card had all the
information that they needed for the name, the address, and phone number. She said fill that out
and vote for the Union” (Ibid.); that this occurred after their last break and it was between 1:30
and 1:45 p.m.; that she went and reported what happened to manager Washington; that the
following day, March 2, 2010 she received a telephone call instructing her to come in to the
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Ozburn facility and write out a statement; and that she wrote out the statement, R. Exh. 9, and
gave it to supervisor Pope. Moore’s statement reads as follows:
March 2, 2010
Every day Mrs. Kurts [sic] would talk to the employees about voting for the Union. She
would have the union cards in her pocket trying to get people to fill them out and also to
get them to go to the Union meeting. I witness her yesterday giving one of the cards to
employee telling her to fill out that card and vote for the Union.
Jearl V. Moore
On cross-examination Moore testified that she worked the second shift in HP but she was
put on the first shift in the early part of March 2010 or in February 2010; that when she worked
the second shift she worked from 3 p.m. to 11;45 p.m. and her shift overlapped with the first
shift; that Kurtycz worked on the first shift; that when she worked on the first shift her hours
were 7 a.m. to 3:45 p.m.; that Pope telephoned her at 8 a.m. on March 2, 2010 on her cell
telephone (It was his day off.) and told her to come in and submit a statement regarding what
happened the day before; that she wrote the statement at home and brought it in at 9 a.m. on
Tuesday March 2, 2010; that Kurtycz talked to employees every day about the Union starting
when the employees started having Ozburn meetings about the Union; that she estimated that
Kurtycz spoke to employees about joining the Union every day for 2 weeks; that the first time
she recalls Kurtycz speaking about the Union she spoke with her between 8 and 8:30 a.m., telling
her that they needed a Union and everybody needed to vote; that she told Kurtycz that she did
not want to hear it and she walked away; that she did not recall when the Ozburn meetings about
the Union started; that she did not know that the Union started organizing in late Spring 2009;
that she decided to report the activities of Kurtycz on March 1, 2010 because she saw Kurtycz
hand another employee a union card and told the employee to fill out the card and vote for the
Union; that she only knew the first name of the employee who Kurtycz gave the union card to on
March 1, 2010, and while she did not include the name of the employee in her statement, she did
tell Pope the first name of the employee who received the card the day she drafted her statement
and she told Washington on March 1, 2010; that the other employee’s first name is Evette and
she did not know her last name; that when Pope telephoned her he said that Jim was supposed to
tell her to write out a statement before she left work on Monday, and she should write out a
statement and bring it into his office; that when she left work on March 1, 2010 at 3:45 p.m. she
saw Kurtycz out by the curb but she did not pay any attention; that “[i]f she was out there [by the
curb handing out leaflets], I didn’t see her” (Tr. 610); that she could not say there was anybody
hand billing out at the curb on Holmes Road on March 1, 2010 when she left the facility; that she
saw Kurtycz give the union card to Evette after the last break, and the last break is a 15 minute
break between 1:30 and 1:45 p.m.; that she saw Kurtycz give Evette the union card between 1:30
and 1:45 p.m. during the break time but “[w]e was not out the [sic] building. We was still on the
floor” (Id. at 614); that on March 1, 2010 she told Washington “I’m just tired of hearing about
the Union” (Id. at 616) even though on March 1, 2010 no one was talking to her about it; that she
did not see Kurtycz with a union card before March 1, 2010; that Kurtycz gave Evette the union
card when everybody was clearing out to go on break at about 1:30 p.m.; that she knew what the
union card looked like because another employee received one in the mail and the employee
(She did not know the employee’s name.) showed the card to her during work time the week
before March 1, 2010, and “[w]e get in the mail, they were coming to our addresses” (Id. at 620);
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that she did not open the mail from the Union; that she does not discuss the Union with anybody;
that with respect to the employee who showed her a union card in the week before March 1,
2010, they were not talking about a union card on work time in that “[h]e was just showing me
the card” (Id. at 621); that the employee who showed her the card no longer works at Ozburn;
that “Yes” it was a woman who showed the union card to her about a week earlier than March 1,
2010, “No” she did not know her name, and “No” she did not ever know her name (Id. at 624);
that she did not report this incident to Pope or Washington because “[s]he never asked me to fill
out the card. She just told what the card looked like” (Ibid.); and that the union card that Kurtycz
gave to Evette was white and not blue or green.
On redirect Moore testified that she told Washington that Kurtycz gave the union card to
Evette in the cluster area where she was picking parts; and that Evette, who worked on the
second shift, came to work early that day, she had just come in, and she was not on break.
On re-cross Moore testified that when she saw Kurtycz give a union card to Evette she
was going to break, the supervisor had already hollered break; and that she continued to pick on
her break time when Kurtycz gave the union card to Evette.
Subsequently Moore testified that she did not originally testify that Kurtycz handed union
cards to other employees on work time; that the only employee she saw Kurtycz give a union
card to was Evette; and that when Kurtycz solicited her during work time about joining the
Union she did not report this to management.
Ozburn employee Lashunda Hill testified that she works in the HP account; that she saw
Kurtycz talking to people about the Union the whole time the Union thing was going on [“once
they started giving us the Union flyers saying that there would be an election” (Tr.637)], all the
way up until she was terminated; that on more than one occasion, when she was working on the
floor picking in the cluster area, Kurtycz gave her a union card and tried to get her to sign it; that
she had the same working hours as Kurtycz; that on one occasion when she was with Moore, she
saw Kurtycz hand union cards out in the cluster in that Kurtycz “walked up to both of us and
handed - - gave us union cards and asked us to sign them” (Id. at 638); that this occurred on a
Monday and it was “the last time she [Kurtycz] did it” (Ibid.); that “the last time was the same
week maybe within … [7] days of it [when Kurtycz was no longer at Ozburn]” (Id. at 639); that
this was the last time that Kurtycz gave her a union card and this was the only time she was with
Moore when this occurred; that this might have occurred the day before because she was not at
work the day Kurtycz was terminated; that Kurtycz had tried to hand her a union card before
this; and that she had seen Kurtycz trying to hand cards to other people before and it happened
on work time out on the floor.
On cross-examination Lashunda Hill testified that Kurtycz tried to get her and Moore,
when they were together, to sign union authorization cards around March 1, 2009, shortly before
Kurtycz was terminated; that Kurtycz also told them that they should vote for the Union; that she
did not take the card from Kurtycz, and “I told her to leave me alone because I was tired of
hearing about the Union” (Tr. 642); that Moore went to inform a manager; that she did not know
[“I have no clue.” (Ibid.)] what time of day Kurtycz tried to give her and Moore union cards to
sign, she did not know if somebody had just hollered break, but she “just knew” (Ibid.) that they
were on the clock because they were on the floor; that breaks do not start until the employees
leave the cluster picking area; that it is possible that someone hollered break before Kurtycz
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walked up to her and Moore; that Moore was standing in the area when Kurtycz tried to give
her, Hill, a union card; that she does not go by the name Evette; that Evette is not a nickname or
a name anyone calls her; that she immediately told lead Earl Johnson what happened with
Kurtycz, saying that “I’m tired of hearing about the Union” (Id. at 646) and “Glorina is
constantly hounding us about the Union.” (Ibid.); that she had seen a union card before when a
lady who worked in another account showed her a white union card where one specifies their
name, address, and phone number; that she did not know the name of the lady, who approached
her once to try to get her to sign the card in the break room when the organizing first started in
August 2009; that she did not report that solicitation to management; that she did not tell anyone
other than her lead about the Kurtycz solicitation; that she never reported the other occasions
when she was solicited to sign a union card; that she reported the March 1, 2010 Kurtycz
solicitation because she was fed up, “I was tired of the Union thing” (Id. at 650); that March 1,
2010, which was Kurtycz’s last day on the clock working in the HP department, was the day
Kurtycz tried to get her and Moore to sign a union card; that Kurtycz has approached her in the
break room about the Union; that on March 1, 2010 she, Kurtycz, and Moore could have been
within an arm’s length of each other; that she has never taken a union card from Kurtycz; that
she did not observe Kurtycz approaching Moore and offering her a card prior to March 1, 2010;
that when she left work on March 1, 2010 at 3:45 p.m. she saw union people handing out flyers
but she did not know who was handing out union flyers that day; and that she was not sure about
the color of the union card an employee tried to get her to sign in August 2009, and she did not
look at the card Kurtycz asked her to sign.
Washington, who is an operations manager at Ozburn’s Memphis facility, testified that
from 2009 through March 2010 she reported to White, who at the time was area director and is
now regional vice president; that supervisor Pope reported to her; that in 2009 and 2010 Kurtycz
was one of the employees under her management at the HP account; that Antonio Faulkner, who
was at the time in his first 90 days, complained that he bought some food from Kurtycz and he
had gotten sick; that Faulkner had received attendance points and he did not believe that it was
fair because he had bought food from someone on campus (described as buildings 5510 and
5540 on Ozburn’s premises); that around the end of August or the beginning of September 2009
she met with Young who instructed her to meet with Kurtycz, inform her that the Company had
a solicitation policy and she, Washington, had to start following it by enforcing it as far as
employees selling food, Avon, or anything on campus; that since she knew that different people
were selling different things she did not meet individually with Kurtycz but rather she had a
meeting with the first-shift employees in HP as part of their morning start-up meeting; that she
told the employees that due to an issue with an employee, she had to start enforcing the
solicitation policy, she gave them the page number of the policy in the Handbook, and she told
them there could be no more selling of anything on campus; that she also had several informal
conversations [“reminders” Tr. 665)] with Kurtycz in regards to her selling after employees told
her that Kurtycz was still selling food; that Kurtycz denied selling food and she told Kurtycz that
she was at risk of being written up; that between 1:30 and 1:40 p.m. on March 1, 2010 Moore
told her that Kurtycz was asking employees for their phone numbers, addresses, and to sign a
union card; that she then telephoned Young who told her that she was off site and she should
contact White or Coleman, who is the vice president; that she telephoned Coleman, whose office
is around the corner from hers; that Coleman asked her if Kurtycz engaged in this conduct during
working hours; that she went and asked Moore this question and Moore said yes it was done
during working hours and it occurred in the cluster area at the table where they pack the cards
into the envelopes; that Coleman told her to meet with Kurtycz; that she met with Kurtycz with
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Jim Cousino, who is the second shift operators manager in HP, present; that Cousino, who led
the conversation, told Kurtycz that management had received a complaint from a picker that she
was harassing employees on the floor; that Kurtycz denied this and asked Cousino what he was
talking about; that Cousino told Kurtycz that the employees felt harassed because she was
asking for addresses and their telephone numbers and to sign a card; that Kurtycz responded
“how is that any different from one of your managers, specifically Buddy Lowery, coming out
on the floor and talking to us, talking to me about the Union” (Id. at 669); that during this
meeting Kurtycz did not deny asking people for names and addresses and to sign union cards;
that Kurtycz was told that she was suspended, pending a further investigation and she should call
her by noon the following day; that she went to get a statement from Moore but she had already
been sent home because the volume was low; that Pope came to her and Cousino and Pope “said
that he has another [p]icker who had complained, Crawford” (Id. as 670); that she did not know
about Crawford when she sent Kurtycz home; that Pope told her that Crawford complained that
Kurtycz had asked employees for their name, address, telephone number, and to sign a union
card; that she told them to get a statement from Crawford; that she reported all of this to
Coleman; that Cousino told her that Ozburn employee Florida Marshall told him that Kurtycz did
not approach her but she observed Kurtycz talking to other pickers about the Union; that Pope
gave her his own statement about his conversation with Crawford, R. Exh. 117; that on March 1,
2010 she was aware that Kurtycz had received a final written warning in September 2009, she
had the warning in her hand when she met with Kurtycz on March 1, 2010, and she discussed
this final written warning with Kurtycz on March 1, 2010; that on March 1, 2010 Kurtycz told
her that she understood Ozburn’s solicitation policy and she explained it again to Kurtycz during
the March 1, 2010 meeting; that she never told Kurtycz that she had to quit selling food because
of the Union; and that prior to March 1, 2010 when Kurtycz was passing out union cards, she did
not know how Kurtycz felt about the Union.
On cross-examination Washington testified that in the spring of 2010 the second break
(afternoon break) for the day shift in the HP account would be about 1:15 or 1:30 p.m.; that in
late August or early September 2009 she had a conversation with Faulkner after Pope spoke with
Faulkner and Pope told her what happened; that she told Faulkner that he needed to speak with
HR about getting points because as far as she was concerned, he would be getting the points; that
subsequently (in early September 2009) she spoke with Young about the Faulkner incident,
Young told her that she had spoken with Faulkner, Young asked her if she was aware that OHL

7 Pope’s statement reads as follows:
Tiraney Crawford came into the inplant office around 2:15 pm on 3/1/10 and asked if she
could speak with me. I replied yes, what’s the problem? She asked if it was okay for an
employee to pass out union cards and ask people to sign it. I replied, only if it’s during
non-working hours. I asked who the individual you are referring to is. She replied, the
little Chinese lady. I asked if she was referring to Glorina Kurtycz. She said yes. I then
asked her to explain in detail what had taken place. She stated that she had observed
Glorina talking to several employees at the table where Glorina was stuffing the cards
into envelopes. Glorina was telling them about the union and trying to get them to sign
cards. Tiraney stated that she was not in the group but was close enough to hear what was
being said.
I then found Vania Washington, Operations Manager for the HP account, and informed
her of the situation. My next call was to Phil Smith who is our Security Manager.
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had a solicitation policy, Young told her that she needed to enforce this policy, and Young told
her that employees should not be selling anything on the campus; that she told Young that
employees sell Avon and Mary Kay products; that Young said “Well, that stops today. So you
need to meet with your group” (Tr. 687); that she knew about the sale of Avon and Mary Kay
products in her department and it was something she had tolerated; that she was not aware of
people selling DVDs in HP; that she heard that prior to the presidential election in November
2008 Young had been selling Obama T-shirts but she did not buy one; that Pope and not
Faulkner told her that Faulkner bought the food from Kurtycz; that the next day she held a
departmental meeting (during the regular start-up meeting) with HP employees in which the
Company rules were discussed; that at this meeting she told the employees “[d]ue to an issue
with an employee, OHL has a solicitation policy that … I have now been told by HR that I have
to enforce, which includes no selling of anything on campus, on property…. And if anyone is
found in violation, they could be … disciplined for it” (Id. at 693); that she had never counseled
an employee or had a meeting about solicitation activity prior to that time; that during the
meeting she listed, in response to an employee’s comment, some of the things that she knew
were being sold on campus, namely clothing, Mary Kay products, Avon, and Girl Scout cookies;
that she told the employees “[t]here will be no selling of anything” (Id. at 695) and then she went
on to list some of the items she knew about; that she did not mention a union card at this
meeting; that she was present at a meeting with Phil Smith and employee James Bailey regarding
alleged employee complaints that Bailey was distributing a flyer in working areas during
working time, which is memorialized in an August 25, 2009 letter from Phil Smith to Bailey, GC
Exh. 31; that notwithstanding the Bailey matter, it was her testimony that her conversation with
Young in early September 2009 was the first time that she learned that OHL intended to start
enforcing its solicitation policy; that she did not recall ever speaking to Kurtycz about selling
food before the above-described departmental meeting in early September 2009; that she was
aware that Kurtycz was selling food but she was not sure when Kurtycz started; that she never
purchased food from Kurtycz prior to the above-described departmental meeting but Kurtycz did
give her a sandwich and did not charge her for it; that she ate the sandwich and it was okay; that
after the departmental meeting she had informal conversations in 2009 and maybe early 2010
with Kurtycz after she had been told by employee Yessenia Calix and Fed Ex coordinator Diane
Gooden, that Kurtycz was still selling food in the parking lot and upstairs in the break room; that
she did not see Kurtycz selling food but she told Kurtycz “I’m hearing that you’re still selling
food” (Id. 699) which Kurtycz denied; that she estimated that she spoke informally with Kurtycz
three to five times between the time of the departmental meeting and March 1, 2010 about
selling food; that she was aware Kurtycz received a final warning in September 2009 the same
day the warning was given; that of the three to five times, she estimated that she spoke with
Kurtycz two times about selling food after the September 2009 final warning; that since she did
not see Kurtycz selling food after the September 2009 final warning, she did not formalize or
memorialize her response to the situation (notwithstanding the fact that she had complaints from
employees); that each time she spoke with Kurtycz about selling food after the final warning,
Kurtycz denied it; that she did not report to Young that she was getting reports that Kurtycz
continued to violate the involved Company policy; that she did not ask Calix and Gooden to
provide written statements; that prior to March 1, 2010 she had never conducted in the 10.5 years
she was in HP any kind of investigation relating to an employee violating the solicitation policy;
that on March 1, 2010 Moore came to her office about 1:40 p.m., which could have been break
time; that Moore told her that she was with a group of employees at the table when Kurtycz
asked the employees for names and addresses and to sign a USW card; that Moore told her that
this occurred on the floor during working hours; that the employees generally do not take breaks
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on the floor; that Moore told her that it happened during working hours when she went back to
Moore and asked her at the behest of Coleman; that if the employees were on break it would not
have been a violation of the Company’s solicitation policy; that she doubted that there would
have been a need for the March 1, 2010 meeting with Kurtycz if Moore had told her that what
she observed occurred after break was called even though the employees were on the work floor;
that Evette Gonzalez works on the second shift in HP; that during the March 1, 2010 meeting she
told Kurtycz (a) asking employees for their addresses and phone numbers is a form of
solicitation, (b) it was a violation of the Company’s solicitation policy because she was doing it
on work time and not break time, and (c) she was allowed to pass out cards or flyers during
breaks, non-working hours or on the parking lot; that during the March 1, 2010 meeting Kurtycz
never denied soliciting employees during work time, and Kurtycz asked “[h]ow is it any different
from what Buddy does when he come out to the floor to talk to me” (Id. at 716); that Kurtycz
said “[w]ell Buddy comes out and he … spoke with me about the Union. So how is that any
different from me talking to my coworkers about the Union” (Id. at 717); that Cousino explained
to Kurtycz that Lowery is a manager who was just giving out information and not asking
anybody for anything; that she was not sure if, when she left the facility on March 1, 2010 she
saw Kurtycz handing out Union flyers with other people; that she was told on March 1, 2010 by
someone, she could not remember who, that they had seen Kurtycz out on the line handing out
flyers; that she did not take formal action against Kurtycz when she allegedly continued to sell
food after the final written warning because she did not see it herself; and that she herself never
saw Kurtycz engage in any kind of Union solicitation or distribution prior to the time she was
fired.
On redirect Washington testified that Kurtycz never said that she was on break or that the
employees she was giving cards to were on break; and that since her September 2009 meeting
with HP employees regarding solicitation, she was not aware of any other employees that
violated OHL’s solicitation policy.
Subsequently Washington testified that if a supervisor announces a break and one of the
employees on the floor decides that he or she wants to just finish up the task that they are doing
at that moment, the fact that that employee continues for a minute or so does not nullify the fact
that the supervisor has declared a break, it is still a break; that when the supervisor or lead
declares a break, the conveyor line, which runs throughout the HP operation, is shut down, the
noise level is reduced, and you can hear a lot better; and that during her meeting with Moore on
March 1, 2010 Moore did not mention either Evette Gonzalez’s or Hill’s name.
Crawford testified that she works for Ozburn in the HP account; that on March 1, 2010
she came to work “[a]round about 3:00p.m.” (Tr. 743); that when she came to work she was
going back into the cluster area and she saw Kurtycz in the corner talking to other employees
about the Union; that Kurtycz then came over to her and another employee, Nia Johnson, and
asked for their names, numbers, and if they were interested in the Union; that Kurtycz asked
them if they read the material she gave them the day before, a pamphlet about the Union, and
they told her they had not; that she then reported the conversation to her supervisor, Pope; that
when Kurtycz gave her the pamphlet she was working at the time in a work area; that she was
asked to write a statement, R. Exh. 10, about her conversation with Kurtycz; that the statement
shows that her March 1, 2010 conversation with Kurtycz occurred at 2:15 p.m.; and that neither
she nor the other employees were on break at 2:15 p.m. As received, the copy of the statement
reads as follows:
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& other OHL Employees @2:15p today (03-01-2010) & asked i[f] we were voting for the
union, did we read the materials she had given out the day before. We replied ‘no.’
She then asked if we woul[d] like to give our address & n[Since the line ends with only
‘n,’ it is not clear the word is number or name or some other word beginning with the
letter ‘n.’] for the union to contact us.
We replied ‘no’ & walked aw[ay.]
Regarding this statement, Crawford testified that it reads “Me and other OHL employees at 2:15
today ….” (Id. at 745); that she did not have the original of this statement in that she left it in the
office at Ozburn after she wrote it; that the word “Me” which appeared before “& other OHL
employees ….” was over on the left-hand side of the statement; and that there was nothing in the
original statement, except the word “Me” that does not appear on the document received in
evidence at the trial herein as R. Exh. 10.8
On cross-examination Crawford testified that she could not remember if she came into work
for her second shift at 2 or 3 p.m. on March 1, 2010 but she believed that it was 3 p.m.; that her
above-described March 1, 2010 statement indicates that she came into work at 2 p.m. on March
1, 2010; that Kurtycz approached her and Nia Johnson, who is also a second shift employee,
when they were in the middle of the floor, not in an aisle and not where there is a table; that she
and Nia Johnson were preparing their carts to go pick and Kurtycz came up to them and asked
Nia Johnson if she had reviewed the pamphlet she gave to Nia Johnson the day before; that Nia
Johnson told her she did not; that Kurtycz asked her if she was going to vote for the Union and
she told Kurtycz that she did not think that was any of her business; that Kurtycz asked her if she
gave her some information would she look it over; that when she replied in the negative, Kurtycz
gave her some material and then went on to other people; that she threw the material away; that
Kurtycz had a list with names and with peoples’ numbers in her hand and she asked them if she
could take their name and write their number or addresses down so she could come to us and tell
us more about the Union; that the conversation with Kurtycz occurred about 2:15 p.m. on March
1, 2010; that she immediately reported this conversation to her supervisor, Pope, who asked her
if she was willing to write a statement; that while she was in Pope’s office she wrote the
statement, signed it, dated it, and gave it to Pope; that she told Pope that Kurtycz gave her a
pamphlet; that she did not tell Pope that Kurtycz had union cards that day; that her statement
does not mention the pamphlet she received and she does not name Nia Johnson in the statement;
that she made a mistake in indicating in her statement that there were other employees as
opposed to just one other employee, Nia Johnson; that she told Pope that Nia Johnson was with
her when Kurtycz spoke to her on March 1, 2010; that she did not tell Pope that she overheard
Kurtycz talking to a different group of employees; and that she did not look what was on the
pamphlet but rather she assumed that it was a union pamphlet.

8 This cannot be correct in that even with “Me” added the first sentence is not complete.
Also, it appears that four of the words at the end of lines were not copied fully so that whatever
appears at the end of those four lines are not complete words.
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On redirect Crawford testified that she, Nia Johnson, and Kurtycz were not on break when
the involved conversation took place; that Kurtycz was talking to other employees who were not
on a break before Kurtycz approached her and Nia Johnson; and that Nia Johnson told her that
the pamphlet Kurtycz gave her the day before was about the Union. On recross Crawford
testified that Nia Johnson told her that the pamphlet was about the Union when Kurtycz gave her
the pamphlet on March 1, 2010.
Jerry Smith, who worked at Ozburn from 2007 until he was terminated on August 28,
2009, testified that he gave Union handbills to arriving and departing employees in front of
Ozburn’s facility on Holmes Road in Memphis on March 1, 2010, beginning at 2 p.m.; that
between 2:30 p.m. and 3 p.m. Kurtycz was driving out of the facility and she told him that they
sent her home; that when he asked her why Kurtycz said “Because of the Union” (Tr. 274); that
Kurtycz parked her car and then helped him handbill; that while he was hand billing with
Kurtycz that day he saw Phil Smith in the line of vehicles leaving Ozburn’s facility; that he told
Kurtycz, who was standing next to him, not to give Phil Smith a handbill, Smith pulled his hand
back, and Smith said “Yeah, let’s vote” (Tr. 275); and that he and Kurtycz left from in front of
Ozburn’s facility at 5 p.m. that day.
On cross-examination Jerry Smith testified that when he handballed on March 1, 2010, it
was 2 weeks before the election; and that Phil Smith only said “Let’s vote” (Tr. 277).
Subsequently Jerry Smith testified that Phil Smith said three words and not two words,
namely “Yeah, let’s vote” (Tr. 278); that he did not say anything to Phil Smith before Phil Smith
said these three words; that he did say “Let’s vote” (Tr. 279) to the people in the car in front of
Phil Smith and then Phil Smith said “Yeah, let’s vote” (Ibid.) as he drove up to Kurtycz and Jerry
Smith; and that Phil Smith was in a position to overhear what he, Jerry Smith, told the people in
the car in front of him.
Kurtycz testified that on March 2, 2010 she telephoned Washington at 11 a.m. and was
told by Washington that she should call her at 1 p.m.; that when she telephoned Washington at 1
p.m. she was told that the matter had not yet been resolved and Washington would call her later;
that Washington telephoned her at 4 p.m. and asked her if she could come to the office; that
Washington and Jim Cuisino were in the office and she was asked if she remembered whether 6
months ago she was soliciting; that when she said she remembered, she was told she was
terminated; that they asked for her badge and they gave her a notice of separation, GC Exh. 59;
that during the meeting Jim read her something but she did not understand what he was reading
and she asked for a copy of it so that she could hold it and read it herself; that Jim and
Washington both said “no” (Tr. 179); that when she asked for a copy of the statements that
employees gave to them Washington said “no” (Ibid.); and that they asked her to sign a
document other than the separation notice, she asked for a copy, they said “no” (Ibid.), and she
refused to sign the document.
Washington testified that on March 2, 2010 [“the following day” (Tr. 675)] the
statements of Pope, Crawford, and Moore regarding the conduct of Kurtycz were sent to Human

9 On the lines following “If other than lack of work, explain the circumstances of this
separation:” the following is written: “violation of company policy solicitation.”
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Resources; that she was not “involved in any decision about any disciplinary action resulting
from this incident” (Ibid.); that she was not “involved in any decision about terminating” (Ibid.);
that Kurtycz telephoned her around noon on March 2, 2010 but she had not received any
instructions at that time about what disciplinary would be taken, if any; that later in the day when
she was instructed to terminate Kurtycz she called her to come to her office; that R. Exh. 5 is an
Employee Performance Report that she prepared and gave Kurtycz on March 2, 2010 to read10;
that she told Kurtycz at the March 2, 2010 meeting that (a) they did the investigation, (b) they
turned the information over to HR, and (c) they had been given permission to terminate her
based on the violation of the Company’s solicitation policy; that Kurtycz asked if she could take
a copy of R. Exh. 5 home because she wanted her husband to read it; that she told Kurtycz that
Company policy does not allow management to give out copies of it; that although given the
option, Kurtycz did not write any comments on R. Exh. 5; that Kurtycz was told she was accused
of asking employees for their names and addresses during working time in work areas; and that
she prepared a statement about the events of March 1, 2010. It reads as follows:
Jearl More, a picker in the HP shipping department, approached me … yesterday around
1:40 pm and asked if I had a minute to speak with her. I responded yes, and asked what
could I do for her? She said that management needed to speak with one of the pickers
because she was harassing the employees. I asked who was the picker and why did she
feel she was being harassed? She replied Glorina Kurtycz was the picker. She then went
on to explain that Glorina had approached several employees asking if they wanted to
sign a union card. Jearl also stated that Glorina had asked for their phone number and
address so that a USW rep could contact them.
I immediately informed Evangelia Young. She told me to get with Randall Coleman or
Karen White because she was not on site. I informed Randall and he asked me to go back
to Jearl and ask if this occurred on the floor during work or while they were on break. I
went back to Jearl and asked where the interactions had occurred. She replied on the
warehouse floor while we were trying to pick in the cluster area.
James Cuisino and I called Glorina into my office. He explained to her that we had
received a complaint from one of her co-workers in regards to her conversations with
them about the union. He went on to remind her that she was already on a Final Written
Warning for solicitation. I then intervened and reminded her of the company’s policy
regarding solicitation during working hours. I told her that it was okay to pass out her
flyers or cards during breaks and non-working hours but she would not be able to solicit
her co-workers during working hours. I asked if she understood, she replied yes. Jim told
her that we would be sending her home pending an investigation. I gave her my phone

10 The Employee Performance Report, which is dated “03/02/2010,” has check marks next to
“Discharge” and “Violation of Company Policy.” The following appears under “Explanation of
Employee Performance:” “2 employees went to management to complain about Glorina
soliciting union information to [sic] them during working hours. Management asked the
employees to provide statements to [sic] their observations. All statements were turned over to
HR for review.” And, the following appears under “Action Taken:” “Glorina is already on a final
written warning for solicitation on 9/29/09. OHL Corporate has ruled this is a terminable
offense.” Nothing is written under “Employee Comments.” Kurtycz did not sign on the line
which indicates “I have read this report and am aware that I may express my view.”
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number and asked her to call me by 12 pm on 3/2/10 before returning to work. [R. Exh.
12]
On cross-examination Washington testified that she believed she received Pope’s
statement regarding his conversation with Crawford on March 2, 2010; that she sent her
statement and the statements of Moore, Crawford, and Pope to Young in HR on the morning of
March 2, 2010; that this was the extent of management’s investigation and it was completed on
the morning of March 2, 2010 and forwarded to HR; that she was not consulted or asked for a
recommendation regarding the disciplining of Kurtycz with respect to what allegedly occurred
on March 1, 2010; that on the afternoon of March 2, 2010 she received a telephone call from
either White or Pope who told her to go ahead and terminate Kurtycz; that she telephoned
Kurtycz and asked her to come in; that she read the EPR out loud to Kurtycz, who had a copy of
it so that she could read it; that she asked Kurtycz if she had any comment and Kurtycz said
“[n]o” (Tr. 728); that when Kurtycz asked for a copy of the EPR she told Kurtycz that the
Company did not make copies for anyone to take out; and that she told Kurtycz that she received
a final warning in September for solicitation and by soliciting during working hours or on the
floor while pickers were working this second time, that automatically terminated her because she
had already gotten a final warning earlier.
Cousino, who is a second shift Operations Manager of OHL for HP Home and Home
Office, testified that on March 1, 2010, Washington came to him and told him that Kurtycz was
soliciting folks on the floor and Washington wanted him to be present at her meeting with
Kurtycz; that the meeting occurred in Washington’s office with just the three of them present;
and that the following transpired:
Conversation that we had with Ms. Kurtycz was that we had heard through an individual
that she was soliciting union membership on the floor. We were asked to talk to Glorina
about the situation, so we pulled her in the office. We explained that what she was doing,
at that time, was not allowed and we also reminded her that, at that time, she had already
been on a final written warning though the company for a previous solicitation event.
At that time, we had asked, at the end of the conversation, Glorina that she was
suspended for the balance of the day. That we would contact her or have contact by the
next day on coming back in to resolve the situation. [Tr. 806]
Cousino further testified that he was not involved in Kurtycz’s previous warning; that Kurtycz
did not deny the allegation at the March 1, 2010 meeting ; that Kurtycz said that she thought that
it was okay to engage in that activity and Kurtycz brought up why it was okay for a member of
management to involve themselves in similar type activity; that Kurtycz named Lowery; that
Kurtycz was then told that Lowery is a member of management and he is allowed to pass
information along and he was not soliciting or asking anything in return; that he escorted her out
on March 1, 2010; that he was not further involved in this situation until March 2, 2010 after the
decision was made on the resolution of this matter; that during the meeting he and Washington
had with Kurtycz on March 2, 2010 an Employee Performance Report, R. Exh. 5, was presented
to Kurtycz which indicated that she was terminated due to the solicitation event and having been
on a previous written warning; that Kurtycz did not sign R. Exh. 5; that Kurtycz said that she
wanted to take the form home and have her husband review it; that Kurtycz was told that this
was not allowed; that during the March 2, 2010 meeting “the only question that still remained
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was why was it okay for Mr. Buddy Lowery to do what he did and not for her, but there was no
denying of the claim against her” (Tr. 810 – 811); that he did not remember if Kurtycz said that
she was on her break time when she was doing the soliciting; that he did not recall Kurtycz
asking for any statements of the witnesses; that before this situation he did not know how
Kurtycz felt about the Union; that depending on volume second shift employees can start as early
as 1 p.m.; that on Monday March 1, 2010 Ivette Gonzalez reported to work at 1 p.m. (See R.
Exh. 14 which is her time card record.) and her first break would have been at 3 p.m.; that on
March 1 and 2, 2010 Phil Smith was not involved with the meetings with Kurtycz; and that he
did not recall if Phil Smith was standing in the doorway while the conversations with Kurtycz
took place.
On cross-examination Cousino testified that he was not aware of any other employee, as
of March 1, 2010, other than Kurtycz, receiving discipline for violating a solicitation rule; that
before the March 1, 2010 meeting with Kurtycz, Washington told him about Kurtycz’s prior final
written warning, and he was informed that one person had come forward about Kurtycz
solicitation on March 1, 2010; that at the March 1, 2010 meeting Kurtycz did not deny the
allegation and she only asked why she couldn’t do it and somebody else could; that he did not
ask Kurtycz to give a written statement about the allegation; that on March 1, 2010 he escorted
Kurtycz out of the facility; that he never told Kurtycz that she was harassing her coworkers; that
there have been times when he was asked to provide feedback on a list of employees; that he
provided the feedback verbally to his manager, Scott Durban, and White; that the feedback
involved indicating if any of the employees were having any specific issues or if they had any
questions that needed to be answered; that he was not aware that Kurtycz handed out union flyers
when she left the facility on March 1, 2010; that as he recalled it, Kurtycz asked for the original
of the Employee Performance Report to take to show her husband; that if Kurtycz had asked for
a copy of the Employee Performance Report, regardless of whether she signed it, she would have
been provided a copy; and that the only reason Kurtycz did not get a copy is that she did not ask
for one.
Rayford testified that her understanding of Ozburn’s policy on soliciting or selling items
in the workplace is not to sell or buy at work but it is allowed on employees’ breaks and lunch;
that she has sold or helped to sell items to coworkers while either she or they were not on break
or they were not on lunch; that in October 2008, before the election of President Obama, while
she was on her lunch break, she saw Young in the break room with a pink Obama T-shirt; that
Young told her that “she was doing it for her mama campaign, which was in Collierville or
Cordova, that where the campaign – headquarters was at” (Tr. 319): that Young told her that the
shirt costs $10, and she told Young that she wanted two; that she offered to solicit orders for the
T-shirt from employees in Water Pik; that she went to Young’s office and Young gave her a
document showing the colors and sizes available and told her that she wanted her to write the
orders down on a blank sheet of paper; that Young told her to do the whole building, including
“Nat Geo” (Id. at 321); that she went to clock in from her lunch break and then she came back to
Young’s office; that “I got the pink shirt that was on her” (Ibid.) and she took the piece of paper
and told Young that she would be back; that she showed the pink T-shirt to employees and took
orders for Obama T-shirts; that she told employees that she was selling the T-shirts for a lady
because Young told her not to mention her name; that between 25 and 30 people in Water Pik
indicated that day that they wanted an Obama T-shirt; that the employees would sign the paper
indicating the color and size they wanted; that she sold one to supervisor Dye who told her that
he could not write his name on the paper so she wrote his name and indicated that he wanted a
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black shirt, size 2X ; that Dye and the approximately 30 employees who signed the paper were
on the floor working when she solicited them; that she told Dye that she had to go the Fiskars
account in the same building and she drove her pallet jack over there with the pink Obama T-
shirt and the sheet of paper; that about 30 people in Fiskars, who were not on break, ordered the
T-shirt; that she spent about 15 to 20 minutes in Fiskars; that she went to another account in the
same building, Nat Geo, and signed up about 30 to 35 people there; that the people in Nat Geo
were not on break; that she did not go to HP because Young told her that somebody else was
taking care of the employees in that account; that she then took the paper with the orders to
Young; that this day she had taken her lunch break about 11:45 a.m. to 12:15 p.m.; that when she
went back to Young’s office it was close to the time she, Rayford, was getting off from work,
namely 1:45 p.m.; that she estimated that she returned to Young’s office at about 1:15 p.m.; that
when she handed Young the sheet of paper with the orders Young said “Girl, you work miracles”
(Id. at 327); that Young told her that the shirts would come in the following week; that the
following week she was working on the floor and Dye told her that Young needed to see her in
Young’s office; that there were shirts laying everywhere in Young’s office and Young pointed to
a box indicating that “The Water Pik is in that box” (Id. at 328); that she helped Young pack
some of the boxes; that she got Dye to carry the box with the T-shirts for Water Pik from
Young’s office, take it downstairs and put it on her pallet jack; that she was not on break at this
time and Dye told her not to hold the T-shirts up and she should not pull all of the shirts out of
the box at one time; that she drove to Water Pik, collected money from the people and handed
out the T-shirts; that if anyone received the wrong size, she told them to see Young; that she took
the money she collected to Young at about 1:30 or 1:40 p.m.; that when she distributed the T-
shirts, starting about 1 p.m., neither she nor the employees she distributed shirts to were on
break; that Young asked her to distribute some more T-shirts; that she then distributed shirts in
Nat Geo to employees who were not in break; that for about 1 year (2008 to October 2009) she
sold designer purses that she purchased at a flea market to other employees when they were not
on break; that she sold the purses out of the trunk of her car; that she sold a total of six to eight
purses to Young at different times; that some of this was done on her work time; that Dye would
tell her that Young needed to see her in Young’s office, she would go to Young’s office, Young
would tell her that she needed a certain color or style purse, she would go to her car and get the
purse, put it in a plastic bag, and go back to Young’s office and give it to her; that when she went
to Young’s office and then got the purse out of her car trunk she was not on break time; that she
sold purses to a lot of employees at Ozburn in the HP, Nat Geo, and Fiskars accounts; that they
used to come to her and ask her if she was the woman selling purses, she did not even know
them, she would ask them what type of purse they wanted, she would take the money, and then
she would go to the trunk of her car and get the purse; that sometimes when she had these
conversations with other employees she was not on break but she did not know if the other
employee was on break; that if she did not have the purse the employee wanted, she would bring
it in the next day; that she has brought purses to employees in the warehouse while she was on
work time; that Young came out to her car and picked out two or three purses; that Rivers, who
worked in Water Pik for about 1 year, leaving earlier in 2010, sold DVDs; that Rivers had the
name of the movie and the name of the employee to whom she was selling the DVD to on the
DVD which she carried on her pallet jack; that Rivers sold the DVDs on Company time; that she
bought about 10 DVDs from Rivers and each time she was on Company time when she
purchased (for $3) a DVD from Rivers; that supervisors Dye and Phillips were aware that Rivers
was selling DVDs; that Rivers collected the money and handed out the DVDs while the
employees were in their morning meeting for the 25 to 30 shipping and receiving employees in
Water Pik; that Dye and Phillips were present for these morning meetings; that in October 2009
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she observed Dye receive a DVD from Rivers and Dye giving money back to Rivers; that Rivers
had DVDs at the morning meeting every day; that an employee from Fiskars, who she knows
only as Annie, sold strawberry shortcakes in March 2010 sometime after the Board election; that
she bought one of the cakes for $3 and told Annie that she was not supposed to be doing that to
which Annie responded “Phil Smith gave me permission to do this” (Id. 341); that when she
asked, Annie told her that she was taking the cakes to the floor in her department; that a woman
named Doris, who works in inventory in Water Pik, sells Avon products at Ozburn; that Doris
came on the floor on Company time and distributed Avon catalogues and told the employees to
put the number of the item they wanted on the front of the catalogue, she would bring a receipt
back and let them know how much it is, and when the order came in she would bring it to them;
that she has looked at the Avon catalogue while she was on Company time and noted on the
cover the item she was ordering; that Dye looked into her Avon bag and she saw Dye looking
into River’s Avon bag; that when Doris delivered an order to her and other employees they
would be on work time picking orders; that she has left her Avon bag on her pallet jack while she
was working; that during the 3 years that she has worked in Water Pik, Doris has been selling
Avon products; that when she testified at the trial herein on July 15, 2010 Doris was still selling
Avon products at Ozburn; that before the Board election, Tammy Stewart sold a non-union T-
shirt which had thumbs down for the Union (and thumbs up for Ozburn) to her and, at Stewart’s
behest, she asked Herron who also purchased one; that when the shirts came in, White came to
Water Pik and told her and Helen to go over to building 5540 to get their T-shirts from Tammy;
that she and Herron were on Company time when White approached them; that Stewart was not
there and she gave another employee $2 for her and Helen’s shirt but the employee did not have
the correct sizes; that later Stewart told her that she left their T-shirts in the office with Dye; that
while she was on working time she went to Dye’s office and retrieved her T-shirt from by the
window while Dye was in the office; that an individual who she identified only as Brian, who
she believed worked in Fiskars Inventory, passed out free, orange “Vote no Union” (Id. at 350)
T-shirts to employees; that he gave her a shirt; that supervisors Dye and Phillips were on the
floor when Brian passed out the anti-union T-shirts; and that she has never been disciplined for
selling or purchasing items in the workplace on work time.
On cross-examination, Rayford testified that you have to go through security when you
are coming on the floor to go to work; that she brought a T-shirt through security and Dye
brought a whole box through security; that she brought purses through security and Young knew
that she sold purses on the floor; that she told Young that she was selling purses and Young saw
the purses on her pallet jack; that Annie sold the strawberry shortcake right after the Board
election and Annie told her that “somebody gave her permission to do it” (Tr. 392); that just
before the Board election, which was held on March 16, 2010, her name appeared in a Union
flyer which was distributed in the break room at Ozburn; and that she did not have a problem at
that point with anyone knowing that she supported the Union.
Ozburn’s employee Jenifer Smith testified that she has observed Ozburn employees sell
candy, T-shirts, and Avon while they are not on break at the Ozburn facility; that Ozburn
employee James Mitchell sold chocolate candy in her department for his son in mid- or late
2009; that James Mitchell sold the candy while the employees were working because he had it on
his pallet jack; that James Mitchell also had some candy under supervisor Alfreda Owens’ desk,
which is not a break area; that she and other employees in her department buy candy from James
Mitchell while they were on work time, Shiley Milan and Shelia Childress; that she observed
supervisor Owens buying candy from James Mitchell while Mitchell was not on break; that just
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before the March 2010 Board election she saw Ozburn employee Sondra Mitchell, who does not
work in her department, come into her department and sell orange Vote No T-shirts to employees
for $1 while they were on work time on the dock, which is a work area on the warehouse floor;
that Sondra Mitchell was in her, Smith’s, department selling T-shirts on two days; that Ozburn
employee Marshall Trotter from the Roland department came to her department three or four
times in late 2009 and sold candy; that she bought candy from Trotter one time while she was
working; that she saw coworkers Gladys Dawson and Bobby Hill purchase candy from Trotter
while they were on work time; that two other individuals, who she identified only as Ms. Betty
and Ms. Peggy, sold gift baskets in HP filled with “knick-knacks” (Tr. 4542) while they were at
work at Ozburn, and although she asked Ms. Peggy about the baskets, she did not purchase one
and she never saw anyone else buy one of the baskets; that Sondra Mitchell is an Avon
representative who brings Avon books to the employees and asks them if they want to order an
Avon product; that while she was in HP between 2006 and 2007 she ordered, while she was off
the clock, Avon from Sondra Mitchell; that when the Avon order came in she paid Sondra
Mitchell for it and received it while she, Smith, was on the work floor and not on break; that
“more recently than when … [she] made her purchase” (Id. at 468) she has seen Sondra Mitchell
come into the department and give Avon books to employees who are on work time; that she has
seen Ozburn employees looking through an Avon book while they are not on break or lunch; and
that more recently she has not seen Avon bags in her department.
On cross-examination Jennifer Smith testified that she guessed that employees are not
supposed to be selling things on the floor; that she did not recall a meeting where the supervisors
or managers explained that employees are not to be selling things on the floor; that she does not
know anything about the solicitation policy at Ozburn; that she did not recall the solicitation
policy being covered in any meetings with employees that she attended; that it did not cross her
mind that James Mitchell, Trotter, and Sondra Mitchell were not supposed to be selling things to
her on the work floor because they had been doing it for so long; that while she signed off
indicating that she received a copy of the new employee handbook in September 2009, she was
not going to say that she read it (Ozburn stipulated that it did not have and it did not produce a
handbook receipt acknowledgment for Jennifer Smith for any time in 2009. Tr. 523); that she did
not know whether Ozburn has a solicitation policy which prohibits people from selling things on
the floor; and that Owens was at the desk on the floor when she saw Owens purchase candy from
James Mitchell.
Phillips, who is an operations manager at Ozburn’s 5510 Holmes Road facility, testified
that he manages the Water Pik, Kodak, and Palm Ghost accounts; that he supervised and
managed an employee, Sharon Johnson, who had the nickname of Shaky; that Shaky has given
him sunflower seeds from her pallet jack; that he has seen one or two CDs or DVDs on Shaky’s
pallet jack; that he was sure that employees bring in CDs to play on some of the radios that are in
the Water Pik account; that he never saw Shaky selling any DVDs; that he managed Rivers and
he did not ever see her selling CDs or DVDs; that he never saw Rivers with CDs or DVDs at a
morning meeting; that he never had a conversation with Rivers about CDs or DVDs where he
told her to stop selling them and she told him to shut up; that he was not aware of employees
purchasing Avon products on the work floor; that he has never seen Avon bags on the work
floor; that he has never seen anyone selling chocolate bars in the Water Pik department or
anywhere on the work floor at Ozburn; that he did see employees wearing orange vote no T-
shirts during the union campaign; that he never saw anyone distributing the orange or white, with
thumbs up and down, T-shirts to employees on the work floor; that he did see employees
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wearing the white, with thumbs up and down, T-shirts; and that he has never seen any employee
sell anything on the work floor during work time.
On cross-examination Phillips testified that he has heard the employees in Water Pik
listen to music on the floor every day; that he did not see the Obama T-shirts being distributed
around the workplace but he did see employees wearing them; that he never saw Rayford, who
works in his department while he is at work (There is no second shift in Water Pik.), collecting
money, taking orders for, and distributing Obama T-shirts; that he is in Young’s office once a
week maybe but he was not aware that Young had the Obama T-shirts which she was facilitating
the distribution of through the facility; and that while Company policy prohibits cell phones for
leads and employees, there is no policy prohibiting radios and they are allowed in the facility.
Owens testified that she never purchased a candy bar from employee James Mitchell; that
she never saw James Mitchell or Trotter selling chocolate out on the floor; that on one occasion
James Mitchell brought a box of chocolate out on the floor and she told him that he could not
have it on the floor, he could not sell it, he needed to walk it back to the office, and it had to
remain there; that she was transferred to the Water Pik account on February 22, 2010; that
employees in the Water Pik account, like pretty much every department at OHL, have CD
players on the floor and they play music; that she has never supervised in the HP account; and
that she has never seen an employee selling DVDs or CDs on the work floor.
White testified that sometime during the summer of 2009 Phil Smith told her that he
heard that there was an employee selling food in the parking lot and in the break room at OHL;
that subsequently Young told her about someone who became sick as a result of food being sold
by the same employee, Kurtycz, on company property; that at management’s weekly staff
meeting those present were told that they needed to stop any kind of selling and warning letters
should be given out to make sure that the employees understand that this couldn’t happen; that
the position that management took was that the selling of everything had to cease; that it was not
limited to food because she did not want to discriminate; that managers communicated this to
supervisors as well; that subsequently Phil Smith told her that Kurtycz was selling food again on
OHL property, he had given Kurtycz a letter regarding no solicitation, and he told Kurtycz that it
needed to cease immediately; that subsequently she heard that Kurtycz was still selling food and
then one day she was holding a meeting near the break room in Building 5510 in which HP is
located, and when she went to get ice she saw a large cooler which held sandwiches, juices,
sodas, and a lot of things by the ice machine; that she asked the approximately 15 people in the
break room, which included Kurtycz, whose cooler it was; that the employees did not answer
her; that she went back to the conference room and got Young to accompany her back to the
break room; that when they got back to the beak room the cooler was gone; that Young sat down
and asked one of the employees where the cooler was; that the employee told her that it was in
the bathroom; that they found the cooler in an open shower stall; that Kurtycz followed her and
Young into the shower area; that she then asked Kurtycz if it was her cooler and Kurtycz shook
her head up and down; that she asked Kurtycz had she not been warned many, many times about
selling food on OHL property and Kurtycz shook her head up and down again; that she and
Young took the cooler and she told Kurtycz that there would be an investigation and she would
get back with her later; that she contacted Phil Smith and told him that he needed to talk to
Kurtycz about this, she felt like it should be a final written warning in view of the employee
getting sick, but she wanted HR to make the final determination; that OHL’s handbook policy on
solicitation does not cover food specifically; that as Vice President who is in charge of the
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campus, she is able to have a more restrictive policy than the OHL handbook policy; that in July
or August 2009 some Avon books were found in the HP break room and she told Liz Fitzgerald
that she could not sell Avon products or anything else on OHL property any more; and that she
never told Rayford or Herron that they could go pick up white T-shirts from Stewart in a
different building.
On cross-examination White testified that Young told her in the summer of 2009 that
Faulkner came to her office about an attendance point and told her that he wanted it removed
because he had gotten sick eating the food sold by Kurtycz; that she did not know if he still
works for OHL or if his sickness was independently verified; that the union campaign was
ongoing when managers and supervisors were told, at the next scheduled staff meeting after she
heard about Faulkner, that all selling of items on the premises had to stop; that an Executive
Management Group (her, Young, and Phil Smith) decision was made to stop the sale of anything
on OHL premises, including Girl Scout cookies, T-shirts, and Avon products; that she did not
hear and she was not aware that Young sold “Obama T-shirts” (Tr. 965); that she was not aware
and she was not told that DVDs were sold on the premises; that she goes into Young’s office
usually once or twice a day but she travels for OHL and there are times she is out of town for a
week; that Fitzgerald, who is no longer with OHL, worked in inventory control; that she spoke to
Fitzgerald about the same month that Kurtycz received her final warning; that Fitzgerald, who
was a salaried employee, was not in the salaried meeting where the no selling on OHL premises
was discussed since she comes to work in inventory at 3 a.m.; that she talked to Fitzgerald and
told her that it had to cease immediately and that was it; that employees were told at start up
meetings no selling on the property; that there were other non-solicitation letters given out to
employees for violations of the solicitation policy and they ceased when they got the letters; that
the non-solicitation letters is the employee’s first warning, it is just a counseling advising them;
that she was not aware of Anne Slater selling shortcakes or bringing in strawberry shortcakes to
the facility around March 2010; that she was not aware of Kilpatrick selling Avon from January
through April or May 2010, she knew Young spoke to Kilpatrick, but she was not sure of the
month; and that she saw the “Vote No” T-shirts but she did not see them being sold.
On redirect White testified that to her knowledge no OHL manager or supervisor sold T-
shirts to employees; that around the time of the Kurtycz cooler incident she had no idea that
Kurtycz supported the Union; and that when she made the announcement to her management and
supervisors about no more selling, it had nothing to do whether or not people could solicit for the
Union during break times or in non-working areas, and employees were allowed to do this.
On recross White testified that and there was no formal written notice posted on the
bulletin boards or in break rooms to inform employees of this new policy prohibiting the selling
of anything on the OHL property; and that management and supervisors were told to tell
employees at start up meetings that nothing could be sold on the OHL property.
Young testified that she heard about some employee getting sick after eating some of
Kurtycz’s food; that Phil Smith was handling that matter until the employee, Faulkner, came to
her because he had received some occurrence points for returning late from his lunch, and he told
her that he did not think it was fair that he got the points because he got sick from food he bought
from Kurtycz, was in the rest room for some time, and he was late coming back from lunch; that
she spoke with Phil Smith about the matter; that on September 29, 2009 she was in a meeting
with White, and a customer; that White left the room to go the break room to get some ice from
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the ice machine for drinks; that White returned to the conference room and told her that there
was a cooler in the break room full of food; that she asked if Kurtycz was in the break room and
White said that she was; that when they got to the break room the cooler was gone; that she and
White asked the employees in the break room where the cooler was; that she sat down at a picnic
table and asked Sharon Todd where the cooler was and Todd told her in the ladies rest room in
the shower; that she pulled back the curtain and there was the cooler; that Kurtycz was standing
behind them, White asked Kurtycz if it was her cooler, and Kurtycz nodded her head up and
down; that White asked Kurtycz why she did not tell them it was hers at the outset and had they
not talked to her several times about selling food on he OHL campus (Kurtycz said yes.): that she
and White took the cooler and then White contacted Phil Smith, who is responsible for all safety
matters; that it was decided that Kurtycz would receive a final warning and be told that if it
happened again she could face termination; that on Monday March 1, 2010 she was not in the
office, and she received a telephone call from Washington who told her that some employees
came to complain to her that Kurtycz was harassing them on the floor “trying to get them to, I
guess, go for the Union or sign some cards or something of that nature” (Tr. 997); that since she
was not on campus, she told Washington to get with Coleman, White, or Phil Smith; that she was
not involved in the investigation of the March 1, 2010 Kurtycz matter and she was not involved
in the decision to terminate Kurtycz; that before March 1, 2010 she did not have any idea
whether or not Kurtycz supported the Union; and that prior to Kurtycz’s termination she had
never seen Kurtycz selling food.
Young further testified that during the Presidential Campaign in 2008 on a casual Friday
she came to work wearing a T-shirt that had a picture of Obama and Dr. King on the front; that
she got the shirt from a friend who has a T-shirt shop; that Rayford asked her about the shirt; that
she called her friend regarding the shirts and the next day Rayford ordered two shirts; that
Rayford told her that some more people wanted the shirts and she told Rayford that she needed
to collect the money first; that she did not send Rayford out on the floor to sell these T-shirts;
that the T-shirts were never stacked up in her office; that she brought the T-shirts to work after
she received the money for them and she told the employees that they could get them from her
truck during breaks or after work; that in 2009 she was told that an employee named Doris, who
worked in Water Pik, was selling Avon products; that she spoke with Doris, who told her that
sometimes she sold Avon products when she was out there talking to people; that she told Doris
to stop and handle it off OHL property; that this was the end of Doris selling Avon products as
far as she knew; that she has never seen Avon books on Pugh’s desk; that she bought a purse
from Rayford at Rayford’s car in the parking lot when Rayford was not on the clock; that she did
not know anything about a person named Anne who was selling strawberry shortcakes around
the time of the election; that she did not see any of Rayford’s purses on her power jack; and that
she was not the decision maker regarding the termination of Kurtycz but she emailed some
documents to Andrew Tidwell, R. Exh 19.
On cross-examination Young testified that it was first brought to her attention that there
was some issue concerning Kurtycz selling items in midsummer 2009 when Phil Smith told her
that there were complaints about Kurtycz selling food; that Faulkner came to her because he was
upset because he received an occurrence point; that she could not recall the date of the Faulkner
conversation; that Phil Smith apparently had talked to Kurtycz about selling food before
Faulkner came to her regarding his occurrence point; that there were no other reports about that
time from other employees who ate Kurtycz’s food and suffered some problem; that her
conversation with Faulkner was prior to Kurtycz receiving a final warning; that apart from
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Kurtycz she is not aware of any other employee being disciplined for violating the solicitation
rule at OHL; that the Faulkner situation was discussed at a Tuesday meeting of the managers and
White was present; that the decision was made at the meeting to prohibit selling because of the
health concerns; that it was decided later, way after the Faulkner situation, to prohibit the selling
of Avon products but she could not recall when the ban was extended to Avon products; that Phil
Smith and Washing observed Kurtycz selling food out of her truck in 2009; that Phil Smith told
her that he had a meeting with Kurtycz when he learned she was selling food out of her truck;
that the initial limitation was just on the selling of food items, and then at a later point it was
determined that the best policy would be to just not allow anything to be sold; that the latter
restriction was carried out during the Union campaign; that there was no posting of a notice or
revision of the solicitation policy that appears in the handbook; that she was not involved in the
investigation of Kurtycz’s conduct in early March 2010; that Tidwell is her direct boss; that the
statements she emailed to Tidwell were given to her by Washington; that she was not consulted
nor did she make any recommendations as to what discipline should be imposed on Kurtycz in
March 2010; that OHL retains discretion and there are times when an employee who has
received a final warning is not terminated when an additional infraction occurs; that OHL
employee Kenneth Eason received disciplines, GC Exh. 33, for having a cell phone on the
warehouse floor during working hours, namely a written warning in January 2009, a final
warning in February 2009, a suspension in March 2009, and then an additional warning final
warning in June 2009; that in August 2009 OHL employees Carolyn Jones and James Bailey
might have been crossing the line on the solicitation policy when they engaged in union
solicitation, and they were given a letter reminding them of what the policy was; that prior to
midsummer 2009 Avon products, candy, and Easter baskets were sold in the OHL facility; that
she was not aware of DVDs being sold in OHL facilities; that school fundraising items have been
sold in the OHL facility; that Rayford originally ordered two Obama T-shirts when she was in
her office; that when Rayford told her that different people wanted one, she told Rayford that she
had to get the money and she would place an order for Rayford; that she had the T-shirts in her
truck and Rayford got them at the end of her shift; that there was only one order that she passed
on to her friend after Rayford originally ordered the two shirts; that subsequently Rayford came
to her and told her others wanted the T-shirt and the process was repeated; that she herself never
distributed any shirts; that she testified at the hearing held on March 3, 2010, GC Exh. 34, that
she handed out T-shirts from her truck in the parking lot after work directly to employees
because Rayford had left for the day; that she denies that she brought T-shirts up to her office;
that she did not know anything about Willie “Dodd” (Tr. 1053) carrying a box out of her office
and down to where Rayford’s lift was so that she could distribute them through the warehouse
(The supervisor’s name is Dye.); that the T-shirts were not in her office; and that she did not
know if Rayford was taking orders for the T-shirts on work time.
On redirect Young testified that supervisor Van Jones told her that Eason was not fired
but rather given a second written warning because his father was ill; that Eason was told that if
there was an emergency, a specified telephone number should be called and they would get him
to a phone; and that when she was talking with White about the selling of food, there was also
talk about if they were going to stop the selling of food, they needed to stop all the selling.
Andrew Tidwell, who is OHL’s vice president of Human Resources, testified that he
works in Brentwood, Tennessee and is in charge of Human Resources for the 5,000 employees
OHL has nationwide; that he does not usually get involved in day-to-day disciplinary decisions;
that in 2009 Young told him that an employee had become sick from the food he bought on OHL
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premises in Memphis; that this was a health and safety concern and local management expanded
OHL’s solicitation policy to include no selling of any kind; that it was no selling of any kind as
opposed to just no selling of food because “a broader bright line rule is much easier to administer
than a very specific one. We don’t want to argue with people about whether they’re selling food
or whether they’re selling candy or anything like that” (Tr. 1076); that at the time he heard about
the employee becoming sick, he did not know the identity of the employee who sold the food;
that he approved the termination of Kurtycz; that R. Exh. 19 is the final written warning for
Kurtycz and some more recent employee statements which he received by email from Young on
March 2, 201011; that he believed that everything in R. Exh. 19 was attached to the email that he
received; that when he received R. Exh. 19 he understood that this was a review for a termination
based on the last step of discipline that was administered, and he was being asked to sign off on
it and approve the termination of Kurtycz; and that he communicated his approval of Kurtycz’s
termination to Coleman.
On cross-examination Tidwell testified that OHL’s corporate headquarters in Brentwood
are just outside Nashville; that OHL employees voted not to be part of the Union, since then
unfair labor practice charges have been filed against OHL, and OHL has been very careful in
reviewing all disciplinary cases to avoid future incidents; that he does not normally get involved
in general discipline issues but he did review some termination decisions; that he guessed that
the solicitation policy was made more strict to ban all selling some time in 2009; that he was
asked to approve Kurtycz’s termination and he did not sign a document; that he understood that
when Young sent him a final warning with details about a following incident, termination was
being considered; that Young, in sending R. Exh. 19 to him, was implicitly recommending that
he approve Kurtycz’s termination; that it was his understanding that he was approving another
person’s recommendation, and he did this verbally when he spoke with Coleman and he told
Coleman that he approved; that he did not recall the exact time he spoke with Coleman but he
believed that it was after March 2, 2010; that he did not give his approval on the day of the
email, namely March 2, 2010; and that there was no authorization until he got back to Coleman.
On redirect Tidwell testified that the “9/29/09” final warning to Kurtycz would indicate
that the total ban on selling on the OHL campus was “around that time”; and that he does not
have a clear recollection of exactly which day he spoke with Coleman giving his approval, and it
is possible that he spoke with Coleman on the same day (presumably the same day he received
the e-mail from Young, namely March 2, 2010).

11 Young’s March 2, 2010, 1:08 p.m. email to Tidwell reads:
This is the information on Glorina Kurtycz. Prior to the final we had verbal
discussions with Glorina because an employee complained that the reason he got an
occurrence point was because he purchased some food that Glorina was selling out of her
truck on the parking lot and got sick. When we spoke with her she denied that she sold
anything out here on the campus. When she got the final it is because she had a cooler
that she was putting in the break room and allowing employees to purchase food.
This exhibit also contains Kurtycz “9/29/09” final warning, Washington’s “3/2/2010” statement,
Pope’s statement, Crawford’s “03/01/ 2010” statement, and Moore’s March 2, 2010 statement,
all of which are set forth above.
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Subsequently Tidwell testified that before she emailed R. Exh 19, Young telephoned him
and told him that he would be receiving some information to review but she did not say outright
that it was a proposed termination; that he noticed that there was no statement from Kurtycz in R.
Exh. 19 but “I rely on my local HR professional staff to conduct the investigation and make the
recommendation” (Tr. 1089); and that he does not interview and that it not his role in the
process.
Phil Smith, who is a senior operations manager or area manager with OHL in Memphis,
testified that among his duties is site and safety and security manager for the entire Memphis
campus; that he has responsibility for multiple accounts across multiple buildings; that in mid to
late August 2009 he was told by an employee (He could not remember which employee.) that
Kurtycz was selling food out of the back of her car in the parking lot on OHL’s Memphis
campus; that he drove over to the HP parking lot where he saw two individuals leaving the
vicinity of the rear end of Kurtycz’s vehicle both carrying what looked like sandwiches in clear
bags, and Kurtycz was just closing the back of her vehicle; that he did not say anything to
Kurtycz at this point in time because he did not see any transaction take place; that 7 to 10 days
later he received a phone call from someone in another building on OHL’s campus indicating
that Kurtycz was selling food on the OHL campus; that again he drove to the HP parking lot
where he saw Kurtycz handing an employee what appeared to be a sandwich item in a bag and
the employee was handing Kurtycz money; that he asked Kurtycz if she was selling food and
Kurtycz said “yes” (Tr. 1094); that he told Kurtycz that she could not do that on OHL property, it
was a health issue, it was hot, she did not have a refrigerator in the back of her car, she just could
not do that, they could not take the risk; that Kurtycz did not respond negatively; that he told
White about Kurtycz selling food out of the back of her car in the HP parking lot at OHL; that
subsequently Young told him that a OHL employee became sick after purchasing food from
Kurtycz; that Kurtycz was given a letter that basically was an excerpt from the employees’ non-
solicitation policy, and he read the letter to Kurtycz when he gave it to her; that he was not sure
if Kurtycz was given the letter the day before the incident involving the employee getting sick or
the day after; that the letter was the same letter that he had been handing out to people who had
been soliciting during the summer of 2009; that he handed Kurtycz an original of the letter and
he had a copy; that Kurtycz took her copy with her and he threw his away; that this was not a
disciplinary measure and it was an informational meeting; that the meeting with Kurtycz where
he gave her the letter occurred in Washington’s office in the HP, with Joe Walker present; that
Washington was not in her office at the time; that Kurtycz did offer some reason for why she was
selling food and he told her that he did not care why she was selling food and the prohibition
only involved OHL property; that after the employee got sick, management revisited the policy
and they decided to say that no one could sell food items, and they reevaluated that and decided
that they could not just isolate food items and there would be no selling of any kind of
merchandise; that he told the management staff at the next weekly Tuesday meeting, with White
there, after the employee got sick, and those managers were told to tell their respective employee
groups about the prohibition; that the policy was changed during the following weeks and Young
covered the fact that an employee had gotten sick; that the new policy was communicated to the
employees during pre-work meetings; that he attended some of these pre-work meetings; that in
the meetings he attended and his supervisors reported back that the employees were told that due
to an employee getting sick from eating food, they were stopping the sale of all merchandise
across the campus, and there would be absolutely no selling allowed of anything; that he
estimated that the announcement took place in late September or early October 2009; that White
told him about Kurtycz having a cooler of food in the break room and she asked him to speak
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with Kurtycz about it; that they decided to give Kurtycz a final warning, see the third page of R.
Exh. 19; that the first time referred to in Kurtycz’s final warning is when he spoke with her by
her car in the HP parking lot, the second time is when he gave Kurtycz the letter regarding
solicitation in Washington’s office with Walker present, and the final warning was the third time;
that his third meeting with Kurtycz was also held in Washington’s office, with Walker present
and Washington was not there; that at the third meeting he gave a copy of the final warning and
he read his copy verbatim to her to the end of the “ACTION TAKEN” portion; that Kurtycz
signed the final warning; that he was not involved at all in the decision to terminate Kurtycz, and
he was not involved at all in investigating the final incident that led up to her termination; that on
March 1, 2010 he did see Kurtycz with Jerry Smith; that Jerry Smith said “lets vote” and he then
said “lets vote”; that he did not tell anyone that he had seen Kurtycz hand billing on the
afternoon of March 1, 2010; and that he has never seen an OHL employee named Annie selling
strawberry shortcake at the OHL Memphis facility, and he did not give her permission to do this.
On cross-examination, Phil Smith testified that when he was told that Kurtycz was selling
food out of the back of her vehicle in the HP parking lot in mid to late August 2009 employees,
under OHL’s solicitation policy in effect at that time, could sell items in nonwork areas during
nonwork times, but there was a health concern about food prepared at home being sold out of the
back of a car in August; that he did not keep his copy of the letter he gave to Kurtycz because it
was an informational letter, it was non-disciplinary so he had no reason to keep it; that his
meeting with Kurtycz, with Walker present, when he gave Kurtycz the letter was in late August
or early September 2009, within 10 days of when he told Kurtycz that she could not sell food out
of the back of her car; that he had given out at least two similar letters to employees Carolyn
Jones and Bailey; that he did not keep copies of the letters to Jones, GC Exh. 35 dated August
11, 2009, or Bailey, GC Exh. 35 dated August 25, 2009, either12; that he gave Kurtycz her letter
prior to OHL changing its policy restricting the selling of food items; and that he did not prepare
the letters that were given to Jones and Bailey but rather they were given to him to give to Jones
and Bailey.
On redirect Phil Smith testified that prior to seeing Kurtycz hand billing on March 1,
2010 he had no idea of whether she supported the Union.
GC Exh. 36 is an email, dated March 02, 2010 with a time of 2:56 p.m., from White to
Young which reads as follows: “Vania & Jim are calling Glorina in to take care of this but I need
a separation notice. Can you step out and get me one by 3:30PM?”
GC Exh. 37 is a position statement of OHL dated “March 22, 2009.” The letter opens
with “In response to your e-mail of March 9, 2010 ….” Obviously the date on the letter should

12 Both letters have the same language in the opening paragraph, namely:
It was brought to our attention by more than one employee in your work location that
you were distributing a flyer in working areas of our facility during working time. It is a
violation of company policy to distribute materials and literature during work time in
work areas.
The letter then quotes the solicitation/distribution policy from the OHL Employee Handbook and
ends with “This is a reminder of OHL policy and not a disciplinary notice.”
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be March 22, 2010. As here pertinent, the statement summarizes the reasons for the termination
of Kurtycz.
C. Overtime
Carlos Shipp, who worked for Ozburn for about 1 year at the time he testified at the trial
herein (July 2010), testified that he works first shift from 7 a.m. to 3:45 p.m.; that he worked in
the Remington department the whole time he has worked for Ozburn; that during the last 2
weeks of the month he starts work at 5 a.m.; that employees from other Ozburn departments
come to work in the Remington department during busy periods the last two weeks of the month;
that he has seen Rayford working in the Remington department during the busy periods during
the last two weeks of the month when there is overtime; that Rayford worked in Remington from
5 a.m. to 7 a.m. or 8 a.m. (overtime) and then she went to work at her regular account; that she
started working overtime in Remington in August 2009 and he did not see her working in
Remington after November 2009; that when the Remington account was slow he has worked in
other accounts, namely HP, Water Pik, Brown Halco, and Kodak; that when he comes to work
and goes directly to an account other than Remington, he punches in at the time clock of the
other account, using the code of that account which is posted by that time clock; and that initially
when he did not know to use the code of the other account when he clocked in at the other
account, his supervisor in Remington, Steve Shelton, added the code to his timesheet, and told
him the correct procedure. On cross-examination Shipp testified that, to his knowledge, Shelton
never adjusted his time records for any other reason.
Rayford testified that during the latter part of 2009 she worked in Ozburn’s Remington
department, which is in a different building than Water Pik; that she knew Remington had
overtime from a friend, Cynthia Craig, who worked there; that in May 2009 she telephoned Roy
Ewing, who is the manager of that department, and asked him if there was overtime available for
her in Remington; that Ewing answered in the affirmative; that she and Ewing reached an
understanding, namely that she would start the overtime at Remington at 5 a.m. or 6 a.m. and
then she would start at her regular department, Water Pik, at 8 a.m.; that she started working
overtime in the Remington department in July 2009, doing a couple of days in July and August
2009 (a day or two in July and the same in August); that she did 7 days of overtime in
Remington in September 20009; that she worked a week of overtime in Remington in October
2009 and that might have included weekend work as well; that Remington got busy and had
overtime work available the last 2 weeks of the month; that after Ewing approved her to work
overtime at Remington, she dealt mostly with the floor supervisor in Remington, described only
as Greg, with respect to when she would be working overtime there; that her September 2009
overtime at Remington included two weekend days; that when she worked overtime in
Remington on a Monday through Friday she would work from 5 a.m. or 6 a.m. to 7:45 a.m.; that
she worked overtime in all of the other departments that Ozburn has; that if she was required to
work overtime in her department, Water Pik, during the last week of the month, she would tell
Ewing in Remington or Pope in HP that she could not work overtime in their departments during
that period; that Water Pik normally worked overtime the last week of the month, and Remington
normally worked overtime the last two weeks of the month; that when she works at departments
other than Water Pik, she punches the time clock in that department (except when she works in
HP, which is in the same building as Water Pik) and punches in the code number for that
department; that sometimes when she did not know the code number for the other department
she would not enter it when she punched in at that department but she would tell her supervisor
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in Water Pik; that on mornings when she worked overtime at Remington she did not clock out at
Remington but she did clock in when she started working at Water Pik; that if there was a
problem with her time working in Remington, her supervisor, Dye, would call her into the office
for an explanation and then he would fix the weekly time sheet; that on November 17, 2009,
after she clocked in at Remington, she spoke with Stephanie Adams, who is an Ozburn employee
who works at Remington; that Adams told her that Young looked stressed, and she told Adams
that she had to give Young a hug because she had been crying; that Adams said she was not for
the Union, and she told Adams “That’s you” (Tr. 311); that later that same day she was leaving
from Water Pik to go to a doctor’s appointment and as she was going to Ozburn’s parking lot she
saw Young who asked her “why was I putting her business down at Remington” (Tr. 313); that
she asked Young what she was talking about and Young said “Why are you spreading my
business at Remington” (Ibid.); that she told Young “Remington? I ain’t spreading your
business. Oh, somebody could have told you - - only somebody could have told you that was
Stephanie. I’m going to call Stephanie and see why she lied on me’ (Ibid.); that Young told her
to “Just leave it alone” (Ibid.); that later that day she had a voicemail on her phone from Ewing
who indicated that he wanted her to call him; that she telephoned Ewing who told her that he did
not want her to come in to Remington in the morning to work overtime; that when she asked
Ewing why, he told her “he didn’t want this Union shit down in here” (Id. at 314); that when she
then asked Ewing what he meant he told her “They trying to get a Union going on” (Ibid.); that
she asked Ewing “Why would you come to me like this,” (Ibid.) and then he asked her “Are you
for the Union” (Ibid.); that she told Ewing she was not for the Union; that Ewing told her
“Glenora, this is something that I know …. [r]espect my decision” (Ibid.); that Ewing told her
that she was down there talking to employees, and she told him that the only employee she talked
to down there was Adams and she was lying; that she asked Ewing if he was going to cut her
overtime based on what Adams said; that when she told Ewing that she was going to call Adams
and ask her why she lied, Ewing told her not to call Adams because “Me and Stephanie have a
bond. She trusts in me” (Id. at 315); that Ewing also told her that if the conversation got back out
in the warehouse, there would be repercussions and she would not like the outcome, he did not
want her at Remington, and if he needed her to work overtime, he would call her; GC Exh. 13 is
a cell phone bill which, as here pertinent, shows a 27 minute telephone call to Ewing on
November 17, 2009 at 4:41 p.m.; that after November 17, 2009 she did not work in the
Remington department; that subsequently she did not request to work overtime in Remington
because Ewing told her he would call her if he needed her to work overtime in Remington; that
she has continued to work overtime in her own department, Water Pik; that she did not recall
working in other departments since mid-November 2009; and that in March 2010 she asked
White if she could work in Ozburn’s Uzaki department, White told her that she would get back
with her, but she never did hear from White.
On cross-examination Rayford testified that has known Ewing since 2000, the year she
started at Ozburn; that when she works overtime at the Remington account it is voluntary
overtime; that an employee at Remington, her friend Craig, told her about the available overtime
in that account; that Remington employee Adams is not her friend but she is her ex niece-in-law;
that she had Ewing’s telephone number programmed in her telephone because previously he was
her supervisor when she worked in HP; that at the end of the month she worked in Remington
from July to November 2009; that she telephoned Ewing, who approved her to work overtime in
Remington; that subsequently she dealt with the supervisor in Remington, Greg; that on
November 17, 2009 she had a conversation with Adams in Remington at 5 a.m.; that on
November 17, 2009 while she worked in Remington she did not have any issues with a printer
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not working, she did not have any issues with the microwave not working in a break room in that
she was picking and when she left there it was time for her to go to her job in Water Pik, and she
did not have any trouble finding lift equipment in that she used a manual pallet jack; that she did
not have any recordings of any conversations she had with Ozburn managers in November 2009;
that in her opinion, Adams told Ewing something which caused him to no longer allow her,
Rayford, to work overtime at Remington; that Ewing told her not to call Adams, and if she did,
she would not like the repercussion; that Ewing said that he had a bond with Adams; that she did
not tell anyone at Ozburn about Ewing keeping her from working overtime because Ewing told
her that if she did, she would not like the outcome, and she did not want to lose her job; that
Ewing told her that it better not get back out in the warehouse so she was scared to tell anyone at
Ozburn about it; that she has not been made aware of any overtime opportunities in any account
at Ozburn since November 17, 2009; that she asked White about working overtime in the Uzaki
account, White told her that she was going to get with the supervisor there, Kelvin, and White
would get back with her; that White never did get back with her regarding overtime at the Uzaki
account; and that she has not called Ewing to request overtime since November 17, 2009.
Evangelia Young, who is Ozburn’s Regional HR Manager, testified that she is the
custodian of records; that, with respect to GC Exh. 20 - which is a subpoena duces tecum served
on Ozburn by the Board, she gathered all of the documents; that with respect to Item 20 of the
subpoena, namely overtime assignments in Remington from November 15, 2009 to the present,
the time information was pulled from Ozburn’s time recording system, “Unitime,” (Tr. 527); that
the only times this record is changed is if an employee misses a punch or does not properly
record a transfer from one account to another account, and a manager or supervisor for the
account to which the employee is assigned modifies the time at that point to make the correction;
that if an employee reports to his or her regularly assigned account all he or she has to do to
clock in is to swipe his or her badge; that if a Water Pik employee works overtime in Remington,
to transfer those overtime hours, the employee, a manager or a supervisor has to punch in the
code of the Remington account; that a comparison of GC Exh. 21, which is a June 8, 2010
position statement submitted to the Board by one of Ozburn’s attorneys, with GC Exhs. 22 and
24, both of which were provided pursuant to a subpoena duces tecum of General Counsel, shows
that the position statement contains transfer work in the Remington account which is not
specifically designated as transfer work in the Remington account on GC Exhs. 22 and 24 (The
hours worked are included in GC Exhs. 22 and 24 but there is no transfer code specified for these
entries, and while Young was able to identify the author of the handwritten entries, Dani Bowers,
on GC Exh. 21, she could only speculate that Bowers made the handwritten entries based on
information provided to her by the manager of the Remington account, Ewing.); and that she was
not sure of the basis of Bower’ handwritten entry, “wrong transfer looks like,” involving the
Remington department which appears on GC Exh. 25.
GC Exh. 14 is the “Timecard Report” for Rayford from “8/11/2009” to “7/2/2010.” It
shows that Rayford worked in Remington during this period on the following dates: 10/19, 20,
21, and 26/2009, and 11/17/2009.
In addition to GC Exhs. 21, 22, and 24, which collectively refer to transfer work in the
Remington account by Alvin Fitzgerald, Wanda Staples, and Alfred Stewart, General Counsel
introduced GC Exhs. 26 and 27, which, respectively, refer to transfer work done in the
Remington account by Mark Williams and Daniel Cunningham.
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OHL Operations Supervisor Owens, who was transferred to Water Pik on February 22,
2010, testified that she has supervised Rayford; that twice she offered Rayford voluntary
overtime; that the first time was in a group setting and it was offered to everyone present; that the
second time she went around with a pad and pencil and asked everyone individually if they were
interested in doing volunteer overtime in a new account; that Rayford did not volunteer either
time; that a couple of times Rayford did volunteer for overtime when she offered it to her; and
that when Rayford turned down overtime she said that she had other obligations.
Ewing, who as noted above is OHL’s Operations Manager of the Remington Arms
account, testified that he has known Rayford for over 10 years; that in 2007 he directly
supervised Rayford for about 1.5 years in OHL’s Hewlett-Packard account; that in October 2009
Rayford began working overtime in the Remington department, after she saw him in passing and
asked him if she could come over and do voluntary overtime work during Remington’s peak
times, the last two weeks of the month; that subsequently she called him from four to six times
asking him to work in the Remington account; that in November 2009 Rayford worked overtime
in Remington, starting at 5 a.m. and working there until about 7:45 a.m. when she would go to
her assigned account; that on November 17, 2009 before she left the Remington account for the
day she asked him to give her a call after she got off from her assigned account at 4:30 p.m. since
she had “some concerns about my working over here today that I want to talk to you about” (Tr.
927); that he called Rayford about 4:30 p.m. on November 17, 2009, and when Rayford returned
his call they spoke for about 30 minutes as follows:
…. When she - - when I called her, I said hey, you asked me to give you a call.
What’s going on? She said well, I just want to bring some things to your attention. She
said when I was working over in the firearm’s cage, because she is assigned to work in
the firearm’s cage area, … the people, the employees that I normally work with, she said,
Stephanie Adams, James Kerry and Cynthia Craig seemed to be a little distant with her.
They wasn’t [sic] very engaging.
They wasn’t [sic] assisting her very much when she needed some assistance on
some things. And so I asked her immediately, … where was her supervisor and she said
well, he was in the building. And I said did you go out and seek any type of support from
him? And she said I couldn’t find him.
So I said well, do you mind explaining to me in detail the concerns that you have?
And she said well let’s start with my RF equipment, which is a hand-held piece of
equipment that all the employees use to work with. She said I didn’t have an RF gun. No
one wanted to assist me with the RF gun.
She went on to state that she had a problem finding a piece of equipment to work
with as far as the forklift equipment. She had issues with the Zebra printer machine. And
when she reached out for these three individuals to help her, all of them seemed to be
pretty reluctant. And so I was asking her what do you mean by reluctant?
And she went on to state well, in the past … they would make themselves
available to her. And so I asked her … to walk me though the process and so she did.
And then when she mentioned the issue she was having with the equipment, she also
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mentioned that when she went on break, that she had a problem getting to a microwave,
that the microwaves were being occupied.
And so when she was asking individuals to help her … could she get to the
microwave? Everyone seemed to be somewhat standoffish with her. So throughout the
conversation I was just trying to assure her that … everything was okay and that … she
was more than welcome to come back, because she had mentioned that. She said well,
Roy, I don’t know if I’m going to come back tomorrow. And I said well, why …. are you
not going to come back? She says I don’t think I’m going to come back because I didn’t
feel welcome this particular time.
And I said well, okay. Well, let me know. And she says well, if you don’t see me
that next day, then that was an indication that I decided to stay away and I said okay. And
I asked her was there anything else and she said well - - I said well, can you be more
specific in individuals?
I said - - I asked her about James Kerry. I said, you know, did you have a
conversation with James? She said well, he wasn’t readily available. And I said what
about Cynthia? She said we talked in passing. I said what about Stephanie? And she said
well, Stephanie I kind of talked about some things in general.
And so I asked her about that conversation and she said her and Stephanie were
just having some disagreements about what was going on within the work place. And
then I assured her that hey, if there was any problems [sic] there that needed to be
addressed, just let me know and that I would have a conversation with Stephanie. And
she said okay.
…..
[Rayford] … indicated that she wanted to reach out and talk with … [Stephanie]
and I asked her if she wouldn’t. And she said well, why you don’t [sic] want me to reach
out to her? I said because I don’t want that confusion in my building. And what I meant
… [was] the Remington Building …. I said I don’t want any confrontation, because you
are a visitor and I have employees that are here every day.
And if you come down and become disruptive, then I have to hear that from the
employees. So I would prefer you wouldn’t address Stephanie. Let me address Stephanie
and then let me get back from talking to her what I come up with. And she said that was
fine, Roy. [Tr. 928 – 931]
Ewing further testified that during this conversation he did not ask Rayford whether she was for
the Union, and the Union did not come up; that he did not tell Rayford not to tell anyone about
the conversation and if she did there would be repercussions; that the following day he saw
Rayford in her assigned account when he was on his way to HR for a meeting; and that they had
the following conversation:
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And I said I noticed that you wasn’t at the account this mooring and she said yes, I
decided that I would just stay over here in my building and that I would … not come back
down to your account.
And then I went on to say hey, you are more than welcome. If something has
happened and you want to talk more in detail, please, feel free. But you are more than
welcome to come down and work overtime any time. And she said, okay, Roy. I’ll keep
that in mind. And so she just walked away. [Tr. 932 -933]
And Ewing further testified that since November 18, 2009 she has never called him to request to
work overtime in Remington; that prior to November 17, 2009 all of Rayford’s overtime in
Remington had been initiated by her calling him; that Rayford could work overtime in
Remington if she wanted to; and that during the conversation with Rayford on November 17,
2009 he did not tell her that he did not want “the union shit here” (Tr. 933) or that he did not
want “that shit” here. (Ibid.)
On cross-examination Ewing testified that the RF device Rayford referred to was a scan
gun; that Rayford had a problem with the scan gun she was using; that Rayford told him that an
electric power jack was not available; that Rayford took a break in Remington around 6:45 or 7
a.m.; that OHL’s policy is that if an employee works 2 hours or greater, they are due a break; that
in the fall of 2009 he had concerns about having union supporters influence the employees that
were regularly assigned to the Remington account; that he did not recall sending , “I didn’t send
one” (Tr. 937), an email to Van Young on September 29, 2009 in which he “indicated that he did
not want Carolyn Jones or other union proponents to have access to … [his] employees” (Tr.
936); and that GC Exh. 32 is an email he sent to Young dated September 29, 2009 which reads
as follows:
On Friday, September 25, 2009
I received a radio call from the security officer (Isaiah Shipp). After entering through the
metal detector from the warehouse I witnessed OHL employee Carolyn Jones speaking to
Officer Shipp in a very rude and unprofessional manner near the employee’s main
entrance. I asked Carolyn Jones to see her in private (both of us were standing in the
parking lot near the main entrance). This was an attempt to see if there was a concern
regarding Officer Shipp’s behavior or his actions.
Carolyn Jones stated during our conversation that she wanted to enter our facility to meet
with Remington’s hourly employees. I informed Carolyn Jones that her behavior was
unacceptable and that she couldn’t enter the facility based on many variables. My list of
concerns as followed: 1 thru 5
1. We handle Firearms and Ammo within this facility (SENSITIVE PRODUCT)
2. Security concerns (because of her lack in knowledge regarding our security
and safety processes and procedures[)].
3. Carolyn Jones is not an assigned OHL employee to this campus.
4. Solicitation during working hours are [sic] prohibited
5. Safety concerns/Carolyn’s well being overall
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As the assigned Operations Manager to the Remington account my greatest concern
during Carolyn’s visit was her lack of professionalism and aggressiveness with me
Officer Shipp and other OHL employees. Upon my arrival from the parking lot I was
approached by several employees asking why Carolyn Jones was granted access to the
facility when there’s NO DESIRE for a union or union participation within the
Remington Account. As the Operations Manager I went on to assure each concerned
employee that all participants regarding this union matter would be treated fairly
according to the law and OHL Employee Handbook.
Enclosing, Carolyn Jones did issue union literature to multiple Remington employees on
the above date Friday September 25, 2009.
Thanks for your time and patience regarding this matter.
White testified that Rayford asked her about working overtime in the Azoki account,
which started up around March 2010; that she told Rayford that the only people who could work
on the account were the people who were signed and validated on the customer’s manual system;
and that since Azoki has started up, employees from other accounts have not gone to Azorki to
work overtime.
D. Jennifer Smith
Jennifer Smith, who has worked for Ozburn as a permanent full-time employee since
June 2008, testified that prior to 2008 she worked at Ozburn as a temporary employee; that from
2009 to the time she testified at the trial herein on July 15, 2010 she worked in Ozburn’s Brown
Halco department; that for the first several months of 2010 her immediate supervisor was
Owens; that manager Phil Smith was above Owens; that on February 17, 2010 she appeared as a
witness in a Board hearing in which Ozburn was the Respondent, and in which she testified
about Phil Smith destroying Union literature in a break room at Ozburn; that on March 2, 2010
she was called into an office with Phil Smith and Owens, and Phil Smith told her that she had 13
attendance points; that she asked Phil Smith how she had 13 points; that Phil Smith explained,
going through the dates; that GC Exh. 7 is a “PROGRESSIVE DISCIPLINARY ACTION” form
which is dated “3-2-10,” which indicates that she received a “Final [The form also has a line for
“First Written Warning.”] Written Warning (any additional unexcused absences or lates may
well result in termination of employment.),” and which indicates “13 combined points
Suspension Date 3/3/10”; and that GC Exh. 6 is a blue “Post-it” (Tr. 437) sheet on which the
dates of her points were written when she met with Phil Smith and Owens on March 2, 2010.
The document reads as follows:
Jennifer Smith
3-3-09 2 pts.
3-4-09 2pts.
8-14-09 Leave early 3pts.
Car stolen
10-23-09 Tardy 1pt.
12-2-09 Tardy 1pt.
12-4-09 Tardy 1pt.
1-7-10 Tardy 1pt.
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XXXXXXXXXXXXXXX
2-27-10 2pt 13pts.
As noted, whatever appeared on the next to the last line of the document is crossed out.
Also, next to “3-3-09” the word “Call” is written and then crossed out. Jennifer Smith further
testified that the handwriting on GC Exh. 6 is Owens’; that with respect to the “3-3-09” entry, (a)
she asked Owens in the morning if she could leave work and Owens pointed out to her that it
was busy at the time, and (b) at about 3:45 p.m. when “the work kind of slacked up” (Tr. 413),
Owens told her that she could leave, and she left; that her “Timecard Report” for March 3, 2009,
GC Exh. 8, shows that she clocked in at 8:56 a.m. and she left work at 4 p.m. (designated as
1600 military time on the document); that in March 2009 her hours were 9 a.m. to 5:45 p.m.; that
she told Phil Smith and Owens at the March 2, 2010 meeting that she should not received points
for March 3, 2009 because she was at work; that an employee does not receive points for leaving
early if their supervisor tells them they can go home for the remainder of the day if the work is
slow; that when she left on March 3, 2009 she had permission from Owens; that March 4, 2009
was a “court date” (Id. at 417) and she did not come to work that day; that she does not
remember if she discussed this date with Phil Smith and Owens at the March 2, 2010 meeting but
she believes that she should not have received points for that absence because that would have
been an excused absence in that she had documentation for that day which she submitted to
Ozburn in advance of the court date; that she was not sure exactly what this court date was for in
that she had different court matters pending at that time [She did not know “if it was Juvenile
Court or …. like a traffic ticket or something.” (Id. at 419)]; that on one other occasion when she
missed work due to a court date, when she gave the documentation to HR the point for April 1,
2009 was taken off; that on March 4, 2009 she took paid time off; that points stay on the absence
record for 1 year; that at the March 2, 2010 meeting she mentioned that the March 2009 points
were about to come off her absence record and Phil Smith said “Well, they not off yet ….” (Id. at
421); that with respect to the “8-14-09” entry she told Phil Smith and Owens at the March 2,
2010 meeting that she did not leave early that day and she should not receive points for that day;
that when she got up to go to work on August 14, 2009 her car was not there, she telephoned Phil
Smith and Owens and when they did not answer she left a message, explaining to Owens that she
was coming to work that day, she had to get a ride, and she would arrive at work before 11 a.m.;
that GC Exh. 9, which is her “Timecard Report” for August 14, 2009 shows that she clocked in
at 10:55 a.m. and she left work at 5:45 p.m.; that on the afternoon of August 14, 2009 she asked
Owens if she was going to get points for that day and Owens told her that she would not; that a
couple of days later Owens asked for documentation for the August 14, 2009 absence so that it
could be treated as an excused absence; that she never did provide the documentation to Owens
for the time she was absent on August 14, 2009; that she did not contest the fact that she was late
getting to work on October 23 and December 2 and 4, 2009; that at the March 2, 2010 meeting
she told Phil Smith and Owens that the weather was bad on January 7, 2010 but she came to
work and she was tardy but she should not receive a point; that when she approached the time
clock to clock in on January 7, 2009 she saw Phil Smith, she asked him if she was going to get
points, and he told her “No” (Id. at 429); that GC Exh. 10 is the “Timecard Report” for January
7, 2010, it shows that she clocked in at 9:11 a.m. and clocked out at 5:46 p.m.; that Ozburn has a
bad weather attendance policy but she does not clearly understand it; that there was a lot of snow
and ice on January 7, 2010, 12 or 13 people work in her department, and she thought that maybe
one half were there when she clocked in at 9:11 a.m.; that the next-to-last line on GC Exh. 6 was
already “scratched out prior to … [her] seeing it” (Id. at 432) on March 2, 2010; that at the
March 2, 2010 meeting she told Phil Smith and Owens that the “2-27-10” 2 point entry was
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voluntary overtime and how could they give points for that; that Phil Smith said “Well, we’re
going by the books. And we have to give points for that” (Id. at 433); that she told Phil Smith
and Owens that she never received points for a voluntary overtime day; that regarding the
February 27, 2010 Saturday voluntary overtime in another account, when a supervisor who she
identified only as Terri came around on Friday February 26, 2010 and asked her if she wanted to
work overtime in another account she told the supervisor that she wanted to work overtime but
she had some stuff going on, she was having a meeting at her house that morning and she was
not sure she was going to be able to make it; that supervisor Terri told her “Well, if you don’t - -
if you don’t come in, it’ll be fine. You don’t have to worry about it if you can’t make it” (Id. at
435); that in the past she has missed voluntary overtime days and to the best of her knowledge
she did not get points on those two or three occasions; that she could not recall the specific dates
of those two or three occasions; that Terri had a pad but she could not recall if Terri wrote her
name on the pad; that she did not write her own name on the pad; that she was told at the March
2, 2010 meeting that she was being suspended on March 3, 2010; that she was asked to sign GC
Exh. 7 and she refused because she did not believe that the points were correct; that at the March
2, 2010 meeting she discussed whether she had 12 or 13 points and at one point Phil Smith said
that she had 12 points and he said “Well, you’re still getting suspended” (Id. at 438); and that GC
Exh. 28 is a “PROGRESSIVE DISCIPLINARY ACTION” form dated “4-17-09,” which (a) is a
“First Written Warning,” (b) shows that she received “2 pts.” on “4-1-09,” and (c) shows that the
two points were taken off with the notation “ok per Phil.”
On cross-examination Jennifer Smith testified that R. Exh. 7 is an “ATTENDANCE &
PUNCTUALITY POLICY ACKNOWLEDGEMENT” receipt which she signed, and which
indicates the she received a copy of the policy, R. Exh. 6, and has familiarized herself with its
contents (It also indicates that she agreed to abide by the guidelines outlined within the
policy.)13; that March 2, 2010 was not the first time she had been warned about her attendance;
that she did not know how many times she had been previously warned about her attendance;
that she was not sure that the attendance warning she received in April 2009, GC Exh. 28, was
before there was any union activity at Ozburn; that her supervisor, Owens, knew that she was a
Union supporter because they had a conversation about it but she could not remember the date of
the conversation; that she believes that she received attendance points for March 3 and 4, 2009
because of her union sympathies or activities in that the points for those two days are not
legitimate, she did not sign the April 2009 “write up” (Tr. 476) because they were supposed to
go back and correct it and they never did; that when she was given the April 2009 write-up she
did not at that time claim that she was given those points because of union activity; that she did
not have any reason to disagree with alleged prior testimony that the union activity at Ozburn
started with a meeting in May 2009; that she, in addition to her conversation with Owens about
her support for the Union, had previously worn union buttons and paraphernalia and she hand
billed; that the conversation she had with Owens about supporting the Union occurred in October
2009, and that during this conversation Owens spoke with her in reference to the union support
and what did she feel about it and what did she think about it; that on March 3, 2009 her shift

13 Among other things, under “Purpose” the policy indicates “Please keep in mind this policy
also applies to overtime (mandatory and voluntary) ….” and under “Definitions” the following
appears: “A workday is viewed as any day for which an employee is regularly scheduled to
work, a scheduled overtime workday, or a day for which he employee is typically off but has
volunteered to work.”
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time was 9 a.m. to 5:45 p.m.; that she did not find out that she was given points for March 3,
2009 until she received the write-up on April 17, 2009 and then she spoke with Owens, Phil
Smith, and Young; that she did not know if she spoke with Young about her March 3, 2009
points; that she took the day off on March 4, 2009 to go to court; that paid time off has to be
approved and she has submitted documentation to her supervisor to show that she had a
legitimate reason to take the day off; that subsequently Phil Smith told her that she did not need
documentation if she was taking paid time off; that she had to get paid time off approved in
advance; that Owens asked her for documentation of her car being stolen 3 or 4 days later but she
never provided it; that with respect to February 27, 2010, Terri came back to her later and told
her that the voluntary overtime was in a new account, Uzaki; that she did not recall telling Terri
Chessier to come back to her; that she would not expect to receive attendance points if she had
volunteered and committed to work overtime at an account on Saturday February 27, 2010 and
did not show up; that Ozburn’s attendance policy, the first page of R. Exh. 6, the third paragraph
under “Purpose,” indicates that the attendance policy also applies to voluntary overtime; that in
her affidavit to the Board on March 27, 2010 she did not make any reference to raising the
March 2009 points with Phil Smith and Owens at the March 2, 2010 final warning meeting; that
R. Exh. 8 shows that she punched out at 4 p.m. on March 3, 2009, had no punches for March 4,
2009, punched in at (a) 10:55 a.m. on August 14, 2009, (b) 9:01 a.m. on October 23, 2009, (c)
9:02 on December 2, 2009, (d) 9:01 on December 4, 2009, and (e) 9:11 on January 7, 2010, and
was absent on February 8 and 27, 2010; that she did not call anyone to say she wouldn’t be
present on February 27, 2010; that under Ozburn’s attendance policy a no call no show calls for
one point14; that she volunteered for overtime with the lead, described only as Shanelle, at the
Eastman account , did not show up, did not let anyone know, never received points, but she
could not recall when this occurred; and that several times she was supposed to come for
overtime at the HP account, she did not show up, and she did not receive any points.
On redirect Jennifer Smith testified that she left messages with Phil Smith and Owens on
August 14, 2009 about 1 hour before start time and told them that her car was stolen and she
would be late coming to work; that the three points she was charged for August 14, 2009 are not
the correct number of points that should be charged for being tardy; that on other specified days
she was only charged one point for being tardy; that she is not notified when she receives an
absence point or points; and that the only way she finds out is when she asks or she receives a
discipline.
Young testified that Ozburn distributed a new handbook in either August or September
2009, GC Exh. 30, which was still in effect at the time she testified at the trial herein on July 15-
16, 2010.

14 Page 2 of R. Exh. 6, OHL’s attendance and punctuality policy, specifies the following:
Points will be assigned for unexcused absences, being late, leaving early and no
call/no shows as outlined below …
No call/no show: 4 points
Unexcused late call or leave early: 3 points
Unexcused absence: 2 points
Unexcused late: 1 point
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GC Exh. 11 is a newspaper article dated January 7, 2009 which refers to snow and
slippery roads that morning, and which indicates that the Tennessee Department of
Transportation had not closed any roads.
GC Exh. 12 is a March 22, 2010 position statement submitted to the Board by one of
Ozburn’s attorneys. As here pertinent, one of the attachments, an entry on page two of the “2010
Attendance Controller” for Leonard Humphrey indicates “1/7/10 TARDY-EXCUSED-SNOW
DAY.” The copy of one page of the Unitime record for Humphrey included with the position
statement shows that on three of the five full days listed in late January and early February 2010
Humphrey clocked in at 4:54 a.m., and on the other two he clocked in minutes before 7 a.m. This
exhibit also contains a “SEVERE WEATHER POLICY ACKNOWLEDGMENT” which
employee Christopher Barnes signed for on “5-21-09.” It reads as follows:
Severe weather is almost certain during particular times of the year. While it is
sometimes difficult to get to work, our customers expect us to provide uninterrupted
services, regardless of the weather. Therefore it is imperative that all associates report to
work as usual during inclement weather. In the interest of safety, associates will be
allowed to arrive reasonably later than the start of their shift.
In the event that an associate fails to arrive for his or her scheduled shift, they will be
assessed the prevailing number of points allowable according to the company attendance
policy. Associates who do not report to work will be allowed to use PTO time (if
available) to make up lost work time, at management discretion.
As here pertinent, Ozburn’s most recent handbook, GC Exh. 30, does not contain the following
sentence which apparently was in effect up until the time of this handbook: “In the interest of
safety, associates will be allowed to arrive reasonably later than the start of their shift.”
GC Exh. 15 is Jennifer Smith’s “2010 Attendance Controller” and her “2009 Attendance
Controller.” As here pertinent, the documents contain the following notations: “3-3-09 left at
4pm (unexcused),” “3-4-09 called in.” The calendar for March 3 and 4, 2009 has a “U”
apparently meaning unexcused. The notes for the August 2009 calendar read as follows: “vehicle
stolen 8-14 late in left early @ 3:45 [The document originally read “(excused)” but this is
crossed out.] no docu. U.” The August 2009 calendar has a “TE” with “U” written over the “E”
apparently indicating that originally the tardy was excused and then when documentation was
not provided the excused was changed to unexcused. The calendar for January 7, 2010 is marked
“T” and there are no notes at the bottom of the calendar. There is no notation on the calendar for
Saturday February 27, 2010 and there are no notes at the bottom of the calendar for this date. The
following notation appears at the bottom of the February 2010 calendar: “2/8 snow day,” and
there is a “U” on the calendar for February 8, 2010 and “2” in the margin of the calendar on this
line of the calendar.
GC Exh. 29 consists of two e-mails. The first reads as follows:
From: Owens, Alfreda
Sent: Tuesday, August 11, 2009 12:07 PM
To: Young, Evangelia
Cc: Smith, Phil
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Subject: Conversation recap
Importance: High
Van,
This is a recap of the conversation.
Thank you,
Alfreda Owens
….
Date: August 11, 2009
Time: 11:40 AM approximately
RE: Recap of conversation
Anita Buford and Alfreda Owens were in general conversation (prayer) when she
stated the Jennifer Smith had approached her about union activity (joining and
more information on the subject). Anita said that Jennifer asked for her telephone
number and said she wanted to talk to her more. Anita refused to give her
telephone number and said she replied by referring Jennifer to Van Young if she
wanted information on a union. Further, Anita told Jennifer that unions were for
people who do not want to work but she (Anita) said I want to come to work. I
asked Anita when did all this happen and she said on last week.
Initially, I contacted Van Young with a voicemail then tried to make contact with
Phil Smith and Kelvin Davis. Van did return my call and the above information
was given.
Alfreda Owens
Operations Supervisor
The second e-mail reads as follows:
From: Young, Evangelia
Sent: Tuesday, August 11, 2009 12:27 PM
To; Tidwell, Andrew
Subject: FW: Conversation recap-FYI
Importance: High
Attachments: Jennifer Smith.doc
I asked Alfreda to recap this conversation for record. This is the 5540 building. The
building across the parking lot from where my office is.
Van Young
Regional HR Manager
….
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GC Exh. 19 is an October 22, 2009 e-mail from Young to Phil Smith and Owens which
reads as follows:
I have reviewed the document that Jennifer submitted to the HR dept and have
determine[d] the document is sufficient to support her request to be absent due to court.
In the future please when Time off Request forms are submitted for matters of this nature,
please return the approval or denial within 72 hours. If it is a provisional approval
pending supporting documents please write on the approved request and discuss with the
employee. Advise if you have any questions.
Trina Watkins, who is a OHL Operations Supervisor for the Eastern Bell Sports account,
testified that she was involved in the start up of this account on March 1, 2010; that as part of the
start up she asked for volunteers to come from other accounts to assist with the start up of the
Eastern account; that she asked for volunteers for overtime on Saturday February 27, 2010; that
she received a list of volunteers from Cheshier for February 27, 2010, and Jennifer Smith’s name
was on the list, without any qualification beside it; that it is her understanding that when an
employee signs up for overtime that employee is expected to show up and if they do not, they get
attendance points; that Jennifer Smith did not show up on February 27, 2010, and she did not call
in to explain why she was not showing up to work overtime in the Eastern Bell account (Tr. 856-
857); that she reported this to Phil Smith, who was administering the attendance because the
Brown-Halco account where Jennifer Smith worked did not have a supervisor at the time; and
that two other volunteers were either late or did not show up on February 27, 2010.
Owens, who as noted is an Operations Supervisor at OHL, testified that she switched
from the Brown-Halco account to the Water Pik account on February 22, 2010; that when she
was making the switch there was about a 3 week period that the Brown-Halco account was
without a supervisor; that while she was in the Brown-Halco account she supervised Jennifer
Smith; that she had a contentious relationship with Jennifer Smith long before she knew that
Jennifer Smith supported the Union; that as the supervisor for the Brown-Halco account one of
her responsibilities was to administer the attendance for that account; that GC Exh. 15 is the
2010 Attendance Controller or Calendar that she kept for Jennifer Smith; that R. Exh. 8 is the
Unitime report (“TIMECARD REPORT”) which show when Jennifer Smith received
attendance points; that first page of R. Exh. 8 shows that Jennifer Smith, who was scheduled to
start work at 9 a.m., clocked in at 10:55 a.m. on August 14, 2009; that on August 14, 2009
Jennifer Smith called and left a voice message for her indicating that her car had been stolen
from her driveway; that later that day Jennifer Smith told her “that her roommate had come home
about 1 a.m. and discovered that her car was no longer in the driveway and that she wanted to
file a police report and make an insurance claim and that was the reason for her being late in”
(Tr. 864); that shortly after her lunch break, Jennifer Smith came to her and said that she wanted
to leave work and go and pick up a police report and get information from her insurance
company regarding her stolen vehicle; that she told Jennifer Smith that she could go and obtain a
police report and/or her insurance information, but that she needed to return to OHL with the
documents so that OHL would have proof that there really was a car stolen; that she told Jennifer
Smith that if she did not return with the documents “an unexcused leave early would constitute
three points against her attendance, that we were willing to waive any attendance points if she
could bring back the documents stating that the vehicle had been, in fact, stolen and/or insurance
information that a claim had been filed” (Id. at 865); that Jennifer Smith agreed; that she thought
that Jennifer Smith punched out following this conversation but in subsequently reviewing the
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Unitime report she noted that Jennifer Smith, without authorization from her, went to work in a
different account (noted as “XFER” on the report) at 4:08 p.m. and then clocked or punched out
from that account at her regular quitting time, 5:45 p.m.; that as indicated on page five of R. Exh.
8, Jennifer Smith clocked in at 9:11 a.m. on January 7, 2010, and there was no reason to apply
OHL’s severe weather policy that day; that as indicated on R. Exh 15, another employee other
than Jennifer Smith, Dennis McLarty, came in after 9 a.m. (9:03 a.m.), and he received an
attendance point for that day15; that Jennifer Smith did not tell her that Phil Smith told her that it
was all right for her to be late that day; that as indicated on page six of R. Exh. 8, Jennifer Smith
did not punch in on February 8, 2010, and she received two points; that February 8, 2010 was a
day when OHL’s inclement weather policy was in effect but if an employee does not show up at
all, even though the inclement weather policy is in effect, the employee receives points; that as
shown on page seven of R. Exh. 8, Jennifer Smith did not come to work on February 27, 2010;
that she was told by Phil Smith that Jennifer Smith volunteered to work overtime in another
account, she did not show and she did not call in on February 27, 2010; that as indicated on page
nine of R. Exh. 8, on March 3, 2009 Jennifer Smith left early, at 4 p.m.; that she gave Jennifer
Smith attendance points for March 3, 2009 because she was asked to bring in her documentation
for her stated doctor’s illness and she did not do it; that as indicated on the last page of R. Exh 8,
Jennifer Smith did not come to work on March 4, 2009, she called in and said that she was sick,
she received points, and she never said that she had to go to court on that day; that GC Exh. 6 are
notes she took regarding Jennifer Smith’s attendance; that she was involved in attendance issues
relating to the Brown-Halco account in March 2010 even though she had been transferred to the
Water Pik account because at that time there was no covering supervisor and she had prior
knowledge of the account; that she did not know why Jennifer Smith’s February 8, 2010 absence
for which she received points was not included on the blue “Post-it”, GC Exh. 6; that she and
Phil Smith had a meeting in his office with Jennifer Smith to review GC Exh. 7, which is dated
“3-2-10” and is a Final Written Warning and suspension; that Jennifer Smith refused to sign the
disciplinary action for the suspension; that Jennifer Smith said that she could not have been tardy
on certain dates in December, and she refuted the January 7, 2010 entry, saying that she had
permission to come in late without indicating who had given her the permission; that no one had
told her that Jennifer Smith was excused for January 7, 2010; and that Jennifer Smith did not
mention the Union during this meeting.
On cross-examination Owens testified that she was not aware of the fact that Jennifer
Smith had testified in a Board proceeding against OHL some weeks earlier when Jennifer Smith
received her March 2, 2010 discipline; that she learned of that when she was about to testify in
the instant proceeding; that sometime in August 2009 she became aware that Jennifer Smith
supported the Union; that she sent an email to Van Young in August 2009 reporting that Jennifer
Smith had spoken in favor of the union to another employee who in turn reported it to her; that
she told Phil Smith about Jennifer Smith, without authorization, on August 14, 2009 going to
another account and working in that account from 4:08 p.m. to her quitting time, 5:45 p.m.; that
when she asked Jennifer Smith about transferring to the other account without authorization
Jennifer Smith said that she worked at the other account to make up the time she had lost on the
front end; that Jennifer Smith was not disciplined (apart from the three attendance points) for
transferring to another account without authorization; that if management was only dealing with

15 R. Exh. 16, McLarty’s 2010 Attendance Controller, has a “T” and a check mark for
January 7, 2010.
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the late arrival of Jennifer Smith on August 14, 2010 under the attendance policy she would have
only received one point for tardy; that page three of GC Exh. 15 is the 2009 Attendance
Controller for Jennifer Smith and there is a “TU” for tardy and unexcused in the August 14, 2009
box; and that to the right of the week which contains August 14, 2009 on page three of GC Exh.
15 there is a “3” for the three attendance points which were assessed.16
On redirect Owens testified that regardless of whether Jennifer Smith actually left OHL
premises early on August 14, 2009, she never provided any documentation to excuse the one
point for being late on August 14, 2009.
Cheshier, who is a OHL supervisor for the Dukal account, testified that at the behest of
Phil Smith on the Friday before the last weekend in February 2010 she went around and
collected volunteers to work overtime the next day, February 27, 2010, on the Eastern Bell
account; and that, among others, she asked Jennifer Smith who told her
She wanted to work. And then as I started to walk away, she said well, wait a minute, I
may not want to work. And so I asked her, I said well do you want to work or not. And
she told me she said well, just keep - - she said let me think about it and then come back
to me before you turn in the names. [Tr. 917]
Cheshier further testified that later that afternoon she went back to Jennifer Smith and asked her
if she had made up her mind as to whether or not she wanted to work the overtime; that Jennifer
Smith “said yes she wanted to work.” (Id. at 918); that she wrote Jennifer Smith’s name on the
list which she gave to Phil Smith, a copy of which she emailed to Trina Watkins; that Jennifer
Smith never told her that (a) she wasn’t sure whether she was going to be able to make it on that
Saturday, or (b) she had a lot going on at home that Saturday; that as a practice she would not let
an employee give her a maybe for voluntary overtime; that she found out that Jennifer Smith did
not show up for the voluntary overtime work on February 27, 2010 when she telephoned
Watkins on Monday to find out if the employees on her list showed up; and that she conveyed
this information to Phil Smith.
Young testified that Jennifer Smith came to her because she received an occurrence
because she was out to attend a court appearance even though she had the documentation; that
Jennifer Smith told her that she told the supervisor the day before that she had to go to court; that
she telephoned Phil Smith and she sent an email to Owens and the points were removed; that
Jennifer Smith did not come to her to challenge any other points she received; that if an
employee is absent and it is unexcused, the employee can use a paid time off day in order to get

16 The following “Notes” are written at the bottom of the August 2009 calendar, GC Exh.15:
Vehicle stolen 8-14 late in
left early @ 3:45 (excused) [the word “excused” is crossed out] no doc. U
There are no points written in the column at the end of the week in August which includes
August 22, 2009 which has “LE” and a check mark in the box. It therefore appears that the “left
early @ 3:45 ….” refers to the August 14, 2009 entry and not the August 27, 2009 entry. Also, it
is noted that “Vehicle stolen 8-14 late in” takes up the entire space on the first line provided for
“Notes” forcing the writer to use the second line not because it refers to a different incident but
rather because there was no room on the first line to finish the note regarding August 14, 2009.
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paid but it does not affect the occurrence point and the employee would still get the point; that if
an employee is suspended, the employee cannot use paid time off to be compensated for the time
they are off due to a suspension; that two former OHL employees, Stephanie Gentry and Antwan
Bland were discharged on March 1, 2010, R. Exhs. 17 and 18, respectively, after both
volunteered for an overtime Saturday, February 27, 2010, they were governed under the
attendance policy, Gentry received an unexcused absence, Bland was tardy, and both received
occurrence points which led to their discharges; and that GC Exh. 19, which is an email she sent
to Phil Smith on October 22, 2009, deals with the sufficiency of documentation Jennifer Smith
submitted to HR regarding an absence due to court in October 2009 and not in March 2009.
Phil Smith testified that the Brown-Halco account at OHL falls under his umbrella; that
Owens came to him and told him that Jennifer Smith was late one day because her car was
stolen; that he told Owens to tell Jennifer Smith that if she provided proper documentation the
attendance point for being tardy that day would be forgiven; that Jennifer Smith never produced
the documentation; that regarding January 7, 2010, the roads had been cleared by 8 a.m. so
anyone who came in late did receive points in that the inclement weather policy did not apply;
that everyone in the Brown-Halco account who came in late on January 7, 2010 did receive
attendance points; that he did not tell Jennifer Smith on January 7, 2010 that she was not going to
receive points for arriving late on January 7, 2010; that February 8, 2010 was another day where
there was inclement weather and on that day even though the inclement weather policy was in
effect, if the employee does not show up he or she received points; that he is familiar with the
situation where volunteers were collected for overtime in the Easton account, which is one of his
accounts, on February 27, 2010; that, as here pertinent, he asked Cheshier to seek volunteers in
the 5540 Building which houses the Brown-Halco account; that Jennifer Smith’s name was on
the list of employees who volunteered for the overtime on February 27, 2010; that Jennifer
Smith’s name on the list was not qualified in any way and, indeed, the employee either commits
or the employee does not commit in that there is no “if I can” (Tr. 1111); that if an employee
commits to coming and does no show up, the employee receives attendance points; that for about
6 to 8 weeks in early 2010 that account was without a supervisor because Owens, who was the
supervisor for the Brown-Halco account, transferred to the Water Pik account; that during this 6
to 8 weeks he kept the attendance calendars for the Brown-Halco account; that he was involved
in administering the final written warning suspension, GC Exh. 7, to Jennifer Smith (GC Exh. 7
indicates that Jennifer Smith had 13 points.); that the March 2, 2010 meeting with Jennifer Smith
was held in his office with Owens present; that they went over a note with the dates for which
she was getting points, GC Exh. 6, and Jennifer Smith’s calendar; that Jennifer Smith
“questioned some different points and we removed and left the ones that were appropriate” (Id.
at 112); that Jennifer Smith questioned the one about the three points for the leave early for the
theft of her car and he asked her if she ever brought the information to Owens regarding the
police report or the insurance and she said she did not; that he told Jennifer Smith that in view of
that the points would not be removed; that while Owens was no longer Jennifer Smith’s
supervisor, he had Owens there because a lot of the points were assessed during the time Owens
managed Jennifer Smith; that Jennifer Smith did not give a compelling reason during this
meeting to remove enough points to get her under the category of a final written warning; that
points remain on the employee’s record for 12 months; that one point is given for being late and
two points are given for being absent; that an employee gets a final written warning at 12 points
and Jennifer Smith had 11 points and then received 2 points for her absence on February 27,
2010 which gave her 13 points; that as demonstrated by GC Exh. 28, which refers to – among
others – points assessed on March 3 and 4, 2009, Jennifer Smith succeeded during her first
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written warning meeting with him and Owens on April 17, 2009 in having 2 points for “4-1-09”
taken off her record; and that during the March 2, 2010 meeting Jennifer Smith did ask him
whether it was 12 or 13 points and he told her it did not really matter in that 12 or 13 would
result in the final written warning.
On cross-examination Phil Smith testified that he was OHL’s designated representative in
the earlier trial that was held in February and March 2010 and so he knew that Jennifer Smith
testified in that proceeding that she observed him destroying or disposing of Union literature in
the break room; that employees who are tardy arriving within 2 hours of their start time, having
called in, receive one point; and that when Owens asked him if she should give Jennifer Smith
points for coming in late the day her car was allegedly stolen, he told Owens that for Jennifer
Smith not to get the tardy points she would have to provide documentation to verify what
Jennifer Smith is saying is actually true.
On redirect Phil Smith testified that of the 13 attendance points that Jennifer Smith had
when she received her final written warning only two of the points were given to her after she
testified in the prior proceeding involving OHL in February 2010, which are the two points she
received for not showing up for the overtime she volunteered for on February 27, 2010.
GC Exh. 37 is a position statement of OHL dated “March 22, 2009.” As noted above, the
letter opens with “In response to your e-mail of March 9, 2010 ….” Obviously the date on the
letter should be March 22, 2010. As here pertinent, the statement summarizes the reasons for the
suspension of Jennifer Smith. Among other things, OHL indicates:
Actually, Ms. Smith could have received four points for a no-call no show [on February
27, 2010 when she volunteered for overtime and did not show], but instead, the company
displayed leniency and only issued two points. These two points resulted in Ms. Smith
having a total of 13 points. Again, the company displayed leniency and only suspended
Ms. Smith, even though 13 points is enough to warrant termination under OHL’s
attendance policy.
Analysis of the Alleged Unfair Labor Practices
Paragraph 7(a) of the complaint alleges that Young, at OHL’s Memphis facility, on or
about November 8, 2009 interrogated an employee about the union activities of other employees.
Counsel for General Counsel on brief contends that when Herron was interrogated by
Young in November 2009 she had not been engaged in any open union activity; that Young
asked Herron “What’s up with G and Nichole with the Union”; that the testimony of Rayford and
Bledsoe corroborates Herron’s testimony concerning the interrogation; that Young admits that
her conversation with Herron took place at the same location Herron identified but Young asserts
that she only asked Herron “hey, is Glenora okay”; that in determining whether an interrogation
violates Section 8(a)(1) of the Act, the Board considers “whether under all the circumstances the
interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act,”
Bloomfield Health Care Center, 352 NLRB 252 (2008), citing Rossmore House, 269 NLRB
1176, 1178 fn.20 (1984); that relevant factors to be considered are whether the interrogated
employee is an open or active Union supporter, the background of the interrogation, the nature of
the information sought, the identity of the questioner, and the place and method of the
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interrogation, Bloomfield Health Care Center, supra; that here Young’s question to Herron
concerning whether Rayford and/or Bledsoe were Union supporters constituted an unlawful
interrogation; and that this is especially so since Herron was not an open Union supporter and
Young is a high-ranking member of management who was seeking information concerning the
union sentiments of employees who had not engaged in open union activity.
OHL on brief argues that there must be a finding that the alleged interrogation “interferes
with, restrains, or coerces employees,” Rossmore House, supra at 1178; that Young has known
Herron for 10 years; that Herron is the aunt of Rayford and the great-aunt of Bledsoe; that Young
did not ask Herron about Rayford in the context of the Union but rather Young testified that she
asked about Rayford because it seemed that there was something wrong with her; that this
conversation between long-time acquaintances who met briefly by chance, not in the presence of
other employees, without any objective signs of threats or coercion, is at most de minimis; and
that “[i]n Herron’s own version of how she described this conversation to Rayford, she did not
add the phrase ‘with this Union (R. 294-95).” (R. Br. 26)
The following is the testimony of Rayford on Tr. 294 – 295:
Q And tell me again what Helen [Herron] told you she was questioned about.
A She said Van Young came to her and asked her what was up with G and Nichole? And
she said she was afraid; she told Van that she was going to do her. And Van, she said Van
said to her that I know you wasn’t [sic] like them.
Q Do you know what that conversation - - what did you understand that conversation to
be about?
A The Union, Union doing - - Union.
Q Okay, so it wasn’t about - - was it about Nichole making her supervisor cry?
A No, the Union.
What appears on Tr. 294 – 295 is not, as Respondent asserts on brief, “Herron’s own version of
how she described this conversation to Rayford ….” Rather it is Rayford’s version of how
Herron described her conversation with Young to Rayford. When a person repeats what they
were told about a conversation that someone else had there is always the risk that it will not be
repeated verbatim. However, as pointed out in the testimony of Rayford on Tr. 295, there was no
doubt that Herron conveyed to her that Young’s conversation with Herron was about the Union.
This is reinforced by Rayford’s testimony that Herron said she was scared, she was afraid, and
by the fact that “Helen asked … [Rayford] to call Nichole … to tell Nichole to bring her
[Herron] a Union card.” Tr. 294
First, did Young say what Herron alleges she said? Herron is a credible witness. Young is
not a credible witness. Dye did not testify to deny that he carried a box of T-shirts from Young’s
office to Rayford’s pallet jack. Rayford testified that when Dye came to Young’s office to get the
box there were a number of T-shirts bundled in the office. Dye did not testify to deny this.
Young denies that there were bundles of T-shirts in her office. She also denied that she
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distributed the T-shirts until she was shown the testimony she gave in the prior Board trial. Since
Dye did not testify to deny Rayford’s testimony about him being in Young’s office when there
were bundles of T-shirts there, Rayford’s testimony is credited. Young lost her credibility with
her testimony regarding the “Obama” T-shirts. Young did not impress me as being a credible
witness. Young said what Herron testified Young said. When Young interrogated Herron, she
was not an open Union supporter. Young, as regional resource manager, is OHL’s highest
ranking human resources manager on site in Memphis. While it appears from the timing of the
interrogation that at the time management was aware Bledsoe had, with Pugh, demonstrated that
she supported the Union, management was trying to determine if Rayford supported the Union.
Also, it would appear that this interrogation occurred after Rayford told Young and White that
she would speak to Bledsoe about her support of the Union. Apparently Young was trying to
determine from Herron whether Rayford was having any success with her daughter, convincing
her to give up her support of the Union. As to whether the interrogation reasonably tended to
restrain, coerce or interfere with rights guaranteed by the Act, it is noted that Herron testified that
she was scared and she was afraid. While these are subjective declarations, the fact that Herron,
after Young interrogated her, asked for a union card to sign for protection demonstrates that as
far as Herron was concerned the interrogation did restrain, coerce and interfered with the rights
which are guaranteed by the Act. Rayford and Bledsoe corroborate Herron’s testimony that she
asked for a union card following this interrogation. And Rayford corroborates Herron regarding
Herron’s interrogation by Young. In my opinion, a finding that Young’s interrogation of Herron
reasonably tended to restrain, coerce, or interfere with the rights guaranteed by the Act is
warranted. Respondent violated the Act as alleged in paragraph 7(a) of the complaint in that
Young interrogated Herron about the union sympathies of Rayford and Bledsoe.
Paragraphs 7(b), (c) and (d) of the complaint collectively allege that Young, at OHL’s
Memphis facility, on or about November 10, 2009 (1) interrogated an employee about the union
activities of other employees and the employee’s union activities and sympathies, and (2)
solicited an employee to persuade another employee to abandon the employee’s support for the
union.
Counsel for General Counsel on brief contends that Rayford provided detailed and
credible testimony about her interrogation by Young and White on about November 10, 2009;
that conversely Young and White provided vague, non-specific testimony about their exchange
with Rayford regarding Bledsoe’s support of the Union ; that the questioning of Rayford in a
private office area by high-ranking management was clearly coercive; that Young’s questioning
of Rayford about whether everything was okay with Bledsoe was unlawful inasmuch as Young,
by posing the question, was seeking to elicit information regarding the Union sympathies and
activities of another employee; that questioning Rayford about whether she supported the Union
was unlawful; and that Young’s efforts to have Rayford persuade Bledsoe to abandon her
allegiance to the Union violates Section 8(a)(1) of the Act.
Respondent on brief argues that there was no union conversation at all by Young at any
time during the conversation which General Counsel contends occurred on November 10, 2009;
that Rayford’s testimony about the November 10 conversation with Young is simply
unbelievable given her absurd characterization of her relationship with Young at the trial herein;
and that Rayford’s failure to come forth with these allegations until after the election in March
2010 about events at OHL in November 2009 smacks of recent fabrication.
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According to Rayford’s testimony, this interrogation commenced with Young telling her
that White came to Young and told Young that an employee on the floor told White that Nichole
is a Union supporter. Young did not specifically deny this testimony. And White did not
specifically deny that she told Young that an employee on the floor came to her and told her that
Nichole Bledsoe is a union supporter. So, on the one hand, the two management witnesses do not
specifically deny the events which triggered the interrogation. On the other hand, Rayford’s
testimony regarding this interrogation is corroborated, after the fact, by (a) Bledsoe’s testimony,
(b) Herron’s testimony regarding Young subsequently interrogating her to, among other things,
find out from her if Rayford indeed was trying to convince Nichole to stop supporting the Union,
and (c) Young’s statement to Rayford after Young found out what Rayford told Adams at the
Remington account. Add to the mix Young’s total lack of credibility. Rayford’s testimony
regarding her November 10, 2009 meeting with Young is credited. In November 2009 Rayford
was not openly supporting the Union at work in that she was not wearing pro-Union pins or T-
shirts and she had never handed out union flyers as employees were coming and going to OHL’s
facility. The interrogation, as here pertinent, was conducted by OHL’s regional manager of
human resources in her office. On this occasion her supervisor, Dye, told Rayford that Young
wanted to see her in Young’s office. During this meeting Young, after bringing up the Union,
asked Rayford “are you for it.” (Tr. 288) As noted above, the issue regarding Young’s
interrogation of Rayford on November 10, 2009 is whether it reasonably tends to restrain, coerce
or interfere with the rights guaranteed by the Act. During this meting Young reminded Rayford
that she had done a lot for Rayford and her family including getting Bledsoe’s job back. Young
also told Rayford that she did not know who to trust and “she didn’t see how people would do
her like this” (Tr. 288). In other words, Young was telling Rayford that she had betrayed the trust
Young had placed in Rayford. All things considered, Young’s asking Rayford if she was for the
Union reasonably tended to restrain, coerce or interfere with rights guaranteed by the Act.
Respondent violated the Act as set forth in paragraph 7(c) of the complaint to the extent Rayford
was asked about her union sympathies. OHL also violated the Act as set forth in paragraph 7 (b)
of the complaint in that one of the purposes of Young’s interrogation of Rayford on November
10, 2009 was to verify whether Bledsoe did in fact support the Union.
With respect to the allegation that Young solicited Rayford to persuade Bledsoe to
abandon her support of the Union, Rayford’s testimony is credited. As noted above, Young is not
a credible witness. Also, as noted above, Young did not specifically deny how she opened this
meeting, namely telling Rayford that White told her that an employee on the floor told White
that Bledsoe supported the Union. Rayford’s testimony is credited. Young, in effect, told
Rayford that Rayford’s family, Bledsoe, had betrayed Young even after Young had “got her
[Bledsoe’s] job back.” (Tr. 288) All of this led up to one of the purposes of the meeting, namely
Young wanted Rayford to talk to Rayford’s daughter for Young and White. Respondent’s
solicitation of Rayford to persuade Bledsoe to abandon her support of the Union is a violation of
Section 8(a)(1) of the Act, Meat Processors of Green Bay, 228 NLRB 984 (1977). As set forth in
paragraph 7(c) of the complaint, Respondent violated the Act by soliciting Rayford to persuade
her daughter, Bledsoe, to abandon her support of the Union.
Paragraph 8 of the complaint alleges that on or about November 10, 2009, Respondent,
by White at Respondent’s facility, interrogated an employee about the union activities of another
employee.
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Did White on November 10, 2009 interrogate Rayford about the Union activities of
Bledsoe? It appears that all are in agreement that before the November 10, 2009 conversations
between Young, White, and Rayford, Bledsoe had a verbal exchange with her supervisor, who
was placed on notice by Bledsoe that she supported the Union. As noted above, Young opened
her November 10, 2009 meeting with Rayford by telling her that White told her, Young, that
Bledsoe supported the Union. OHL’s management had already been told that Bledsoe supported
the Union. I credit the testimony of Rayford regarding what White said to Rayford on November
10, 2010. White was aware that Young had just told Rayford that management was aware that
Bledsoe supported the Union in that White had previously conveyed this information to Young.
When Rayford told White on November 10, 2009 that she was going to speak to her daughter for
Young, White knew exactly what Rayford was talking about. White’s question was whether
Bledsoe was going to listen to her mother, Rayford. This was the solicitation of a confirmation
from Rayford by White that Rayford was going to attempt to persuade Bledsoe to abandon her
support of the Union. White’s question was in furtherance of Young’s solicitation of Rayford to
persuade Bledsoe to abandon her support of the Union. With her interrogation, White was also
seeking confirmation that Bledsoe supported the Union. White’s question was both an
interrogation regarding Bledsoe’s union support and a continuation of Young’s solicitation effort
which undoubtedly originated with White when White told Young that she had been told
Bledsoe supported the Union. Both White and Young made a choice. They could have left the
matter alone when they were made aware of facts which appeared to demonstrate that Bledsoe
supported the Union. Instead, they chose to use Young’s relationship with Rayford as leverage to
get Rayford to persuade Bledsoe to abandon her support of the Union. Respondent, by White
questioning Rayford regarding the solicitation effort and, in effect, Bledsoe’s union support,
violated Section 8(a)(1) of the Act.
Paragraphs 9(a), (b), and (c) of the complaint allege, respectively, that Ewing by
telephone from Respondent’s Memphis facility (a) interrogated an employee about the
employee’s union activities and sympathies, (b) told an employee that he did not want the
employee to work in the Remington department because of the employee’s union activities, and
(c) threatened an employee with unspecified reprisal if the employee discussed with other
employees the conversation between Ewing and the employee.
Counsel for General Counsel on brief contends that the evidence adduced establishes that
in November 2009 Ewing told Rayford that he did not want her working in the Remington
account because he did not want “this union shit in his account,” General Trailer, Inc., 330
NLRB 1088 (2000) (unlawful to tell an employee he is being denied overtime opportunities in
retaliation for union support); that Ewing unlawfully asked Rayford “are you for the Union”; that
Ewing’s denial that he made such a statement should not be credited; that Ewing made an
unlawful threat of unspecified reprisal when he told Rayford there would be repercussions if she
discussed their conversation with other employees; that the Board has held that an employer
cannot prohibit discussions of workplace matters such as overtime, discipline, sexual harassment,
insurance copayments and wages absent a legitimate and substantial business justification; that
the Board has held that nonspecific threats such as Ewing’s threat that she would not like the
outcome if she told coworkers about their conversation, violate Section 8(a)(1) of the Act,
California Gas Transport, Inc., 347 NLRB 1314 (2006); that in the context given that Ewing’s
threat immediately followed his interrogation of Rayford and the unlawful denial of continued
overtime, the implication is clear that Rayford could expect additional unspecified reprisals
against her in the future if she did not comply with Ewing’s unlawful demands; and that
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following this conversation with Ewing, Rayford reasonably concluded that further requests to
work overtime in the Remington account would be futile.
OHL on brief argues that Ewing did not ask Rayford whether she was for the Union
during the 30-minute telephone conversation on November 17, 2009; that the Union did not
come up during the telephone conversation, and Ewing did not tell Rayford that he “didn’t want
the union shit here”; that Ewing did not tell Rayford not to tell anyone about the conversation
with him or there would be repercussions; that Ewing told Rayford she was welcome to return to
Remington to work overtime; and that since November 18, 2009, Rayford has not requested to
work overtime at Remington.
As set forth below, Ewing lied under oath about a material fact, namely, whether he met
with any of his employees individually about the Union campaign. Ewing is not a credible
witness. Rayford’s testimony regarding what Ewing said during their long telephone
conversation on November 17, 2009 is credited. By threatening Rayford with an unspecified
reprisal, Ewing unwittingly corroborated - before she testified at the trial herein - Rayford’s
testimony. The reason Ewing threatened Rayford if she discussed with other employees their
conversation is that Adams had just told him that Rayford discussed with her Rayford’s
conversation with Young. Rayford told Adams that she gave Young a hug when Young was
upset and crying about the union campaign. Adams did not testify to deny this. And although
Young testified, she never specifically denied asking Rayford, after Rayford spoke with Adams
in Remington, “why was … [Rayford] putting her [Young’s] business down in Remington” (Tr.
313) and “[w]hy are you [Rayford] spreading my [Young’s] business at Remington” (Ibid.)
Ewing did not want Rayford repeating what he told her, as he knew that Rayford did with respect
to what happened with Young, so he threatened her with an unspecified reprisal. Respondent
violated the Act as alleged in paragraphs 9(a), (b), and (c), except that Ewing did not specifically
interrogate Rayford about her union activities but rather he interrogated her about her union
sympathies.
Paragraph 10 of the complaint alleges that on or about March 1, 2010, Respondent, by
Ernest (Buddy) Lowery at Respondent’s facility, interrogated an employee about the employee’s
union sympathies.
Counsel for General Counsel on brief contends that it is undisputed that Kurtycz was not
known by OHL to be a Union supporter prior to March 1, 2010 when Lowery unlawfully
interrogated her on the work floor around 9:30 a.m.; that Lowery approached Kurtycz and told
her that she was on his list, he showed her a Board notice, and he told her that if the Steelworkers
Union was selected, it was not going to happen; that Lowery asked Kurtycz what she thought
about the Union and she told him that the Union was good, and she proceeded to tell him about
the excessive overtime while Lowery appeared to be taking notes; that while Lowery denies
interrogating Kurtycz as alleged in the complaint, Lowery (a) admitted that he was on the work
floor because he had a list of employees he was instructed to speak to about the Union campaign,
and (b) did not definitively deny having a Notice to Employees with him that morning; that
Lowery’s memory was highly selective and his testimony evasive when he was asked about the
list and the Union topics he was instructed to discuss with the hourly employees on that day; and
that Lowery’s testimony should not be credited in light of his evasive uncorroborated testimony
and implausibly selective memory of that day.
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OHL on brief argues that in subsequent conversations with Cousino and Washington
Kurtycz did not report that Lowery had improperly questioned her; that Lowery denies under
oath that (a) he was holding the Notice to Employees, (b) he told Kurtycz you are on my list, (c)
he discussed the Steelworkers or the Union, and (d) he asked Kurtycz how she felt about the
Union; that Lowery had no motive to lie; that Kurtycz obviously had the stronger motive to
fabricate because this allegation can be argued to support her 8(a)(3) allegation; that even if
Kurtycz’s testimony is credited, this brief conversation fails to pass the Rossmore House, 269
NLRB 1176 (1984) test for coerciveness in that (1) it happened out on the work floor, (2)
Kurtycz did not feel compelled to talk to Lowery, who was not in her chain of supervision, (3)
Kurtycz voluntarily shared her complaints and a brief statement about the Union, (4) this
“interrogation” did not take place in the presence of other employees, and (5) this was a very
brief conversation; that nothing about this conversation could be objectively interpreted to
“interfere with, restrain, or coerce; and that at most, it was a de minimis violation, Yellow
Enterprise System, 342 NLRB 804, 810 (2004).
Kurtycz was not an open Union supporter before her conversation with Lowery on March
1, 2010. Lowery admits talking with Kurtycz on March 1, 2010. But it is his position that
Kurtycz initiated the conversation and she voluntarily offered, without being asked, that the
Union was good. Contrary to the assertions of OHL on brief, (a) Kurtycz did bring up her
interrogation by Lowery earlier on March 1, 2010 when she was being suspended later that day,
and (b) Lowery did not unequivocally deny that he showed Kurtycz a copy of a Notice to
Employees. Rather, as noted above, Lowery testified that he wouldn’t think that he had GC Exh.
4 (a Notice to Employees) in his hand when he was talking to Kurtycz. Also, as set forth above,
Lowery, regarding what occurred on March 1. 2010, could not remember what the Union related
topic was that he was supposed to discuss with employees on his list, he might have had a
notebook in his hand, he did not think he told Kurtycz that she was on his list, he could not
remember who, other than Johnson, was on his list but Kurtycz was not, and he did not recall
who he did talk to after Johnson that day. Kurtycz’s testimony was unequivocal. Lowery’s
testimony was equivocal. Kurtycz’s testimony is credited. Lowery’s testimony is not credited. In
the context in which it occurred, Lowery’s interrogation of Kurtycz would reasonably tend to
restrain, coerce, and interfere with the rights guaranteed by the Act in that Lowery combined his
interrogation of Kurtycz with the declaration of the futility of selecting the Steelworkers because,
according to Lowery, it was not going to happen. As alleged in paragraph 10 of the complaint,
OHL violated the Act when Lowery on March 1, 2010 interrogated Kurtycz about her union
sympathies.
Paragraphs 11(a) and (d) of the complaint collectively allege that since November 17,
2009, Respondent has refused to allow Glenora Rayford to work overtime in the Remington
department because she joined or assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities.
Counsel for General Counsel on brief contends that here it has been shown that protected
concerted activity was a motivating or substantial factor in the adverse employment action,
namely the refusal to allow Rayford to work overtime in the Remington account, Wright Line,
251 NLRB 1083 (1980) enfd., 662 F.2d 800 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982);
that if such a showing is made, the burden shifts to the Respondent to prove that it would have
taken the same action even in the absence of the employee’s protected activity; that if the reasons
given for the employee’s actions are pretextual, namely false or not in fact relied upon, the
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employer does not meet its burden and no further analysis is required; that employer conduct
which reflects hostility toward unionization may be relied on to show anti-union animus, even
though that conduct is not itself unlawful; and that OHL’s refusal to allow Rayford to work
overtime in the Remington account after November 17, 2009 violated Section 8(a)(3) of the Act,
Sprain Brook Manor, 351 NLRB 1190 (2007) (unlawful reduction in overtime in retaliation for
employee’s union support).
OHL on brief argues that General Counsel has failed to make a prima facie case under
Wright Line, supra, in that there is no evidence of protected activity by Rayford as of November
17, 2009, nor any motivational link or nexus between Rayford’s protected activity and any
adverse employment action; and that General Counsel has failed to prove an adverse
employment action in that Rayford did not seek overtime before it can be refused.
The only overtime involved here is that which was available in the Remington account.
As noted above and below, Ewing lied under oath about a material fact, namely, whether he met
with any of his employees individually about the Union campaign. Ewing is not credible. His
testimony is not credited. The testimony of Rayford is credited. Rayford did not continue to seek
overtime in the Remington account because Ewing made it clear to her that such an endeavor
would be futile. General Counsel has shown that Rayford engaged in concerted protective
activity which was viewed by Ewing as a demonstration of her support of the Union. The anti-
union animus of OHL is spread throughout this record. As found in this decision, OHL violated
the Act on a number of occasions. Ewing himself provided the nexus between the protected
activity and the adverse employment action. So we have protected activity, employer knowledge,
adverse employment action, anti-union animus, and a showing of nexus. OHL does not concede
that there was an adverse employment action. OHL has not shown that it would have taken the
action it did absent the protected activity. OHL has not shown that it had any lawful business
justification for what it did to Rayford. The version of events offered by Ewing, who has no
credibility, was a total fabrication. OHL violated the Act as alleged in paragraphs 11(a) and (d)
of the complaint.
Paragraphs 11(b), (d), and (e) of the complaint collectively allege that on about March 2,
2010, Respondent issued a final warning and a one-day suspension to its employee Jennifer
Smith because she (1) joined or assisted the Union and engaged in concerted activities, and to
discourage employees from engaging in these activities, and (2) testified on behalf of the General
Counsel at an unfair labor practice hearing on February 17, 2010 in Case 26-CA-23497 et al.
Counsel for General Counsel on brief contends that OHL was aware of Jennifer Smith’s
pro-Union sentiments; that Jennifer Smith testified in mid-February 2010 in the hearing before
Judge Carson and provided damaging testimony concerning Phil Smith and Alfreda Owens; that
within weeks of this testimony, Jennifer Smith was given a final warning and one-day
suspension for attendance violations; that Respondent’s testimony regarding the basis for
assessing three points against Jennifer Smith on August 14, 2010 for leaving early was a poorly
assembled fabrication; that Jennifer Smith should not have been charged one point for tardiness
on January 7, 2010 because Humphrey’s tardiness was excused on that same day due to weather
conditions; that the February 8, 2010 attendance infraction was not relied on by OHL when the
March 2, 2010 discipline was issued to Jennifer Smith; and that the only thing that changed after
January 2010 was Jennifer Smith’s testimony against OHL in February 2010.
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OHL on brief argues that Jennifer Smith’s current claim regarding the points for March 3
and 4, 2009 is a recent fabrication; that Jennifer Smith was told on August 14, 2009 that she
would get three points for leaving early if she did not bring back the documentation (She did
not.) showing that she had reported that her car was stolen; that the evidence shows that Owens
was consistent in assigning points for tardiness on January 7, 2010, notwithstanding the
supposedly inclement weather; that Jennifer Smith admits that she was absent on February 8,
2010; that on February 27, 2010 Jennifer Smith did not show up for work and she did not contact
anyone to explain her absence; that General Counsel failed to make a prima facie case under
Wright Line, supra, which is applicable to Section 8(a) (3) and (4) charges [See Freightway
Corp., 299 NLRB 531m 532 (1990).], to support the allegation that the one-day suspension of
Jennifer Smith was due to her union activity or in retaliation for her testimony at a prior Board
proceeding; that Jennifer Smith’s attendance problems arose long before any overt union
activity, and there is absolutely no showing supporting a motivational link or nexus between
Jennifer Smith’s protected activity and her one-day suspension; that all the imposition of
occurrence points, except for her no-show on February 27, 2010, occurred prior to her Board
testimony; that Humphrey worked in a different account than Jennifer Smith on January 7, 2010,
there is nothing in the record to show what time Humphrey was scheduled to start work on
January 7, 2010, the weather was worse in the early morning hours of January 7, 2010, and
General Counsel did not lay the proper foundation for a comparison because there is no evidence
in the record from which one could conclude that Humphrey and Jennifer Smith were similarly
situated; that Jennifer Smith did not give OHL the documentation showing that she reported her
car being stolen and, therefore, Jennifer Smith could have received a point for coming to work
late that day; that no matter how the points are examined, the end result under any calculation is
that Jennifer Smith incurred the twelve points to receive the suspension; and that even if the
burden shifted to OHL under the Wright Line, supra, analysis, OHL has carried its burden of
showing that Jennifer Smith would have been suspended regardless of her union support or
Board testimony.
Jennifer Smith never specifically denied Owens’s testimony that Owens told her on
August 14, 2009 that she was being allowed to leave early with the understanding that if she did
not return with the documentation supporting her assertion that her car was stolen, she would
receive three points for leaving early.17 In view of this, is it reasonable for General Counsel to
contend that “Respondent’s testimony regarding the basis for assessing three points against
Jennifer Smith on August 14, 2009, was a poorly assembled fabrication designed to support the

17 It is noted that Jennifer Smith testified before Owens testified; that Jennifer Smith did not
testify as a rebuttal witness; that when Jennifer Smith was called by General Counsel Jennifer
Smith testified that a couple of days after August 14, 2009 Owens asked Jennifer Smith for the
documentation for the August 14, 2009 alleged theft of her car; and that Jennifer Smith testified
that the three points she was charged for August 14, 2009 are not the correct number of points
that should be charged for being tardy in that on other specified days she was only charged one
point for being tardy. Since Jennifer Smith did not testify on rebuttal, she did not even attempt to
specifically refute Owens’s testimony and the documentation that on August 14, 2009 she,
Jennifer Smith, left her normal account early after Owens told her that she would get three points
for leaving early if she did not provide documentation showing that she reported her car being
stolen, and when she left her normal account early on August 14, 2009 she worked, without the
proper authorization, in another account.
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unlawful actions …?” (GC’s Br. 54) As noted above, on brief General Counsel contends that the
only thing that changed after January 2010 was Jennifer Smith’s testimony against OHL in
February 2010. This is not true in that the triggering event occurred on February 27, 2010 when
Jennifer Smith did not call in and did not show up for overtime that she had volunteered for, and
she was, therefore, given two attendance points.18 Since she never produced the documentation
to show that her car, as she asserts, was stolen, Jennifer Smith could also have received one point
for being late that day without documentation. Additionally, OHL could have counted the
February 8, 2010 infraction in determining what discipline to give Jennifer Smith. Jennifer Smith
supported the Union and she engaged in a protected activity, namely testifying in a Board
proceeding against OHL. OHL knew this. Anti-union animus has been shown. There was an
adverse employment action. But it has not been shown that there is a nexus between testifying in
the prior Board proceeding and the discipline in that all of the points in question, except two,
were received before Jennifer Smith testified in the other Board proceeding, and on brief General
Counsel does not seriously contest the two attendance points Jennifer Smith received after she
testified in the other Board proceeding. Indeed, in contending that “[t]he only thing that changed
after January 2010 was Jennifer Smith’s testimony against Respondent in February” General
Counsel is refusing to acknowledge in the argument portion of her brief that Jennifer Smith
volunteered for overtime on February 27, 2010, she did not call in, and she did not show up for
work on that day.19 And even if it was determined that the burden of going forward had shifted,
which it has not, OHL has demonstrated that it would have taken the same action it did absent
Jennifer Smith’s union and protected activity, and OHL has shown that it had a lawful, sufficient
business justification for its discipline of Jennifer Smith. In disciplining Jennifer Smith, OHL did
not violate either Section 8(a)(3) or 8(a)(4) of the Act.
Paragraphs 11(c) and (d) of the complaint collectively allege that on about March 2,
2010, Respondent discharged its employee Glorina Kurtycz because she joined or assisted the
Union and engaged in concerted activities, and to discourage employees from engaging in these
activities.
Counsel for General Counsel on brief contends that the timing of Kurtycz’s discharge,
which followed OHL’s first knowledge of her union sympathies and occurred only 2 weeks prior
to the Union election, supports an inference of animus; that Kurtycz engaged in protected
activity, OHL knew, OHL manifested animus toward the activity, and an inference is warranted
that Kurtycz’s protected activity was a motivating factor in her discharge; that no other employee
had ever received discipline for violating the solicitation policy; that Kurtycz did not engage in
any union solicitation activity on March 1, 2010 but even if she did, OHL “has declined to
terminate employees who are on ‘final warning’ status and commit an additional related

18 As noted above, two points are given for an unexcused absence. When the incident
involves a no call/no show the employee is supposed to receive four points. While General
Counsel correctly moved to delete the reference to the no call/no show in R. Exh. 8, Watkins
testified, without contradiction, that Jennifer Smith did not show up on February 27, 2010 and
she did not call in. Under OHL’s rules, Jennifer Smith should have received 4 points and not 2
points for February 27, 2010. She conceded that she did not call in on February 27, 2010.
19 Both Watkins and Jennifer Smith testified that Smith did not call in on February 27, 2010.
And the fact that Jennifer Smith did not show up for work on February 27, 2010 is not
challenged. OHL’s policy in such instances, as set forth above, is unequivocal.
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infraction (Tr. 1038 – 1042; GCX 33)20”; that Respondent failed to conduct a valid investigation
in that Kurtycz was never given an opportunity to provide a written statement or to meaningfully
challenge the accusations against her; that the testimony of Moore and Crawford was not
consistent with their written statements or the supervisor’s documentation of the initial reports of
these employees; that alleged additional employee witnesses were never interviewed by any
supervisor; that Hill testified that she was standing next to Moore when Kurtycz approached both
of them with union cards; that Moore denied that she was ever approached by Kurtycz and
Moore never identified Hill being present during the incident she reported to Washington; that
Tidwell was not troubled by the fact that the information sent to him failed to provide any
information whatsoever concerning Kurtycz’s version of the events in question; and that OHL
disparately enforced its solicitation policy against Kurtycz in that it failed to enforce its
solicitation policy over an extended period before and after the union organizing campaign.
OHL on brief argues that Kurtycz was aware of OHL’s prohibition of solicitation on
working time; that Kurtycz denies that any solicitation occurred; that none of the individuals who
allegedly sold various products had been repeatedly warned to stop; that the vast majority of the
testimony regarding solicitation occurred before White’s late summer 2009 decision that there
would be no more selling of anything on campus; that there is no indication that supervisors and
managers were aware of the solicitation after the policy change; that Kurtycz, who had
repeatedly been warned to stop soliciting, was on notice that with her final warning she was
subject to termination before OHL ever knew of her union sympathies; that Eason was shown
leniency because he was using a cell phone to check on his father’s failing health; that under
Wright Line, supra, General Counsel has not made a prima facie case in that engaging in union
solicitation in violation of an employer’s lawful solicitation policy is not a protected activity; that
Lowery was not involved in Kurtycz’s discharge; that there is no evidence that Tidwell was
aware of Kurtycz’ hand billing outside OHL on March 1, 2010; that there is no evidence of a
motivational link or nexus between any protected activity by Kurtycz and the adverse
employment action; that OHL has also proven that it would have terminated Kurtycz despite her
union activity in that Kurtycz willfully violated a policy, after being warned that further
violations could result in termination; that Kurtycz is the only employee who solicited in a
manner that triggered employee complaints to management; and that the distinction between the
other employees who received nondisciplinary reminder letters when they solicited for the Union
and Kurtycz was that Kurtycz had repeatedly been warned and continued to violate the policy,
and, therefore, the level of discipline was related to the willful disobedience, rather than the
nature of the solicitation.
In my opinion, Tidwell could not have been acting in good faith when he gave his
approval of the termination of Kurtycz since what he allegedly relied on, R. Exh. 19, raises a
number of questions which should have been resolved before proceeding if OHL was really
relying on anything other than its knowledge, gained by Lowery, of Kurtycz’s support of the
Union. General Counsel points out that this package does not include a statement from Kurtycz.
It is worse than that in that the package does not indicate whether Kurtycz admitted or denied the
allegations. It is as if it did not matter whether she admitted or denied the charges.21 In reading

20 The transcript and exhibit refers to one employee, Eason.
21 It is noted that Young’s cover memorandum to Tidwell indicates that Kurtycz denied that
she sold anything out on campus. Also, in the final warning, which was included in the package
Continued
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the statements of manager Washington and supervisor Pope and the two employees’ statements
one is struck by the shortcomings of the statements. Washington indicates that she met with
Kurtycz regarding the alleged solicitation for the Union. Washington’s statement goes to great
lengths to indicate what she and Cousino told Kurtycz during their meeting with her in March 1,
2010 but indicates nothing regarding what Kurtycz told them about her guilt or innocence. While
Washington’s statement indicates that Moore told her that Kurtycz asked employees for their
phone number and address, Moore’s statement does not even mention this. [Indeed, although
obviously Tidwell could not have known this in March 2010, when she subsequently testified at
the trial herein Moore was asked by one of OHL’s attorneys whether Kurtycz was asking for
addresses or anything like that, and Moore testified that Kurtycz “told us the Union card had all
the information that they needed for the name, the address, and phone number. She said fill that
out and vote for the Union,” (Tr. 593). Kurtycz allegedly asking several employees “for their
phone number and address so that a USW rep could contact them” (Washington’s “3/2/2010”
statement included in the package to Tidwell, R. Exh. 19) appears to be at best a figment of
Washington’s imagination or at worst a fabrication.] And while Moore thought it was important
enough to indicate in her statement that Kurtycz tried to get employees to go to Union meetings,
there is no mention of this in Washington’s statement regarding what Moore told her about what
Kurtycz did. Additionally, while Moore’s statement indicates “Every day Mrs. Kurtycz would
talk to the employees about voting for the Union. She would have the Union cards in her pocket
trying to get people to fill them out and also get them to go to the Union meeting” Washington’s
statement appears to refer to only what allegedly occurred on March 1, 2010. The same is true of
the statements of supervisor Pope and employee Crawford regarding what allegedly occurred and
what Crawford allegedly told Pope. According to Pope’s statement, Crawford told him that she
“had observed … [Kurtycz] talking to several employees at the table where … [Kurtycz] was
stuffing the cards into envelopes. [Kurtycz] … was telling them about the Union and trying to
get them to sign cards. [Crawford] … stated that she was not in the group but was close enough
to hear what was being said.” Contrast this with Crawford’s statement, which reads as follows:
& other OHL Employees @ 2:15 p [m] today (03-01-2010) & asked i[f] we were voting
for the union, did we read the material she had given out the day before. We replied ‘no.’
_________________________
of documents sent to Tidwell, it is indicated that Kurtycz claimed no knowledge of any cooler.
This is not a substitute, however, for knowing whether Kurtycz denied of admitted the
allegations of what allegedly occurred on March 1, 2010. Indeed, it highlights the fact that in
those two instances it was indicated whether Kurtycz admitted the charges and, with respect to
the alleged soliciting for the Union, it was not necessary for Tidwell, for some unexplained
reason, to know whether Kurtycz admitted the allegations. It is noted that Washington testified
that while Kurtycz at the March 1, 2010 meeting with Washington and Cousino denied harassing
employees on the floor, Kurtycz did not deny asking people for names and addresses and to sign
union cards; that Cousino testified that Kurtycz did not deny the allegations at the March 1, 2010
meeting and Kurtycz thought it was okay to engage in that activity; and that Kurtycz testified
that when Washington told her at the March 1. 2010 meeting that two people gave management
statements that she was soliciting on the floor, forcing people to sign a Union card, she told
Washington that it never happened. It would have been out of character for Kurtycz not to deny
the March 1, 2010 allegations. As Washington advised Tidwell, Kurtycz denied selling food, and
until she was presented with the cooler full of food she did not own up to doing this.
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She then asked if we woul[d] like to give our address and n[?] for the union to contact us.
We replied ‘no’ and walked aw[ay]. [R. Exh. 19 with emphasis added]
Crawford does not, in her statement, indicate that she was not in the group but was close enough
to hear what was being said. According to Crawford’s statement, it is just the opposite. With her
use of the word “we,” Crawford was including herself in the group. Also, while Crawford
indicates that Kurtycz gave the employees material to read about the Union the day before March
1, 2010 (That would have been on Sunday February 28, 2010.) Pope’s statement does not
mention the materials. While Crawford’s statement alleges that Kurtycz asked Crawford and
others for their address and “n[umber]” for the Union to contact them, Pope’s statement does not
mention this either. As noted, Pope’s statement indicates that Crawford observed Kurtycz talking
to several employees at the table where Kurtycz was stuffing the cards into envelopes.
Crawford’s statement does not mention the table and the stuffing. Crawford testified at the trial
herein that when Kurtycz approached her she was in the middle of the floor preparing her cart to
go pick and she was not where there is a table. (Of course Tidwell on March 2, 2010 was not in a
position to know how Crawford testified at the trial herein months later.) Tidwell testified, that
when Young sent him a final warning with details about a following incident, termination was
being considered; that Young, in sending R. Exh. 19 to him, was implicitly recommending that
he approve Kurtycz’s termination; and that, as Tidwell testified, “I rely on my local HR
professional staff to conduct the investigation and make the recommendation” (Tr. 1089).
According to Tidwell, he was approving Young’s implicit recommendation to terminate Kurtycz.
According to Young, she was not consulted nor did she make any recommendation as to what
discipline should be imposed on Kurtycz in March 2010.
Regarding Moore’s testimony, as noted above, it conflicts with the statement of
Washington. Also, it conflicts with the testimony of Washington with respect to the same point,
namely, whether Kurtycz asked employees for their phone number and address. Additionally,
there is a conflict with respect to whether Moore told Washington who Kurtycz gave the card to
on March 1, 2010, with Moore testifying that she told Washington the employee was Evette and
Washington testifying that Moore did not mention Evette Gonzalez’s name. And while Moore’s
statement reads in part “Everyday Mrs. Kurts would talk to the employees about voting for the
Union. She would have the union cards in her pocket trying to get people to fill them out …,”
Moore testified at the trial herein that she did not see Kurtycz with a union card before March 1.
2010. Then there are the major conflicts between Moore’s testimony and the testimony of
Lashunda Hill, as set forth above and below.
With respect to the testimony of Lashunda Hill, as noted above she testified that on one
occasion when she was with Moore, she saw Kurtycz hand union cards out in the cluster in that
Kurtycz “walked up to both of us and handed - - gave us union cards and asked us to sign them”
(Tr. 638); that this occurred on a Monday and it was “the last time she [Kurtycz] did it” (Ibid.);
that “the last time was the same week maybe within … [7] days of it [when Kurtycz was no
longer at Ozburn]” (Id. at 639). Moore’s testimony contradicts Hill’s testimony in that Moore
testified that the only employee she saw Kurtycz give a union card to was Evette. Moore never
even mentioned Kurtycz offering her a union card or Kurtycz offering Hill a union card in her,
Moore’s, presence. As noted above, on cross-examination Lashunda Hill testified that Kurtycz
tried to get her and Moore, when they were together, to sign union authorization cards around
March 1, 2009, shortly before Kurtycz was terminated; that March 1, 2010, which was Kurtycz’s
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last day on the clock working in the HP department, was the day Kurtycz tried to get her and
Moore to sign a union card; that on March 1, 2010 she, Kurtycz, and Moore could have been
within an arm’s length of each other; that she has never taken a union card from Kurtycz; and
that she did not observe Kurtycz approaching Moore and offering her a card prior to March 1,
2010. Moore did not corroborate any of Hill’s testimony. Indeed, Moore’s testimony contradicts
all of Hill’s testimony set forth above in this paragraph.
And regarding the testimony of Crawford, in addition to the conflicts in her statement and
Pope’s statement, as described above, Crawford’s testimony does not corroborate Pope’s
statement in that, as noted above, when Crawford took the stand at the trial herein, she testified
that when Kurtycz approached her she was in the middle of the floor preparing her cart to go
pick and she was not where there is a table. Crawford did testify that when she first came to work
she saw Kurtycz over in the corner in the cluster area talking to other employees about the
Union. However, Crawford did not testify that Kurtycz was at a table where she was stuffing
cards into envelopes. And finally, while Crawford testified that there was nothing in the original
statement, except the word “Me” that does not appear on the document received in evidence at
the trial herein as R. Exh. 10, this is not the case.22
Under 9(c)(1)(A) of the Act a labor organization acting in employees’ behalf may file a
representation petition if it is shown that a “substantial number” of employees wish to be
represented for collective bargaining purposes. If such a showing is made, a Board election will
be held. The Board has adopted an administrative rule that 30 percent of the employees in the
involved unit constitute a “substantial number.”
The Union’s Petition for Certification, which was filed “9/25/2009”, indicates that the
petition, GC Exh. 1(f), is supported by 30 percent or more of the employees in the unit.
By Regional Director’s Decision in Case 26-RC-8596, dated October 28, 2009, GC Exh.
1(g), the holding of an election was directed on a date and at a time and place to be specified in a
subsequent notice. The Regional Director’s Decision and Direction of Election also directed that
within 7 days of October 28, 2009 OHL must submit to the Regional office an election eligibility
list containing the full names and addresses of the eligible voters which may be used to
communicate with them to ensure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote. The Decision went on to
indicate that the Regional Director would make the list available to all parties to the election and
failure to comply with this requirement would be grounds for setting aside the election whenever
proper objections are filed.
To get a decision directing an election, the Union would have had to make its showing
that 30 percent or more of the employees in the involved unit indicated that they wished to be
represented by the Union. Normally this is done with union authorization cards signed by
employees in the involved unit.

22 As noted above, this cannot be correct in that even with “Me” added the first sentence is
not complete. Also, it appears that four of the words at the end of lines (identified in the above
quote with brackets) were not copied fully so that whatever appears at the end of those four lines
are not complete words.
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There is no showing that OHL did not provide the list of employees and their addresses
within 7 days of October 28, 2009.
It is understandable that on March 1, 2010 supporters of the Union like Jerry Smith (and
Kurtycz after she was sent home on March 1, 2010) would be hand billing and encouraging
employees to vote in the upcoming election on March 16, 2010. It is not readily understandable
why Kurtycz would be seeking signed union authorization cards on March 1, 2010 when the
Union had already made the requisite showing to the Board’s Region Director before October
28, 2009 that 30 percent or more of the employees in the involved unit wished to be represented
by the Union. It is not readily understandable why Kurtycz would be asking employees for
information on March 1, 2010 so that the Union could contact the employees when the Union
would have already had this information approximately a week after October 28, 2009.23
Normally one can expect some minor inconsistencies in the testimony and evidence of
multiple witnesses regarding an occurrence(s). Here, however, the contradictions are numerous
and they involve material issues of fact. In view of this, it is my opinion that the evidence
alleging that Kurtycz was soliciting for the Union on March 1, 2010 before she was sent home is
a fabrication.24 I credit the testimony of Kurtycz. I do not credit the testimony or the
documentary evidence which was given and introduced, respectively, by OHL and its witnesses
on this matter. Early on March 1, 2010 Lowery, during his interrogation of her, determined that
Kurtycz supported the Union. Hours later OHL took advantage of the fact that Kurtycz had
previously received a final warning. OHL kept Kurtycz from voting for the Union in the
upcoming Board election.
Kurtycz supported the Union. OHL through Lowery knew this. A fabrication was utilized
to justify the termination of Kurtycz. Evidence of anti-union animus is abundant throughout the
record made in this case. And a nexus has been shown between the discovery by Lowery of
Kurtycz’s support of the Union, and her unjustified termination just hours after the discovery.
OHL has not shown that it had a substantial business justification for Kurtycz’s
termination. Indeed, it relied on a fabrication. Consequently, OHL has not rebutted the prima
facie showing of General Counsel. OHL has not met its burden of showing that it would have
terminated Kurtycz absent her support of the Union. And, as concluded above, in my opinion,
Tidwell was not acting in good faith when he approved the (implicit?) recommendation (As
noted above, Young denies that she made this recommendation.) to terminate Kurtycz.

23 To one who might argue that perhaps Kurtycz was attempting to obtain contact
information for those recently hired employees who might not be on the employee list turned
over to the Union, it need only be noted that Moore, who testified that she had been working for
OHL for about 1 year before she testified on July 16, 2010 at the trial herein, and Lashunda Hill,
who testified that she had been working for OHL for 16 months when she testified at the trial
herein on July 16, 2010, should have been on the list which was turned over to the Union.
Crawford did not testify regarding how long she had been working for OHL, and Johnson and
Gonzalez did not testify at the trial herein.
24 As noted above, Kurtycz did handbill on March 1, 2010 outside OHL’s facility for the
Union after she was sent home by Washington and Cousino.
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OHL violated the Act as alleged in paragraphs 11(c) and (d) of the complaint.
III. The Objections
As noted above, the Union has withdrawn a number of its objections. Those which
remain read as follows:
The Employer engaged in the following acts of misconduct for which the election should
be set aside:
1. Engaged in surveillance of Union activities and meetings;
2. Interrogated employees concerning their activities on behalf of the Union;
3. Requesting that employees form a grievance committee in order to convince them to
discontinue their support for the union;
4. Issuing written warnings and suspensions to employees in retaliation for their union
activities;
5. Conducted captive audience meetings in small groups within the 24-hour period prior
to the Election;
8. Forbidding employees from maintaining union literature in the employees’ break
room, and destroying union literature;
9. Solicited grievances from employees and impliedly promising to remedy them;
10. Enforced plant rules more stringently against union supporters;
11. Formed and assisted employee opposition to the Union;
12. Threatened and coerced employees because of their union activities and the threat of
dire consequences if the employees selected the Union;
13. Created the impression of futility of selecting the Union;
14. Threatened employees with plant closure, reduction of work or relocation if the
Union won the election;
15. Promise of improved conditions if the Union is rejected;
16. Promulgated, modified and disparately enforced a no-solicitation rule and placed
unlawful limitations on the no-solicitation rule;
19. The Employer by its agents, officers and representatives terminated union supporter
Glorina Kurtycz;
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20. Discipline employees who participated and gave testimony in proceedings covered by
The NLRA;
21. Offered to establish an in-plant committee as an alternative to the Union;
24. The Employer used agents, officers, representatives as an observer in a board election
which clearly is a violation of the NLRA;
25. The Employer station[ed] agents, officers and representatives in the parking lot and
the door entrance to the polling area and engaged with the employees prior to voting;
26. The Employer by its agents, officers and representatives offered inducements to
employees to persuade them to vote against the Union;
27. The use of supervisor(s) as election observer;
28. Prohibiting employees from distributing union literature in non working areas
outside the employer’s facility;
30. Soliciting union supporters to quit their employment;
31. Electioneering at and near the polling places;
32. Advised employees that they would be permanently and forever replaced and
will not be eligible for food stamps when the union calls them out on strike;
33. Making benefits and policy changes during the critical period;
34. Employer by its agents, officers and representatives held one on one meetings behind
closed doors interrogating employees about their union sympathies and support;
36. Employer by its agents, officers and representatives calling employees at home
interrogating and threatening jobs loss and retaliation because of their union
activities or support;
37. Employer by its agents, officers and representatives telling employees they couldn’t
wear union buttons or shirts in their department.
The Union filed a brief in support of its objections. In its entirety it reads as follows:
United Steelworkers (USW) Petitioner and Charging Party herein files this limited
Brief in support of the Objections filed in this matter.
The undersigned filed 39 objections to the March 16, 2010, election. Objections 6,
7, 17, 18, 22, 23, 29, 35, 38, and 39 were withdrawn. Fifteen have substantially been
sustained by ALJ George Carson II’s May 20, 2010 decision ALJD (ATL-12-10) or will
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be sustained should the General Counsel prevail on its ULPs alleged in the instant matter.
Proven ULPs sustain the USW’s objections and warrant the direction of a new election.
As a brief sample of the strength of the complaint allegations, please review the
evidence in Union Exhibit 22, where it was proven the OHL Manager Roy Ewing,
contrary to his testimony, admitted in an email to an OHL Vice President that he met
with employees and confirmed his illegal surveillance, interrogation and threats (Union
Exhibit 22).
USW submits that the evidence is overwhelming as to the numerous ULP
violations that warrant setting aside and directing a new election.
Additionally and importantly, the Employer’s use of Dani Bowers, HR
Coordinator as an Election Observer, warrants setting aside the election, First Student,
Inc., 355 NLRB No. 78 (August 9, 2010). USW established by its exhibits 1 thru 22 that
Bowers was a ‘Manager,’ ‘supervisor’ directly engaged in hiring, I-9s, orientation,
discipline, drug testing, employee testing, and monetary job offers. Bowers signed in the
approval box, which is reserve for managers and supervisors for all job changes, leaves of
absence, FMLA, rate of pay increases, I-9 forms, participates in disciplinary meetings,
and also enforces the policy of OHL (Union Exhibits 1-22). OHL Hierarchy Chart, memo
directing ‘Managers’ to attend a Union avoidance meeting, lists Bowers as ‘Manager,’
[Union Exhibits 1(a)-1(d)]. Bowers was even involved in employment termination
[Union Exhibit 2(a)]; Bowers has an office next to the Vice President of OHL, with her
own direct telephone line.
Bowers is clearly a ‘Manager,’ ‘supervisor,’ ‘Personnel Officer’ so closely
aligned with Management … that her presence alone interferes with the laboratory
conditions and constitutes objectionable conduct, and [is] in violation of the NLRA,
thereby warranting setting aside the election.
Objection 1
The Union called Carlos Shipp to testify about objection 1, which as noted above, reads
as follows: “[e]ngaged in surveillance of Union activities and meetings.” Shipp testified that
during the critical period between when the petition for an election was filed and the March 16,
2010 election he had a meeting with Ewing, who had called him into his office; that Ewing asked
him if he was for the company or for the Union; that his meeting with the manager of Remington
occurred at the end of September; that he told Ewing that he was with the company; that Ewing
then showed him three or four pictures of the Union hall and asked him if he knew where this
place was; that he told Ewing no, and when Ewing asked “are you sure” (Tr, 1215) he said no;
that Ewing then said “[w]ell we’re just trying to find out when this voting comes up, we wanted
to know what side you was on” (Ibid.); that he was still on probation so he told Ewing he was for
the company; that Ewing said “[w]ell, okay, little brother, that’s all I wanted to know. You can
go back out on the floor” (Ibid.); that the pictures were of the exterior of the building which
shows a sign which indicates that it is the union hall; that one of the pictures showed a street
sign; and that he had been to the union hall prior to Ewing showing him the pictures and so he
knew what Ewing was talking about.
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On cross-examination Shipp testified that he gave an affidavit to the Board on March 12,
2010; that in his affidavit he indicates “[m]y meeting with Ewing happened either one or two
weeks after I attended my first Union meeting on September 1st” (Tr. 1218); that in his affidavit
he did not indicate that Ewing asked him if he was with the Union or with the company; that he
indicated in his affidavit that Ewing asked him if he was involved with any union activity and he
told Ewing no; that when he testified earlier in this proceeding he did not testify about his
conversation with Ewing; that when he met with Ewing no one else was present; and that the
color photos were rectangular, something like 4 inches by 8 inches.
On redirect Shipp testified that around the time of his meeting with Ewing, other
employees had daily one-on-one meetings with Ewing; that he had never met with Ewing before
this; and that he was sure that his meeting with Ewing occurred at the end of September because
he had been told they had filed a petition to go to election.
Ewing testified that he a manager at the Remington account; that Shipp was in his group;
that “no” (Tr. 1305) in September 2009 he did not call Shipp into the office and ask him if he
was for the Union or for the company; that he did not show Shipp any pictures of the Union hall;
and that he has never had any pictures of the Union hall. Ewing then answered “No, sir” to the
following question of one of the OHL attorneys: “Did you ever call him into an office for any
reason to talk about the Union.” (Id. at 1306)
On cross-examination Ewing gave the following testimony:
Q Did you have a meeting with Mr. Shipp at your facility?
A No, sir.
Q Have you met with any of your employees individually about the Union campaign?
A No, sir. [Tr. 1307]
During the subsequent cross-examination of White, U. Exh. 22 was received. It reads as
follows:
From: Ewing, Roy
Sent: Wednesday, October 21, 2009 9:24 AM
To: White, Karen
Subject: RE: Remington
The three individuals are: Vanessa Elis, Carlos Shipp and probably Joe Taylor
Vanessa Ellis husband is Jeff (over at St. Jude – questionable vote)
Carlos Ship has 4 months with us (previous job was Union – Still unsure about OHL as a
whole)
Joe Taylor (states will not vote for OHL or Union)
I will personally continue to meet with these individuals daily to filter any or all concerns
as we approach a voting date.
Standby for follow ups:
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….
Roy Ewing
OHL’s only objection to the introduction of this document was that it was outside the scope of
the direct of White. On the face of the document it shows that it was also GC Exh. 85 in Case
No. 26-CA-23497 & 23539, which, as noted above, are cases decided by Judge Carson, GC Exh.
2 herein. White did not testify that she never received this email, and Ewing was not recalled by
OHL, subsequent to the receipt of this exhibit, to deny that he sent this email.
OHL on brief contends that Shipp’s testimony contradicts his affidavit to the Board with
respect to when his alleged conversation with Shipp happened; that if the alleged conversation
with Ewing happened in the first two weeks of September 2009, it would not have been within
the critical period; that Ewing’s allege inquiry, namely was Shipp with the Union or with the
company is not in his Board affidavit; that Ewing denied that this conversation took place; and
that even if alleged conversation took place, it occurred outside the critical period, and it is
hardly a basis on its own and even cumulatively with other incidents to overturn the election.
Ewing is not a credible witness. His testimony is not credited. The testimony of Shipp is
credited. On redirect Shipp testified that he was sure that his one on one meeting with Ewing
occurred in late September, 2009 because he had been told that the Union had filed a petition to
go to election. Ewing’s above-described October 21, 2009 email to White indicates that he was
meeting with named individuals, including Shipp, daily and he would continue to meet with
them as they approached a voting date. It is not clear to me why the Union indicated that Shipp’s
testimony was offered in support of objection 1. None of Shipp’s testimony supports the
allegation that OHL “[e]ngaged in surveillance of Union activities and meetings.” Pictures of the
outside of a Union hall, with nothing else, do not prove this. Shipp’s testimony should have been
offered in support of objection 34, namely. “[e]mployer by its agents, officers and
representatives held one on one meetings behind closed doors interrogation employees about
their union sympathies and support.” Objection 1 is overruled.
Objection 2
As noted above objection 2 alleges that OHL “[i]nterrogated employees concerning their
activities on behalf of the Union.” No evidence was introduced in this proceeding about any
interrogation of an employee “concerning their activities on behalf of the Union.” (Emphasis
added)25 As concluded above, employees were unlawfully interrogated about their support and

25 Evidence was introduced in Judge Carson’s consolidated proceeding on this issue. But
exceptions have been filed to Judge Carson’s decision and it is presently pending before the
Board. As here pertinent, an exhibit from Judge Carson’s consolidated proceedings was received
in the proceeding at hand, GC Exh. 32. It relates to the September 25, 2009 Ewing/Carolyn Jones
confrontation and its aftermath. The exhibit does not itself speak to that alleged unlawful
interrogation on September 25, 2009, which Ewing denied. Notwithstanding the fact that I do not
believe that Ewing is a credible witness, Judge Carson’s findings regarding that alleged unlawful
interrogation are now pending on exceptions before the Board. Also, as noted above, in my
Continued
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another employee’s support of the Union. But this is not an interrogation about their activities on
behalf of the Union. Objection 2 is overruled.
Objections 3, 15, and 21
The Union indicated that it called Sandra Hayes to testify regarding Objections 3, 15, and
21. As noted above, objection 3 reads as follows: “[r]equesting that employees form a grievance
committee in order to convince them to discontinue their support for the Union.” Objection 15
reads “[p]romise of improved conditions if the Union is rejected.” And objection 21 reads as
follows: “[o]ffered to establish an in-plant committee as an alternative for the Union.” OHL
employee Hayes testified that prior to the March 16, 2010 Board election she attended a
roundtable meeting; that after a meeting in Water Pik about the Union in which she was “kind of
outspoken” (Tr. 1284), a man, she could not remember his name but he allegedly was from
Nashville, asked her “what is the problem and why would we want a meeting for somebody to
speak for us” (Ibid.); that she told the man “because they don’t listen when we speak” (Ibid.);
that the man then “suggested that maybe after the Union, after all this, why don’t I try to get
together a committee that we can sit down once a month and let them know our grievances, our
problems, or issues on that sort” (Ibid.); that the unidentified man allegedly from Nashville came
back to Memphis and spoke to her, asking her how it was since Dye had been transferred to
another account; that she told the man that the employees had other issues; that she has
participated in quite a few roundtable meetings and White and Young were there every time; and
that Bowers was there also.
On cross-examination, Hayes testified that she attended three roundtable meetings before
they were stopped in 2009; that she talked to the guy allegedly from Nashville around the time of
the election; that the guy did not say “why don’t we have a committee” but rather the guy said
“why didn’t I, Sandra Hayes, why don’t I get a committee together and once a month we meet
and address our issues and concerns with management” (Tr. 1290); that she never formed a
committee to do that; that she did not know why Dye transferred; that at the roundtable meetings
Bowers explained the “things we can do and what we couldn’t do, the reason why we were
having the roundtable meeting” (Id. at 1291); that it has been too long to quote what Bowers
said; that she could not “quote exactly what she [Bowers] said. I’m not a tape recorder” (Id. at
1292); that with respect to when she started attending the roundtable meetings, “I cannot give
you the date. All I know is I attended three of them and it was within that year and that’s that”
(Ibid.); that she was only aware of three roundtable meetings; that the roundtable meetings were
not held quarterly but rather once a month; that her manager would tell her when she was
supposed to go to the roundtable meetings; that the topics discussed at the roundtable meetings
had to do with how the company was doing and what accounts were being opened up; that the
roundtable meetings were about business issues rather than talking about her concerns; that
topics discussed at the roundtable meetings included where did they want to have a picnic if they
wanted to have the picnic, where did they want to have the Christmas dinner, and where were
they going to have their Thanksgiving dinner; that she was supposed to go back to her work
group and get this information from them; and that this was done to give the employees input.
_________________________
opinion, on November 17, 2009 Ewing interrogated Rayford about her union sympathies and not
activities on behalf of the Union.
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On redirect Hayes testified that another issue that came up at a roundtable meeting was
PTO (paid time off) and Young told Rivers that she would look into it; that when the Union
came up at these meetings the company would shut the discussion off real quick and move on to
another subject; that the unidentified man allegedly from Nashville26 did not speak to her after a
roundtable meeting but rather after a meeting in Water Pik about the Union where the company
distributed literature, she asked supervisor Phillips if she had to keep attending these meetings
when it was not fair that the company was getting its point across and she could not get her
points across, Randall told her she did because he said so, and she told him that was very
unprofessional; and that during a roundtable meeting Young said that “some of our contractors or
whatever will pull out because they’re not going to accept a Union being in the building” (Tr.
1298).
On recross, Hayes testified that White and Phil Smith also said that our customers would
pull out because they did not want to work with the Union; that she could not give the month that
White made this statement at one of the meetings about the Union that the company held; that
she did not tell the Union representative about the statements regarding the loss of customers;
that she did not remember the day or month of Young’s or Phil Smith’s statement regarding the
loss of customers and she would not give an approximation; and that some lady, she did not
know the lady’s name, said “like HP, Fed Ex will pull out.” (Tr. 1304). Since it was not
established that the unidentified lady was a supervisor or manager, this testimony is hearsay and
could be nothing more than speculation on the part of another employee. Although not
specifically indicated by the Union when it called Hayes to testify at the trial herein, it appears
that the alleged statements regarding customers could be included in the “dire consequences” and
“reduction of work” language in objections 12 and 14, respectively.
Young testified that the roundtable meetings were created 4 to 5 years ago as a way for
the employees to have a voice in how OHL does different things like creating different training
programs; that the meetings are held once a quarter and different employees are rotated so that
OHL gets different ideas; and that she never, nor has she witnessed any other member of
management announce to employees that customers would leave if the Union came in.
Phil Smith testified that he never, nor has he witnessed any other member of management
announce to employees that customers would leave if the Union came in.
White testified that she has never announced to employees that OHL customers would
leave if the Union came in; that she has never heard any member of management make any type
of similar comment; and that she has never made any type of similar comment.
OHL on brief contends no unfair labor practice charge was ever filed alleging a request
for the forming of a grievance committee; and that based on Hayes’ testimony, there is no basis
that any “grievance committee” was ever suggested, formed or utilized.

26 The Union did not lay a foundation as to why Hayes believed that the unidentified man
was from Nashville. Also, there is no evidence with respect to what position this unidentified
man allegedly from Nashville holds if indeed he even works for OHL.
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The Union made no attempt on the record made herein to prove exactly who the
unidentified man who allegedly was from Nashville is. This is a threshold issue. Without
knowing who the individual is, how can the issue of OHL’s role be resolved? The Union has the
burden of proof. It has not met that burden. Objection 3 is overruled. Hayes offered no testimony
about a “[p]romise of improved conditions if the Union is rejected” or “[o]ffered to establish an
in-plant committee as an alternative to the Union.” No evidence was introduced in this
proceeding regarding these allegations. Accordingly, objections 15 and 21 are overruled. As
noted above, albeit the Union does not allege that Hayes’ testimony is offered in support of
objections 12 and 14, namely threats of “dire consequences,” and “reduction of work,”
respectively, it would appear that Hayes allegations that named members of management told
employees that customers would pull out because they did not want to work with a union might
be considered with respect to these objections. However, only Hayes testified about this. And
Hayes did not impress me as being a credible witness. Her attitude was that of a witness who
makes statements and does not believe that she should be subject to cross-examination to test the
accuracy and veracity of those statements. To the extent that Hayes testimony might refer to
objections 12 and 14, those objections are overruled.
Objection 4
Objection 4, as noted above, reads “[i]ssuing written warnings and suspensions to
employees in retaliation for their union activities.” Also as noted above, the complaint allegation
regarding Jennifer Smith is being dismissed. Accordingly, objection 4 is overruled.
Objection 5
Objection 5, as noted above, reads as follows: “[c]onducted captive audience meetings in
small group within the 24-hours period prior to the election.” OHL employee Anita Wells
testified that on March 16, 2010 she was getting off the clock about 4:15 or 4:20 p.m.; that as she
went to her car she noticed Young and Tidwell in a group of people sitting outside at a table
talking; that it was March 16, 2010; that it was the day prior to the election; that it was March 15,
2010; that she got in her car and as she left they were still talking; that she had wondered
whether they were going to go up the stairs and enter the building; that the group of about 10 that
Young and Tidwell were talking to were employees that she knew; that she did not know the last
names of the employees; that Amad, Chris, Mary, Peggy, Christine, and Earl were the names she
could remember of the employees who were in this group; and that “[a]ctually I didn’t hear
anything ….” (Tr. 1197) regarding what the group was talking about.
On cross-examination Wells testified that she worked in the HP account on March 15,
2010; that she worked the first shift, normally from 8 a.m. to 4:45 p.m.; that she knew Tidwell
because earlier on March 15, 2010 he came around and introduced himself to her; that on March
15, 2010 some of the employees were sitting down on the bench at the picnic table and some
were standing; that she came down the stairs and passed the group; that when she passed the
group she was 7 or 8 inches from them; that what the group was talking about “was just a lot of
conversation, asking questions, she was asking them if they had any questions and they were just
blurting out questions” (Tr. 1202); that on direct she testified that “[i]t was just a lot of
conversation” (Ibid.); and that she came in at 7 a.m. on March 15, 2010.
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Young testified that she and Tidwell were not speaking to a group of about 10 employees
on picnic tables outside the HP account at about 4:15 p.m. the afternoon before the election; that
she was informed about the 24-hour rule; that she followed that 24- hour rule; and that she had
absolutely no communication at all with employees in the last 24 hours.
OHL on brief argues that the Union did not produce any of the 10 employees at this
alleged captive audience meeting to corroborate Wells’ testimony; that Wells purports to be a
member of the Union’s plant organizing committee, GC Exh. 23; and that the vague testimony of
Wells, and her admission that she did not know what was being discussed at this alleged meeting
leads to the conclusion that this unproven allegation is meritless.
The burden of proof is on the Union. As noted above, Wells testified on direct that
“[a]ctually I didn’t hear anything ….” (Tr. 1197) regarding what the group was talking about.
Then on cross Wells testified that on direct she testified that “[i]t was just a lot of conversation”
(Id. at 1202) When the sole witness called by the Union to testify about an alleged occurrence
testifies on direct that she did not hear anything, then on cross testifies that she testified on direct
that it was just a lot of conversation (which is not what she testified on direct), and during her
cross testifies that “she (apparently Young) was asking them if they had any questions and they
were just blurting out questions” (Tr. 1202), it is obvious that the witness has changed her
testimony on cross-examination and is saying that she said something on direct, which she did
not, to accommodate her change in testimony on cross. Wells is not a reliable witness. Her
testimony is not credited. Objection 5 is overruled.
Objection 13
Objection 13, as noted above, reads “[c]reated the impression of futility of selecting the
Union.” On March 1, 2010, as concluded above, Lowery did just that during his unlawful
interrogation of Kurtycz. Objection 13 is sustained. It is noted that it has not been shown that any
employee other than Kurtycz, who did not work at OHL’s facility after March 1, 2010 and did
not vote in the election, heard Lowery’s statement regarding the futility of selecting the Union.
Objection 16
Objection 16, as noted above, reads “[p]romulgated, modified and disparately enforced a
no-solicitation rule and placed unlawful limitations on the no-solicitation rule.”
OHL on brief argues, with respect to Kurtycz’s termination, that the majority of
testimony regarding solicitation occurred before White’s late August or early September 2009
decision that there would be no more selling of anything on campus, and there is no indication
that supervisors and managers were aware of the solicitation after the policy change; that the
policy was changed because an employee became ill after purchasing food from Kurtycz; that the
ban on selling all products anywhere on campus was more restrictive than the normal solicitation
policy, which applies only to working hours and areas; and that this ban was conveyed to all
employees in pre-shift meetings.
It is noted that there is no specific unfair labor practice complaint allegation regarding
OHL’s distribution/solicitation policy and any changes to this policy. With respect to any
argument that Kurtycz’s termination demonstrates the disparate treatment with respect to this
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policy, as noted above, in my opinion Kurtycz’s termination had nothing to do with the alleged
disparate enforcement of OHL’s distribution/solicitation policy on March 1, 2010. It has not
been demonstrated that OHL “[p]romulgated, modified and disparately enforced a no-solicitation
rule and placed unlawful limitations on the no-solicitation rule.” Objection 16 is overruled.
Objection 19
Objection 19, as noted above, reads “[t]he Employer by its agents, officers and
representatives terminated union supporter Glorina Kurtycz.” Also, as concluded above, OHL
violated the Act when it unlawfully terminated Kurtycz. Accordingly, objection 19 is sustained.
Objection 20
Objection 20, as noted above, reads “[d]iscipline employees who participated and gave
testimony in proceedings covered by the NLRA.” Also as noted above, the complaint allegation
regarding Jennifer Smith is being dismissed. Accordingly, objection 20 is overruled.
Objections 24 and 27
Objection 24, as noted above, reads “[t]he employer used agents, officers, representatives
as an observer in a board election which is clearly a violation of the NLRA.” And objection 27
reads: “[t]he use of supervisor(s) as election observer.” During the unfair labor practice portion
of the trial herein, Rayford testified that while she had not been called to Young’s office since
November 10, 2009, she went, without being called, to HR, namely to Dani Bowers’ office to
replace the broken clip for her I.D. badge.; that Bowers is a HR coordinator; and that Bowers is
in an office right across from Young. When called by Petitioner during the objections portion of
the trial herein, Rayford gave the following testimony:
Q (BY MR. BRANDON): Do you know Dani Bowers?
A Yes
Q Did she happen to be at that table observing when you went in?
A Oh yes, when we went to vote, she was sitting at the table with Nichole Nesso.
Q Did you associate her more or less you have the ILO employees or management team?
A Management. [Tr. 1140 – 1141]
When called by the Union, Bowers testified that she was an observer for OHL at the
March 16, 2001 Board election; that at the time of the election, and shortly before, her title was
HR Coordinator, and her job duties were hire orientation, processing the paperwork, explaining
policies, processing other paperwork, being available when her boss needed her, and working in
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the safety areas; that she does not have authority to hire or fire27, she does not hire or fire, she
does not participate in discipline, she does not approve leave or terminations, employees do not
think of her as the boss, she is paid hourly and she is not salaried, she punches a time clock, her
immediate supervisor is Young, she has an office phone, she gets an hour for lunch since she
works from 8 a.m. to 5 p.m. which is 15 minutes more than the workers on the floor who work
from 8 a.m. to 4:45 p.m.; that she has the ability to go into Unitime; that she only makes job
offers at Young’s direction; that she sometimes schedules meetings in that she switches off with
others and each person organizes meetings; that each building has their own safety committee
and as part of the safety committee they arrange meetings; that the roundtable meetings are held
with employees out of each account, and the employees relay information from other employees
to White and Young; that she does not head the roundtable meetings but rather she facilitates the
meeting; that she facilitated the meeting mentioned in U, Exh, 1(A) and Young was the head
spokesperson at that meeting28; that workers in the facility do not attend monthly HR
Coordinator meetings; that she is the only HR Coordinator for OHL’s Memphis operation; that
the Coordinator meetings are held by teleconference call and on the computer, and she has not
met the Coordinators who apparently are listed on U. Exh.1(B) in person; that she does not
attend mandatory management meetings, and her name appears on U. Exh. 1(C) only because
she is on the “Cc” general distribution list; that OHL has contests among all HR Coordinators
and production workers or hourly workers in the warehouse do not participate in it, U. Exh.
1(D); that she processes all of the paperwork for new hire orientation and she conducts the
orientation training; that as of July 2009 she initiates drug testing, and she “as well as several
other managers and supervisors” (Tr. 1245) is certified to do drug screening; that she did the
training for Unitime so that she can help with new managers and supervisors navigate through
Unitime; that if somebody is short hours, she has to get with the supervisor or manager and get
them to send an email to payroll requesting it; that she creates all of the job postings; that
normally Young makes pay offers and job offers and if she does it, is by the directive of Young
only; that she, like all the employees, supervisors, and managers gets paid for mileage when they
have to travel some distance; that as HR Coordinator she can request checks only if there is a
discrepancy in the employee’s pay and the manager and the supervisors have done all their due
diligence to prove it; that she can submit a check request to pay for vendors and things like that
during OHL employee functions; that if an employee asks her to check the record to see whether
they received a shift differential, she can pull up a copy of their pay stub and show them if
they’ve gotten it, tell them to go to their manager or supervisor to get the problem resolved if
they did not get it, and she is part of the request process in that she is the person that the check
would be coming to and she is responsible for making sure it gets to the employee29; that she

27 The Union introduced U. Exh. 2(A) apparently to show that Bowers fires or approves
terminations. A careful reading of this series of emails shows just the opposite; Bowers was
directed by Director of Field Services Jamie Logel to, as the HR Coordinator, do the paperwork
terminating the involved employee and forward the paperwork.
28 It is noted that this September 22, 2009 email from Bowers went to supervisors and
managers and not to employees on the floor.
29 In a January 8, 2010 email, U. Exh. 12, Bowers advised Darron Savage as follows:
I have another employee, Stacy Swan …, who did not get her shift diff on her pay
checks. I’ve pulled up her pay stubs in Ceridian and she is correct. I pulled her up in
Unitime and saw she wasn’t set for 2nd shift, I corrected this. She has 307.01 on reg hours
and 85.20 OT hrs. Can we get this added to her next check please?
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cannot correct it once she pulls it up if it is wrong, she cannot make any changes to it in that it is
a PDF document; that new hires are given a profile test, the test is scored through a web site, and
she does not score the test30; that she is part of the recruiting team and she does whatever she is
told to do as part of the HR team; and that her role in the review process is to process the
paperwork after the manager conducts the review, the employee signs it, and it is turned into HR.
The Union introduced a number of exhibits which demonstrate that Bowers was not
exercising independent judgment but rather was following OHL dictates, i.e. U. Exh 2I dealing
with felony charges ending assignments. These exhibits, many of which were stipulated in, have
been reviewed. It is not necessary to describe them in detail. See U. Exhs. 3(A) (pay for time
spent in orientation), 4 (almost all of which are OHL personnel change forms Bowers signed on
the “FIELD HR” line and not the “MANAGER” line, and the remainder were not signed by
Bowers as a manager or a supervisor), 5 (a series of emails dealing with postings none of which
documents show that Bowers was acting as a supervisor or manager), 6 (a number of “Form I-9
Employment Eligibility Verification” forms signed by Bowers as “HR Coordinator” and an IRS
Form 8850 signed by Bowers as “HR”), 7 (various documents signed by Bowers as HR
Coordinator, none of which are signed by Bowers as a manager or supervisor, and none of which
contain any indication that Bowers was acting as a manager or supervisor ), 10 (emails dealing
with the severe weather policy, none of which indicate that Bowers was a manager or supervisor
or acting as either), 11 (an email from Bowers to whoever is in charge of the involved account
relaying an emergency telephone message for a named individual), 14 (an email from White to a
number of people including Young and Bowers, both of whom are in HR, indicating, inter alia,
that White wanted to hire about 15 people from the Vietnamese and Hispanic population), 15 (a
number of emails indicating when meetings are going to be held, none of which emails indicate
that Bowers is a manager or supervisor or she was acting as either), 16 (emails dealing with
receipts, none of which emails indicate that Bowers is a manager or supervisor or she was acting
as either), 17 (an email from Washington with Bowers cc’ed, which email deals with an
argument between two employees, and which email does not indicate that Bowers is a manager
or supervisor or she was acting as either), 18 (a series of emails about various topics, none of
which emails indicate that Bowers is a manager or supervisor or she was acting as either), 20 (an
“OHL Memphis Organizational Chart, OHL Memphis Campus 8/19/2009” which lists “Dani
Bowers, HR Coordinator” under “Van Young HR Manager” and which indicates that everyone
else on the chart is a manager or supervisor), and 21 (a 5510 “Cell Phone List” which list 24
“Manager’s” telephone numbers, including that of Bowers, and the telephone numbers of the
“GUARDSHACK” and “SECURITY”). Bowers did sign a document on the line designated
“Signature of Manager” but she qualified her signature with “HR,” the document is a
“PERSONAL LEAVE OF ABSENCE REQUEST FORM” which indicates that the involved
employee had not received a medical release for full duty yet, and the following is printed at the
bottom of the document: “Upon completion of this form [by the employee], submit it to your
local HR or the Corporate Benefits Department.” U. Exh. 3.
When questioned by one of OHL’s attorneys, Bowers testified that in conducting
orientation she does what Young does when Young conducts orientations; that she does not have
the ability to change what’s contained in that orientation presentation, and she was told that she

30 In a January 21, 2010 email, U. Exh. 13, Bowers advised Young and White as follows: “I
scored Mr. Soni’s profile on an Ops Mgr level. He did not do well.”
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should follow the presentation that Young gave when she watched her; that 80 percent of her
time is spent processing paperwork; that since she is an hourly employee she receives overtime
pay sometimes; that she punches a time clock and her hours go into the same Unitime system
that all other employees’ time goes into; that supervisors and managers do not punch a time
clock; that customer service representatives also have office phones that they use and they are
part of the unit that voted in the Board election; that she has received attendance points and two
verbal warnings over the years; that attendance points are not given to managers and supervisors;
that she makes job offers only if Young cannot make the call herself or if a hiring manager
cannot make the call, she is directed to make the call, in which case she is conveying the offer;
that she schedules round table and safety meetings after ascertaining from managers and
supervisors when is the best time so as to minimize the effect on the involved accounts of some
of the employees having to attend the meetings; that she takes minutes at these meetings; that
Young tells her when to schedule a roundtable meeting; that she does not attend management
meetings and she has never been to White’s staff meetings; that other types of employees have
contests, i.e. the forklift operators; that OHL has a policy that it does not hire anyone who has
any felony conviction in the last 7 years; that she has no discretion regarding employing an
individual whose social security number comes back as a no match; that the “I scored … profile”
in U. Exh, 13 refers to putting his position in so that the individual would receive a score; that
regarding U. Exh 12, Darren Savage works in payroll, she changed it from 1st to 2nd shift in the
Unitime system because the individual was a new hire, she enters the new hires information into
the Unitime system, and she originally made a data entry mistake; that regarding U. Exh. 18 she
did not have the ability to decide whether the involved individuals would receive attendance
points or be excused absences; that regarding U. Exh 7, she used to fill out employment
verifications as HR representative but now the corporate office handles it all; that Young tells her
to prepare job postings and Young sends her the job descriptions; that internal employment
applications are submitted to her as a HR representative but it is the hiring manager who decides
who gets the job; that regarding U. Exh 4, she signs personnel change forms to indicate that it
has been received by HR and placed in the personnel file, and that while she signs on a line
designated “FIELD HR” in an area of the form designated as “APPROVAL SIGNATURES” she
does not sign on the “SUPERVISOR” or “MANAGER” lines, she does not approve personnel
change decisions, and her signature signifies only that HR has processed the document; that
regarding U. Exh. 3, her signature notes that HR was signing off on it rather than a manager, the
employee was out on FMLA, he was very sick, he ran out of FMLA so Young instructed him to
submit the application for personal leave of absence so he wouldn’t have a gap in time and, in
turn, get occurrence points; that she received specific instructions from Young with respect to the
employee, Rory Martin, and how to submit this paperwork; that regarding U. Exh. 2(D), Young,
who was out of town, called and instructed her to go sit in on a meeting only to inform the others
about their benefits; that everyone hired at OHL Memphis has to be interviewed by a manager
three times; and that she never (a) lays off employees, (b) recalls them, (c) assigns employees to
do particular tasks, or (d) direct any other employees.
On further questioning by the Union representative, Bowers testified that regarding U.
Exh 2I she is required to let Young know about incidents like this, a felony, and Young directed
her to contact Katrina and advise her that the individual’s assignment was over; that regarding U.
Exh. 3, she did not approve it but she signed the application for it, it is sent up to the corporate
office, and a board approves whether or not he is granted the leave; that regarding U. Exh. 4, she
processes the paperwork and she does not make the decision; that U. Exh. 21, the “5510 Cell
Phone List,” is not posted for all employees but rather it is a list that one of the managers sent out
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to all the managers and supervisors so they would have phone numbers for contact; that she is
not sure when this list went out but her name is on it because managers and supervisors have her
cell number so that they can reach her when she is not at her desk; and that she has never had any
training in union avoidance.
Hayes testified that Bowers attended roundtable meetings along with White and Young;
and that she was surprised to see Bowers sitting in the voting area at the March 16, 2010 Board
election because “[s]he’s part of management.” (Tr. 1289) Other than seeing Bowers at
roundtable meetings, Hayes did not provide any basis for her testimony that Bowers is part of
management.
Young testified that Bowers does not have the authority to terminate anyone on her own;
and that Bowers cannot and she does not ever make an effective recommendation to terminate an
employee.
As noted above, the Union on brief contends, as here pertinent, as follows:
Additionally and importantly, the Employer’s use of Dani Bowers, HR Coordinator as an
Election Observer, warrants setting aside the election, First Student, Inc., 355 NLRB No.
78 (August 9, 2010). ….
Bowers is clearly a ‘Manager,’ ‘supervisor,’ ‘Personnel Officer’ so closely
aligned with Management … that her presence alone interferes with the laboratory
conditions and constitutes objectionable conduct, and [is] in violation of the NLRA,
thereby warranting setting aside the election.
OHL on brief argues that a couple of the Union witnesses made self-serving remarks that
they associated Bowers with “management” but their self-serving assertions belie all of the
evidence taken in connection with Bowers duties; that as shown by the testimony and exhibits
received in this proceeding, Bowers does not possess nor does she show indicia of possessing
any management or supervisory authority; that Bowers is an hourly employee who processes
paperwork, and acts at the direction of the HR manager or other supervisors or managers; that
Bowers is not a supervisory employee; that there are vast differences between the election
observer involved in First Student, Inc., supra and Bowers; that the Board in First Student, Inc.
emphasized the fact that the trainer in that case was “the only representative of the employer with
whom applicants deal during the application and training process, and therefore they could
reasonably believe that she plays a role in deciding whether they are ultimately hired as drivers
after they complete the CDL [commercial driver’s license] Program”; that here the HR
preliminary phone interview is only the first step in the hiring process in that a prospective
employee is interviewed by a hiring manager who then recommends, if OHL wants to continue
the process, that the applicant interview with an area manager, White, or someone else at that
level; that all applicants are interviewed three times, with two of the interviews occurring at the
management level; that with respect to duties, the trainer in First Student, Inc. (a) worked at a
company where drivers had to comply with stringent Federal requirements for CDLs, and (b)
administered the CDL testing on behalf of the state, and completed the statutorily-required
assessments of employees’ driving performance and records; that, therefore, the trainer in First
Student, Inc. was integral in judging job performance of employees; that the trainer in First
Student, Inc. sat in an enclosed office that she shared with a supervisor; that, therefore,
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understandably, the trainer in First Student, Inc. actually had the indicia of supervision, as
employees knew that the trainer’s assessment of their driving performance and records could
cost them their job; that Bowers has no similar indicia of supervision or power over hiring or
firing; that, therefore, Bowers is not a supervisor and was not disqualified as serving as an
observer; and that her presence as an observer is not a basis to overturn an election of this
magnitude of loss by the Union (180 votes against the Union and 119 votes for the Union).
The burden of proof regarding the assertion that Bowers is a supervisor is on the Union.
The Union did not meet its burden. All of the evidence of record points to the fact that (a)
Bowers is not a supervisor, and (b) as far as employees are concerned, especially those who
testified for the Union, there is no showing on this record that the employees were aware of any
indicia of supervisory power on the part of Bowers. Indeed, all of the evidence received in this
proceeding demonstrates that there was no indication to employees that Bowers possessed any
supervisory power whatsoever. For the above-described reasons given by OHL on brief, First
Student, Inc. is distinguishable from the situation at hand. It has not been shown that Bowers
could reasonably be viewed by employees as closely identified with management. In First
Student, Inc., the majority of the three member panel of the Board indicated that “[w]e note
particularly that … [the trainer] is in some instances the only representative of the Employer with
whom applicants deal during the application and training process and, therefore, they could
reasonably believe that she plays a role in deciding whether they are ultimately hired as drivers
after they complete the CDL program. Bower is not the only representative of OHL with whom
applicants deal during the application and training process. Indeed, she plays a minor HR
coordinator role and, in my opinion, there would be no reason whatsoever for employees to
reasonably believe that she plays a role in deciding whether they will be hired. Consequently,
objections 24 and 27 are overruled.
Objections 25 and 31
Rayford testified about objection 25, which - as noted above - alleges that “[t]he
Employer station[ed] agents, officers and representatives in the parking lot and the door entrance
to the polling area and engaged with the employees prior to voting.” Objection 31, as noted
above, reads: “[e]lectioneering at and near the polling places.” Rayford testified that on March
16, 2010, she and some other employees were in the waiting room of the 5510 Building and
some employees went out the door to go to vote; that when the door was opened she saw “White
standing out there talking to [employees] Alesha [Northly], Samantha, and James” (Tr. 1138);
that she did not know the last names of Samantha and James but both work in Fiskars; that she
estimated that this conversation between White and the named employees occurred about 25 to
30 feet from the entrance door to the building in which the voting was taking place; that
Cunningham, Herron, Julie Willow, and Carol Serrel were sitting in the break room (described
above as the waiting room) with her at the time; that it was her understanding that no supervisor
was supposed to be around that day; that supervisors Dye and Phillips were on the floor in Water
Pik before the employees went out on break; that “they” (Tr. 1140) came around with a sign that
told the employees that it was time to go and vote; and that no supervisor or manager told her
that it was time to go vote.
On cross-examination Rayford testified that when she saw White outside she and the
other named employees were sitting in the waiting room downstairs in the back of Building 5510
and not in the upstairs break room; that she was standing in the doorway when saw White was
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talking to the three employees in the parking lot; that she told the other employees in the room
with her “Carol White is standing out there talking to Alesha and sitting out there with James”
(Tr. 1142 with emphasis added); that she had the door open and she was not in a waiting room
but it is where the truck drivers “come in and sign in at the CSRs at the window” (Id. at 1143);
that the three employees were going to the poll and White, who was walking toward Alesha with
a folder in her hand, said something to them in the parking lot and they stopped; that she could
not hear what was said; that her break was ending, she left to go to work, and she did not know
where White was going; that the entrance to the door to the polling place was about 100 feet
from the doorway she was standing in; that the polling place was in Building 5540 and the three
employees had to walk through the parking lot to get to Building 5540; that she did not speak
with Northly, Samantha or James about this conversation or whether they were going to vote that
day; that the Fiskars group that was following the three employees said they were going to the
voting poll and she assumed that the whole department was going to vote; that this occurred
about 10 a.m; that White has an office in the 5510 Building, and she normally parks her car in
the involved parking lot; that it was her understanding that no supervisor or manager should have
been anywhere on campus that day; that Dye had already transferred out of Water Pik as of the
day of the election; and that all of the employees with her in the room in the 5510 Building when
she saw White in the parking were in Water Pik and at that time they had not voted yet.
Cunningham testified that on March 16, 2010 she witnessed White talking to three
employees, Alesha, James, and Samantha, near where they were going to vote; that Rayford and
Herron were with her when she saw this; that Rayford was standing in the door and she called
her and Herron to the door; that the employees were from Fiskars; that at the time White was
talking to the three employees they were 20 feet from where they had to go for the polling; that
the door to the outside from the room they were in was open; and that she and the others in the
room had not voted yet.
On cross-examination Cunningham testified that she stopped being employed by OHL
about August 18, 2010; that to get to the polling place in Building 5540 the employees had to go
up some outside steps and then they went into the back entrance of the building which faced the
involved parking lot; that the employees then went into a break room in Building 5540; that the
distance between Buildings 5510 and Building 5540 is about the widths of 20 cars; that she had
no idea what White was saying; that she did not know whether White approached the employees
or the employees approached White; that there were no other employees walking around where
the three employees were in the parking lot with White; that she did not see a whole group of
employees walking toward the polling place; that employees and sometimes managers and
supervisors use that parking lot; that trucks come through that parking lot because there is a
loading dock on the back of Building 5510; and that White was closer to Building 5540 than
Building 5510.
OHL employee Denise Martin testified that she works in the Fiskars account; and that on
March 16, 2010 when she went to vote around 11:30 a.m. or 12 noon and was returning from
voting the following occurred:
Q (BY MR. BANDON) Can you tell us what else you observed on that particular day?
A Yes, when we was [sic] leaving out from voting, I seen [sic] Karen White riding in the
parking lot as we exit the building that we had to vote from.
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Q Did you see Karen White with anybody engaged with voters in the parking lot?
A Yes. Some of the other coworkers from the Fiskars Department was [sic] walking to
vote and they proceeded toward her car, a Durango, and they was [sic] - - she was talking
to them. It was Jerry Smith. The young lady, she don’t [sic] - - Samantha Ridgport and it
[sic] was another young lady.
….
A I can’t think of her name.
Q That wouldn’t happen to be Alesha, would it?
(BY MR. BODZY): Objection, leading.
ADMIN. JUDGE WEST: Overruled. Did you answer that?
….
A Yes it was her. [Tr. 1171 – 1172]
Martin also testified that when she was on her way to vote with some other employees she saw
Jim Steele on a rise three to four feet from the door to the building they were entering to vote and
they had to pass him to get to the door.
On cross-examination Martin testified that Steele was on a ride, something you pick
orders with; that Steele did not say anything; that Steele works in Building 5540; that the
equipment that Steele had was sometimes used to move things between buildings; that they were
approximately 18 to 20 feet from Steele when he first pulled up; that when she first saw White’s
red Durango White was driving very slow in the parking lot; that some of her coworkers who
were going to vote talked with White; that White was still in her car when she was talking to the
employees; that White was closer to Building 5540 than Building 5510; that White’s car was not
in a parking space and the employees were gathered at her door while she was in the car; and that
she did not hear any of the conversation.
On redirect Martin testified that her supervisor Jim Windish told the employees that it
was time for them to go and vote; and that they also came around with a sign that it was time to
go and vote. On recross Martin testified that Windish told them before the sign came around; and
that in the morning meeting on March 16, 2010 Windish told them what time they could go and
vote and make sure you all go and vote.
OHL employee Linda Cotton testified that on March 16, 2010 while she was walking
across the parking lot to go to Building 5540 she saw Steele and White in different areas of the
parking lot; that she did not see Steele with any employees; that White was talking with
Samantha Bridgeport, James Griffin and Alesha Northly; that at the time she worked in Fiskars
and her supervisor, Windish, walked through the work area and he released her to vote; and that
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the workers with signs indicating that it was time to go vote came through her area just before
Windish.
On cross-examination Cotton testified that that it was between 11 a.m. and 12 noon when
she was crossing the parking lot to go and vote; that she estimated that it is about 50 yards from
the 5510 Building to the 5540 Building; that Steele was on a pack mule 20 feet from her when
she first saw him; that Steele had parked the pack mule and he was getting off; that she did not
see him talk to anybody and he did not say anything to her; that in Building 5540 there is an
office door for management and another door for employees and they are pretty close together;
that she saw White driving her truck, a red Durango, in the parking lot; that she was about 20
feet from White; that Bridgeport, Griffin and Northly were at White’s vehicle; that she did not
see White get out of her vehicle; that she could not hear anything White and the three employees
were saying; that she did not know who approached whom as between the three employees and
White; that when she returned from voting, White’s vehicle was not there; that she was in
Building 5540 for no longer than 10 minutes; that when she was going to vote Denise and
Carolyn Jones were walking with her; and that she never saw White get out of her vehicle.
Herron testified that on March 16, 2010 she saw “White standing on the parking lot
talking to some workers” (Tr. 1207); that she could not hear what was said; that the workers who
White was talking with were James, Alesha, and Samantha; that “[y]es to the question “[h]ad
you guys [Herron had testified that she was with Rayford and Cunningham.] voted yet at that
particular time”; that she did not remember the exact time she was released to go vote; and that
when she saw White in the parking lot she was on a 15 minute break and at the end of the break
White was still out there.
On cross-examination, Herron testified that when she saw White she was in the doorway
of the entrance the truckers come through in the 5510 Building; that at the time she was on the
morning break, which is from 10 a.m. to 10:15 a.m.; that Rayford called her attention to White in
the parking lot; that she did not see White’s red Dodge Durango; that White was on her feet; that
she was about 25 feet from White; that White and the three employees were closer than 25 feet to
the 5540 Building where the voting occurred; that she did not know if the employees approached
White or White approached the three employees; and that at the end of her break White and the
three employees were still out there.
Steele testified that he is operations supervisor for two accounts in the 5540 Building;
that he did not park equipment on the day of the Board election near the employee entrance to
Building 5540; and that he did not think he was at that location at that time, and he was not there,
namely the location where the employees were walking in.
Phil Smith testified that the distance between the back door of the 5510 Building and the
back door of the 5540 Building where employees were walking to vote is 540 feet; and that he
knows this because it has been measured a time or two in that OHL has a lot of trucks staging in
that area.
White testified that on the day of the election she did not approach nor did she have any
conversations with employees in the parking lot between the 5510 and the 5540 Buildings; that
one employee stopped her and asked her if she could vote early and she told the employee to go
ahead and vote; that one employee stopped her in the middle of the road; that that was the only
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one; that she thought it was one of the leads but she could not remember the individual’s name;
that on the day of the election she did not have any conversations with Alesha, Northly, James or
Samantha from the Fiskars department in the parking lot; that on the day of the election she was
in the conference room all day; and that when she had the conversation with this one employee
she was walking to her conference room, she thought with Young.
OHL on brief argues that the Union’s witnesses could not testify as to the circumstances
of this alleged conversation, or what was said, or what type of conduct was involved; that the
Union did not call any of the three employees who allegedly had a conversation with White in
the parking lot between Buildings 5510 and 5540 on March 16, 2010; that these two buildings
are 540 feet apart; that the Union’s witnesses gave conflicting testimony regarding the time, the
distance, and whether White was standing in the parking lot or sitting in her vehicle in the
parking lot; that none of the Union’s witnesses claimed (a) to have heard what was allegedly
said, or (b) to know whom initiated the alleged conversation; that the testimony concerning
Steele was unpersuasive and contradictory; and that it is not alleged that White or Steele were
near the people waiting in line to vote in Building 5540 nor near the break room which had been
secured by Board personnel.
With respect to objections 25 and 31, at least one of the Union’s witnesses testified that it
was her understanding that managers and supervisors were not supposed to be anywhere on
campus (on OHL’s property) on March 16, 2010. If that were the law, then one might not
wonder about the approach taken here regarding objections 25 and 31. That is not the law. The
testimony of the Union’s witnesses is contradictory. Even if is assumed arguendo that White was
in the parking lot the same time as some employees on March 16, 2010, no offering is made with
respect to who initiated the alleged conversation and what was allegedly said. If the Union
wanted to prove more than the alleged presence of White in the parking lot on March 16, 2010 at
the time employees were voting in Building 5540, then it could have called, subpoenaing them if
necessary, the three named employees who allegedly had a conversation with White. The Union
did not. Contrary to the allegation in objection 25, the Union’s witnesses do not allege that Steele
“engaged with the employees prior to voting.” No witness called by the Union testified that
Steele said anything to the employees prior to voting. Regarding objection 31, without knowing
what White allegedly said, it is not clear how one could determine, even if the testimony is
credited, that she or Steele, who is not alleged to have said anything, could be electioneering. It
is not alleged that either one of them engaged in nonverbal conduct, i.e. carrying a sign which
might constitute electioneering. Objections 25 and 31 are overruled.
Objection 33
Objection 33, as noted above, reads: “[m]aking benefits and policy changes during the
critical period.” Wells testified that she has worked at OHL for 12 years; that the open
enrollment period for signing up for health care has always been in October and November as far
as she could remember; that two or three years ago they changed it to June and it has been in
June ever since then; and that in November 2009 it was changed back to January.
On cross-examination Wells testified that when she gets materials which describe
benefits the materials just indicate OHL and they are not limited to OHL Memphis; and that she
has no knowledge about whether or not the benefits are specific to OHL Memphis or whether
they are company wide.
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Young testified that she does not decide when open enrollment occurs but rather this is a
decision made at corporate level and it applies company wide for all 5.000 employees.
OHL on brief argues that it is not clear what point the Union is trying to make with this
objection; that any decisions about the open enrollment period are not made by Memphis
management; that it is a decision at the corporate level for the 5,000 employees of OHL
company wide; and that, therefore, whatever point the Union was trying to make, there was no
showing that any change in the open enrollment period had any connection with union activity in
Memphis.
The Union has not shown that OHL made benefits and policy changes during the critical
period in response to the union campaign. Accordingly, objection 33 is overruled.
Objection 34
Although not specifically cited by the Union when it called Shipp to testify, it is noted
that objection 34 reads as follows: “[e]mployer by its agents, officers and representatives held
one on one meetings behind closed doors interrogating employees about their union sympathies
and support.” As noted above, U. Exh. 22 reads as follows:
From: Ewing, Roy
Sent: Wednesday, October 21, 2009 9:24 AM
To: White, Karen
Subject: RE: Remington
The three individuals are: Vanessa Elis, Carlos Shipp and probably Joe Taylor
Vanessa Ellis husband is Jeff (over at St. Jude – questionable vote)
Carlos Ship has 4 months with us (previous job was Union – Still unsure about OHL as a
whole)
Joe Taylor (states will not vote for OHL or Union)
I will personally continue to meet with these individuals daily to filter any or all concerns
as we approach a voting date.
Standby for follow ups:
….
Roy Ewing
Shipp’s testimony about his one on one meeting with Ewing is set forth above. It is credited. As
concluded above, Ewing is not a credible witness and his testimony is not credited. Objection 34
is sustained.
Objection 36
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Objection 36, as noted above, reads “[e]mployer by its agents, officers and
representatives calling employees at home interrogating and threatening jobs loss and retaliation
because of their union activities or support.”
As noted above, OHL violated the Act as alleged in paragraph 9 of the complaint when
Ewing on November 17, 2009 interrogated Rayford about her union sympathies, told her that he
did not want her to work in Remington anymore, and threatened her if she discussed their
conversation with other employees. Objection 36 is sustained.
Toward the end of the last day of the trial herein the following occurred:
MR. BRANDON: Judge, some of my objections are based on an ALJ decision as
well as some ULPs that are still outstanding.
ADMIN. JUDGE WEST: I’m sorry, you want to repeat that?
MR. BRANDON: Some of my objections, some have already been decided by
the ALJ Carson.
ADMIN. JUDGE WEST: So some of your objections refer to some - -
MR. BRANDON: Yes, sir.
ADMIN. JUDGE WEST: by Judge Carson?
MR. BRANDON: If I’m all over the place that’s why because there’s no need to
discuss it if Judge Carson already did. [Tr. 1227 – 1228]
On brief, OHL argues that Judge Carson’s recommended findings in Cases 26-CA-
23497, 23539, and 23576 are presently pending review by the Board pursuant to OHL’s
exceptions, and thus are not final findings by the Board; that reliance on them would be improper
in deciding to use them as a basis to overturn the election; that none of the alleged violations of
discrimination under Section 8(a)(3) in the prior case occurred during the critical period (from
September 25, 2009 when the petition for an election was filed to March 16, 2010 when the
election was held); that the only violations found by Judge Carson during the critical period were
Section 8(a)(1) violations based on (a) Phil Smith on October 15 and 16, 2009 removing union
literature from a break room prior to the end of the break periods of the employees, (b) Young at
an October 9, 2009 meeting with employees at Remington, threatening that employees would be
replaced in the event of a strike and that negotiations for a contract would take ten years, and (c)
Ewing on September 25, 2009 interrogating employees about their union activities and
interfering with the distribution of literature at the Remington Warehouse; that the September 25,
2009 allegation of an unfair labor practice should not be considered within the critical period
because OHL would not have had notice of the petition until some time after September 25,
2009; that the unfair labor practice charges found by Judge Carson to have occurred during the
critical period were stale by the time of the election in that the last Section 8(a)(1) violation
found by Judge Carson was in mid-October 2009, approximately 5 months before the election;
that following the unfair labor practice charges filed in the fall of 2009, the Board’s Regional
Director postponed the election, only to have the Union request in February 2010 that it proceed,
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presumably because alleged violations in September and October 2009 would no longer “taint”
the election; that the Board has overruled objections that are based upon relatively minor
allegations that affect a small number of employees in a large bargaining unit and are remote in
time to the election, as is the case with the instant proceeding, PPG Aerospace Industries, 355
NLRB No. 18 (March 4, 2010), Bally’s Park Place, Inc., 352 NLRB 316 (2008), and Bon
Appetit Management Co., 334 NLRB 1042, 1043 (2001); and that here given the overwhelming
margin of the vote, the alleged violations involving a handful of employees, many of which were
5 months before the election, could not have affected the outcome of the election or reasonably
tended to interfere with free choice in the election.
Objections 8, 9, 10, 11, 26, 28, 30, 32, and 37
No evidence was introduced in this proceeding regarding these nine above-described
objections. The parties were advised that (a) the CD with the transcript and exhibits, GC Exh. 3,
for Judge Carson’s decision was received in this proceeding as just that, and (b) if they wanted
me to consider any exhibits from Judge Carson’s consolidated proceeding, they would have to
mark the exhibit for identification at the trial herein and I would rule on it. (Tr. 21 and 403-404)
This procedure was followed. As pointed out by OHL on brief, exceptions have been filed to
Judge Carson’s decision. Findings in that proceeding will not be final until the Board rules on the
exceptions. Objections 8, 9, 10, 11, 26, 28, 30, 32, and 37 are overruled.
Analysis of the Sustained Objections
As pointed out by the Board in Trump Plaza Hotel & Casino, 352 NLRB 628, 628-629
(2008) “[i]t is well settled that ‘[r]epresentation elections are not lightly set aside.’ Safeway, Inc.,
338 NLRB 525 (2002)” and
The Board’s longstanding rule in assessing election objections is that the
objecting party must show not only that prohibited conduct occurred but also that, viewed
objectively, it interfered with voters’ exercise of free choice. See e.g. Frito Lay, Inc., 341
NLRB 515, 515 (2004); Picoma Industries 269 NLRB 498, 499 (1989). The party
seeking to set aside an election also bears a heavier burden where the vote margin is
large. Avis Rent-A-Car System, 280 NLRB 580, 581-582 (1986)
And as pointed out by the Board in PPG Aerospace Industries, 355 NLRB No. 18, slip op. at 4
(2010),
Under established precedent, the Board sets aside an election and directs a new
one when unfair labor practice violations have occurred during the critical period, unless
the violations are de minimis. In determining whether misconduct is de minimis, the
Board considers such factors as the number of violations, their severity, the extent of their
dissemination, the number of employees affected, the size of the bargaining unit, the
closeness of the election, and the violations’ proximity to the election. Bon Appetit Mgt.
Co., 334 NLRB 1042, 1044 (2001).
As noted above, four of the Union’s objections have been sustained. Taking the last
objection sustained first, objection 36, it is noted that Rayford, as directed by Ewing, did not
discuss their November 17, 2009 conversation with any other employee. Should OHL benefit
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from Rayford’s adherence to Ewing’s unlawful dictate? That is not the issue at hand. Rather, the
issue is whether this unlawful conducted affected the outcome of the election. Since Rayford did
not discuss this matter with other employees, the unlawful activity could only have affected one
vote, namely Rayford’s. With 119 employees voting for the Union, 180 employees voting
against the Union, and 11 challenged ballots, Rayford’s one vote would not affect the outcome of
the election.
Objection 34 also involves Ewing. As pointed out in U. Exh 22, there were three
employees involved in the meetings with Ewing. Others may have had meetings with Ewing but
that was not made a matter of record. Only one of the employees testified, namely Shipp. His
meeting with Ewing occurred in Ewing’s office. Ewing is the manager of Remington. At the
time, Shipp was a probationary employee. As concluded above, Ewing engaged in unlawful
conduct during his meeting with Shipp. But there is no showing that Shipp told other OHL
employees before the election of Ewing’s unlawful conduct. Additionally, the other two
employees named in U. Exh 22, Vanessa Ellis and Joe Taylor, were not called as witnesses at the
trial in this proceeding, so there is no specific showing that Ewing also engaged in unlawful
conduct in his meetings with them. It is noted that U. Ex. 22, Ewing’s October 21, 2009 email to
White, does indicate in part “Joe Taylor (states will not vote for OHL or Union).” Whether this
information was obtained by Ewing through an unlawful interrogation or Taylor volunteered it to
Ewing or a third party who then told Ewing was not made a matter of the record herein. In view
of the vote in the election, as described above, the Shipp ballot would not affect the outcome of
the election. And if Ewing engaged in unlawful conduct with Ellis and Taylor, which was not
established on the record made herein, their two votes would not affect the outcome of the
election.
With respect to objection 13, Kurtycz was the only OHL employee who heard manager
Lowery on the work floor create the impression of futility of selecting the Union. Hours later she
was removed from the OHL’s work floor never to return to the work floor again before the
election. Kurtycz did not testify that she discussed Lowery’s statement with any other OHL
employee before the election. Kurtycz did not vote in the election since she was terminated on
March 2, 2010. If she had voted in the Board election, Kurtycz’s vote would not have affected
the outcome of the election.
In my opinion, sustained objection 19, the unlawful termination of Kurtycz, warrants
setting aside the election. The election was held on March 16, 2010. Kurtycz, who worked in HP,
was terminated on March 2, 2010. During the intervening 2-week period between Kurtycz’s
unlawful termination and the election, OHL’ management used Kurtycz’s unlawful termination
to obfuscate to employees, in at least one account other than the one Kurtycz worked in, what
was permissible with respect to soliciting in support of the Union on OHL’s property. The
termination itself was a serious violation, especially when one considers that it was a total
fabrication. But OHL added insult to injury by using the unlawful termination to undermine
employee support of the Union. As noted above, Hayes testified that she works in the Water Pik
department; that she is familiar with Ozburn’s policy on soliciting or sales activity by employees
because in a company meeting which was held about February or March 2010 (It would to have
been held on or after March 2, 2010.) about the Union, Ozburn Area Manager Phillip Smith told
the employees that an employee was terminated for selling; that employees are not supposed to
sell, solicit or do anything on Company property; that she attended a meeting of Water Pik
employees at which Phillip Smith said that employees could not sell or solicit on Company
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property, and there would be no soliciting on work time on the property; that Smith cited the
termination of a lady who worked in HP (Hewlett Packard) and who sold food; that Ozburn Vice
President White and Young were at this meeting; and that Ozburn’s policy is that the employees
cannot distribute or solicit anywhere on OHL property. Hayes impressed me as being a credible
witness. I credit her testimony. OHL itself made sure that news of Kurtycz’s termination was
spread among employees within the 2 weeks before the election.31 While the other sustained
objections could be describe as de minimis, objection 19, which involves a violation of Section
8(a)(3) and (1) of the Act within 2 weeks of the election, is not de minimis.32 Since OHL
destroyed the laboratory conditions of the March 16, 2010 Board election, the election will be set
aside.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
Conclusions of Law
1. By interrogating employees about the union activities and sympathies of other
employees, by soliciting an employee to persuade another employee to abandon the employee’s
support for the union, by interrogating an employee about the employee’s union sympathies, by
telling an employee that she would not work overtime in a specific account because of her union
activities, and by threatening an employee with unspecified reprisal if the employee discussed
with other employees the conversation between the employee and an OHL manager, Ozburn-
Hessey Logistics, LLC has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. By unlawfully terminating Glorina Kurtycz and by refusing to allow Rayford to work
overtime in the Remington department Ozburn-Hessey Logistics, LLC violated Section 8(a) (1)
and (3) of the Act.
3. Respondent has not violated the Act in any other manner.

31 It is noted that on cross-examination by OHL Jennifer Smith testified that she guessed that
employees are not supposed to be selling things on the floor; that she did not recall a meeting
where the supervisors or managers explained that employees are not to be selling things on the
floor; that she does not know anything about the solicitation policy at Ozburn; that she did not
recall the solicitation policy being covered in any meetings with employees that she attended;
and that she did not know whether Ozburn has a solicitation policy which prohibits people from
selling things on the floor. While Jennifer Smith worked in HP between 2006 and 2007, she was
working in the Brown Halco department of OHL between March 2 and 16, 2010. Her testimony
on cross-examination demonstrates only than that Phil Smith, White, and Young may not have
made their Kurtycz termination presentation to the Brown Halco employees or that when they
did Jennifer Smith was not present for some reason.
32 Although not specifically alleged as an objection by the Union, refusing to allow Rayford
to work overtime in the Remington department during the critical period is also a violation of
Section 8(a) (1) and (3) of the Act.
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4. By the conduct cited by the Petitioner in its Objections, the Respondent has prevented
the holding of a fair election, and such conduct warrants setting aside the election conducted on
March 16, 2010, in Case 26-RC-8596.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Glorina Kurtycz, it must offer her
reinstatement, and it must make her whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of a 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). Interest on amounts due to
Glorina Kurtycz shall be compounded on a daily basis as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
The Respondent having discriminatorily denied Glenora Rayford overtime in the Rayford
department, it must offer her overtime in the Remington department as it did before November
17, 2009, and it must make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from November 17, 2009 to date of a proper offer of overtime, 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). Interest on amounts due to Glenora Rayford shall be
compounded on a daily basis as prescribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010).
I shall order the Respondent to remove from its records any reference to the unlawful
termination of Glorina Kurtycz, and in writing notify her that the unlawful termination will not be
used as a basis for father personnel action.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended33
ORDER
The Respondent, Ozburn-Hessey Logistics, LLC of Memphis, Tennessee, its officers,
agents, successors, and assigns, shall
1. Cease and desist from:

33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(a) Discharging or otherwise discriminating against any employee for supporting United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO, CLC or any other union.
(b) Coercively interrogating any employee about union support or union activities.
(c) Soliciting an employee to persuade another employee to abandon the employee’s
support for the Union.
(d) Unlawfully telling an employee that she would not work overtime in a specific
account because of her union activities.
(e) Threatening an employee with unspecified reprisal if the employee discussed with
other employees the conversation between the employee and an OHL manager
(f) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order, offer Glorina Kurtycz full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Glorina Kurtycz whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against her in any way.
(d) Within 14 days from the date of the Board’s Order, offer Glenora Rayford overtime in
the Remington department to the extent that overtime is available for employees who are
assigned to accounts other than the Remington department.
(e) Make Glenora Rayford whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy section of the
decision.
(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 designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
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(g) Within 14 days after service by the Region, post at its facility in Memphis, Tennessee,
copies of the attached notice marked “Appendix.”34 Copies of the notice, on forms provided by
the Regional Director for Region 26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since November 8, 2009.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
IT IS FURTHER RECOMMENDED that Petitioner’s Objections 13, 19, 34 and 36 to the
election held by the Board in Case 26-RC-8596 be sustained; that the results of said election be
set aside; and that said case be remanded to the Regional Director for Region 26 for the
purpose of conducting a new election at such time as he deems the circumstances permit the
free choice of a bargaining representative and with a notice of election consistent with the
findings herein.
Dated, Washington, D.C. December 27, 2010
____________________
John H. West
Administrative Law Judge

34 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for supporting United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers International Union, AFL-CIO, CLC or any other union.
WE WILL NOT coercively question you about union support or activities.
WE WILL NOT solicit you to persuade another employee to abandon the employee’s support for
the Union.
WE WILL NOT unlawfully tell you that you would not be allowed to work overtime in an
account other than the one you are assigned to because of your union activity.
WE WILL NOT threaten you with an unspecified reprisal if you discuss with other employees a
conversation between you and a manager
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order, offer Glorina Kurtycz full
reinstatement to her former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Glorina Kurtycz whole for any loss of earnings and other benefits resulting
from her discharge, less any net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Glorina Kurtycz, and WE WILL, within 3 days thereafter,
notify her in writing that this has been done and that the discharge will not be used against her in
any way.
JD(ATL)-30-10
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WE WILL, within 14 days from the date of the Board’s Order, offer Glenora Rayford overtime
in the Remington department to the extent that overtime is available for employees who are
assigned to accounts other than the Remington department.
WE WILL make Glenora Rayford whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her plus interest compounded daily.
Ozburn-Hessey Logistics, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
80 Monroe Avenue, The Brinkley Plaza Building, Suite 350
Memphis, Tennessee 38103-2416
Hours: 8 a.m. to 4:30 p.m.
901-544-0018.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 901-544-0011.