Pan-Oston Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 305 (N.L.R.B. 2001)

PAN-OSTON CO. 305
Pan-Oston Company and Sheet Metal Workers’ In-
ternational Association Local No. 433, AFL–
CIO. Case 26–CA–18679
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On March 29, 1999, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief, cross-
exceptions, and a brief in support of cross-exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions, ex-
cept as discussed below, and to adopt the recommended
Order as modified and set forth in full below.2
I. THE SUPERVISORY STATUS OF TODD HOLMES
The judge found that the Respondent, through Super-
visor Todd Holmes, violated Section 8(a)(1) by engaging
in surveillance, creating the impression of surveillance,
and interrogating an employee. The Respondent has
excepted to these findings on the basis that Holmes was
not a statutory supervisor within the meaning of Section
2(11) of the Act at the time the events relevant to this
proceeding occurred. We find merit in this exception.
In finding that Holmes was a supervisor during the
relevant period, the judge relied upon the following: (1)
Holmes’ testimony referring to himself as a supervisor;
(2) employee Douglas Springer’s testimony that Holmes
was a supervisor; and (3) evidence that employees at a
union meeting told the business agent that Holmes was a
supervisor. We find this evidence to be insufficient to
support the judge’s finding. An employee’s title alone
cannot establish whether that employee is a supervisor.
See Waterbed World, 286 NLRB 425, 426 (1987), enfd.
974 F.2d 1329 (1st Cir. 1992). Rather, the party who
asserts that an individual is a supervisor within the mean-
ing of Section 2(11) of the Act must prove that the indi-
vidual possesses at least one of the categories of author-
ity enumerated in that section, and that his or her exer-
cise of such authority requires the use of independent
judgment.3 Hausner Hard Chrome of KY, Inc., 326
NLRB 426 (1998).

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric, 335 NLRB 142 (2001).
The judge further relied on evidence that Holmes
signed an employee discipline form on the line desig-
nated for the supervisor. However, the record indicates
that the decision to discipline the employee was made by
Tom Staples, an admitted supervisor whose signature
also appears on the form, and that Holmes signed the
form merely as a witness.4 Because Holmes did not par-
ticipate in the decision to administer the discipline, we
find the judge’s reliance on this evidence to be mis-
placed.
We conclude that the General Counsel, who has the
burden in this case, has proffered no evidence that
Holmes possessed any of the indicia of a supervisor at
the time the relevant events took place. Although the
Respondent does not dispute that Holmes was a statutory
supervisor at the time of the hearing in December 1998,
we find no evidence to establish that Holmes was a su-
pervisor at the time he engaged in the alleged unlawful
conduct in early 1998. We therefore reverse the judge
and find that Holmes was not shown to be a statutory
supervisor when he engaged in conduct alleged to be a
violation of Section 8(a)(1).
II. THE AGENCY STATUS OF TODD HOLMES
Alternately, the judge found that if Holmes was not a
supervisor then “at the very least he had apparent super-
visory authority.” We interpret this to be a finding that
Holmes’ conduct is attributable to the Respondent be-
cause he acted with apparent authority when he engaged
in the alleged misconduct. Having reviewed the record,
we conclude that there is insufficient evidence to support
the judge’s finding, and accordingly, we reverse.
The Board applies the common law principles of
agency in determining whether an employee is acting
with apparent authority on behalf of the employer when
that employee makes a particular statement or takes a
particular action. Cooper Industries, 328 NLRB 145
(1999); Hausner Hard Chrome of KY, Inc., 326 NLRB at
428. Apparent authority results from a manifestation by
the principal to a third party that creates a reasonable
3 Sec. 2(11) of the Act defines a supervisor as any individual having
authority, in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with the forego-
ing the exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
4 Holmes’ testimony that he signed the form as a witness is undis-
puted.
336 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
belief that the principal has authorized the alleged agent
to perform the acts in question. Southern Bag Corp., 315
NLRB 725 (1994) (and cases cited therein). Either the
principal must intend to cause the third person to believe
the agent is authorized to act for him, or the principal
should realize that its conduct is likely to create such a
belief. Service Employees Local 87 (West Bay Mainte-
nance), 291 NLRB 82 (1988) (citing Restatement 2d,
Agency, § 27 (1958, Comment a)).
The Board’s test for determining whether an employee
is an agent of the employer is whether, under all of the
circumstances, employees would reasonably believe that
the employee in question was reflecting company policy
and speaking and acting for management. Waterbed
World, 286 NLRB at 426–427 (and cases cited therein).
The Board considers the position and duties of the em-
ployee in addition to the context in which the behavior
occurred. Jules V. Lane, 262 NLRB 118, 119 (1982).
The Board may find agency where the type of conduct
that is alleged to be unlawful is related to the duties of the
employee. For example, in Hausner Hard-Chrome of KY,
Inc., supra, the Board found that the heads of various de-
partments who regularly communicated management’s
production priorities to employees acted as agents of the
employer when they told employees that the employer
would likely shut down the plant if employees voted in
favor of a union.
In contrast, the Board may decline to find agency
where an employee acts outside the scope of his or her
usual duties. Thus, in Waterbed World, supra, the Board
found that an employee who interrogated other employees
and threatened them with discharge did not act as an
agent of the employer because the employer had never
held out the employee as being privy to management de-
cisions or as speaking on its behalf.
Although not dispositive, the Board will consider
whether the statements or actions of an alleged employee
agent were consistent with statements or actions of the
employer. The Board has found that such consistencies
support a finding of apparent authority. For example, in
Hausner Hard-Chrome, discussed above, the Board found
that the “manifestation of apparent authority was
strengthened” because the statements made by the de-
partment heads were consistent with statements made by
management. 326 NLRB at 428. See also Great Ameri-
can Products, 312 NLRB 962 (1993).
We emphasize that an employee may be an agent of the
employer for one purpose but not another. For example,
in Cooper Industries, supra, the Board found that em-
ployees could reasonably believe that employee facilita-
tors who made various coercive statements acted as
agents of the employer because the employer had held
them out as primary conduits for communication with
management. However, the Board found that employees
would not reasonably believe that a facilitator who at-
tended a union meeting acted as an agent of the employer
for purposes of surveillance where the union representa-
tive had questioned the facilitator, accepted his explana-
tion that he was there as a regular worker, and permitted
him to remain. 328 NLRB at 146.
Finally, it is the burden of the party who asserts that an
individual has acted with apparent authority to establish
the agency relationship. Millard Processing Services, 304
NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th Cir. 1993),
cert. denied 510 U.S. 1092 (1994). As discussed above,
the party who has the burden to prove agency must estab-
lish an agency relationship with regard to the specific
conduct that is alleged to be unlawful.
In applying these principles here, we find that the Gen-
eral Counsel, who bears the burden of proof, has failed to
establish that the Respondent has taken any action from
which employees could reasonably conclude that Todd
Holmes was acting on the Respondent’s behalf when he
engaged in the specific conduct alleged to be unlawful.
The record indicates that Holmes was a group leader and
that he attended supervisory meetings during the relevant
period. However, it contains no relevant evidence regard-
ing Holmes’ duties in his position during this time, nor
does it indicate what occurred during these supervisory
meetings.5 Thus, there is no evidence from which we can
determine whether any of the actions alleged to be unlaw-
ful were within the scope of or related to Holmes’ duties
as a group leader.
Additionally, there is no evidence that the Respondent
communicated to employees that Holmes was acting on
its behalf at the time he engaged in the acts in question.
The Respondent did nothing that would indicate to em-
ployees that it sent Holmes to a union meeting, or that
Holmes spoke for management when he questioned an
employee about the meeting or told employees they were
being watched. In the absence of such evidence, we can-
not conclude that, based solely upon his position as group
leader, employees could reasonably believe that Holmes
was speaking or acting on behalf of the Respondent.
Holmes’ questioning of an employee about a union
meeting in late March was consistent with the actions of
Supervisor Mike Ward, whose similar questioning of an
employee we find to be unlawful (see below). However,
we find that this evidence by itself is insufficient to es-
tablish apparent authority.

5 While counsel for the General Counsel specifically questioned
Holmes about his duties once he became a supervisor, counsel failed to
elicit any specific information concerning Holmes’s duties or responsi-
bilities as a group leader during the relevant period.
PAN-OSTON CO. 307
Accordingly, because we find that Holmes was not an
agent of the Respondent, we find that his conduct did not
violate Section 8(a)(1).6
III. THE INTERROGATION OF DOUGLAS
SPRINGER BY SUPERVISOR MIKE WARD
We affirm the judge’s finding that admitted Supervisor
Mike Ward violated Section 8(a)(1) when he questioned
employee Douglas Springer about a union meeting. In
finding the violation we do not rely on the judge’s ra-
tionale, but rather find the questioning coercive for rea-
sons set forth below.
The test for determining whether an employer has
unlawfully interrogated an employee is whether under all
of the circumstances the interrogation reasonably tends to
restrain, coerce, or interfere with rights guaranteed by the
Act. Rossmore House, 269 NLRB 1176 (1984). Here,
Ward’s questioning of Springer took place in the Respon-
dent’s plant while Springer was working the third shift in
April or May 1998, when employees were attempting to
organize. Although Springer had been active in union
organizing, there is no evidence that he openly supported
the union or that he had ever made his union sympathies
known to Ward or any other supervisor. Springer had
been present at an employee meeting in December 1997
during which Plant Manager Dan Day declared that he
would not tolerate a union and would do what he could to
keep the union out. Thus, at the time of the questioning
Springer was aware of the Respondent’s hostility toward
the Union.7
Contrary to our dissenting colleague, we find the total-
ity of the evidence here sufficient to establish that Ward’s
questioning of Springer was coercive and therefore viola-
tive of Section 8(a)(1). Although the record is silent as to
the precise words used by Ward, Springer testified that
Ward asked him about a union meeting on Sunday after-
noon. Obviously, the question was about protected union
activity. We conclude that such an inquiry, made under
the circumstances discussed above, where the employee
had not previously disclosed his union sympathies and
was aware of the Respondent’s hostility towards the Un-
ion, is coercive. Thus, we affirm the violation.

6 The Respondent argues that Holmes’ statement to Philip Mosby
was not coercive and therefore did not constitute unlawful interroga-
tion. Because we find that Holmes was neither a supervisor nor an
agent of Respondent at the time he made the statement, we need not
reach this issue.
7 Ward did not testify and therefore Springer’s testimony regarding
this issue is undisputed.
IV. GARY FERGUSON’S FINAL WARNING
AND DISCHARGE
The judge found that the Respondent violated Section
8(a)(3) and (1) by issuing a final written warning on April
3, 1998, to employee Gary Ferguson—who led the effort
to bring a union into the Respondent’s plant—and by
terminating him approximately 1 month later. We agree.
Under Wright Line,8 the General Counsel bears the
burden of establishing that Ferguson’s protected union
activity was a motivating factor for the Respondent’s
conduct. We agree with the judge that the General Coun-
sel has met his burden.9 However, for reasons discussed
above, we do not rely on the actions of Todd Holmes in
finding animus on the part of the Respondent. Rather,
we find animus based on Ward’s unlawful questioning of
Springer, Plant Manager Day’s statement to employees
that he would not tolerate a union, and Supervisor Doug-
las England’s selective enforcement of a no-talking rule
against prounion employees.
Once the General Counsel established the antiunion
motivation for the Respondent’s actions, the burden
shifted to the Respondent to show that it would have dis-
ciplined and discharged Ferguson in the absence of his
union activity. The Respondent contends that Ferguson
was discharged because his job performance was unsatis-
factory as measured by a work sampling system that the
Respondent began utilizing in February 1998.10 The judge
found this reason was pretextual and that the Respon-
dent’s actions were therefore unlawful. We affirm the
judge’s findings.
V. THE RESPONDENT’S EARLIER WARNINGS
TO FERGUSON
The General Counsel has excepted to the judge’s inad-
vertent failure to rule on allegations that Respondent vio-
lated Section 8(a)(3) and (1) by issuing warnings to Fer-
guson on January 15, and on March 27, 1998. We find
merit in these exceptions, and further find that the Re-
spondent violated the Act as alleged.
Supervisor Douglas England issued a written warning
to Ferguson on January 15 because of Ferguson’s low
productivity on the prior day. Ferguson testified that he
tried to explain to England that some of the parts on
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
9 In addition to the judge’s findings regarding the Respondent’s
knowledge of Ferguson’s union activity, we rely on the evidence that
both Plant Manager Day and Supervisor Tom Staples, who initiated the
investigation of the brake press operation that eventually led to Fergu-
son’s discharge, had personal knowledge that Ferguson was involved in
union organizing.
10 The work sampling system is more fully described in sec. II,D, of
the judge’s decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
which he had worked that day were rework or rerun work
that required him to change the setup of his machine in
between running the parts through. England told Fergu-
son that he did not want to hear any excuses, and told
him to sign the discipline form. The evidence indicates
that at the time of this incident the Respondent was
aware that Ferguson supported the Union.
England had previously reprimanded Ferguson in De-
cember 1997 for talking with another employee. Ferguson
was near his machine talking to the operator next to him
when England walked over and told them to get back to
work. As England walked over to Ferguson, he passed by
several other employees who were also talking but said
nothing to them. When Ferguson pointed out that he was
not the only one talking, England replied that the fact that
the others were talking did not mean that he had the right
to talk. England then walked away from Ferguson and
walked past the other employees, who continued to talk,
and again said nothing. The employees who England al-
lowed to talk were opposed to the Union. The Respondent
has no rule against employees talking to one another.
We conclude that the December incident, which oc-
curred only about a month before England issued the
January 15 warning, is evidence of England’s hostility
towards Ferguson because of Ferguson’s prounion posi-
tion. England did not testify and Ferguson’s testimony
concerning these events is undisputed. Under these cir-
cumstances we find that England issued the January 15
warning to Ferguson in retaliation for his union activity
in violation of Section 8(a)(3) and (1).
Ferguson also received an oral warning on March 27
for low productivity. This warning was based upon Fer-
guson’s performance as measured by the Respondent
using its work sampling system. Because we have deter-
mined that the Respondent’s purported reliance on this
system was pretextual, we find that the warning of March
27, also based upon work sampling, was given in viola-
tion of Section 8(a)(3) and (1).
VI. PHILIP MOSBY’S FINAL WARNING
The judge found that the Respondent violated Section
8(a)(3) and (1) by issuing a final written warning to
Philip Mosby on April 3, 1998. In its exceptions, the
Respondent argues, inter alia, that the General Counsel
failed to establish that it had any direct knowledge of
Mosby’s union activities. We agree with the Respondent
that the evidence is insufficient to establish such knowl-
edge. Mosby was a union supporter who signed an au-
thorization card and tried to recruit other employees.
However, there is no direct evidence to indicate that the
Respondent was aware of Mosby’s union activity.
Nevertheless, we affirm the judge’s finding of a viola-
tion. It is well established that, in the absence of direct
evidence, an employer’s knowledge of an employee’s
union activities may be proven by circumstantial evi-
dence from which a reasonable inference may be drawn.
Such circumstances may include the employer’s demon-
strated knowledge of general union activities, the em-
ployer’s demonstrated union animus, the timing of the
discipline or discharge, and pretextual reasons for the
discipline or discharge asserted by the employer. Kajima
Engineering & Construction, 331 NLRB 1604 (2000)
(and cases cited therein). See also Darbar Indian Res-
taurant, 288 NLRB 545 (1988); Dr. Frederick
Davidowitz, D.D.S., 277 NLRB 1046 (1985).
Applying these criteria here, we find that the evidence
supports an inference that the Respondent was aware of
Mosby’s involvement with the Union. It is undisputed
that the Respondent was aware that the Union was at-
tempting to organize its employees. As discussed above,
the evidence also reveals that the Respondent harbored
antiunion animus as demonstrated by its violations of
Section 8(a)(3) and (1). Additionally, Mosby’s final warn-
ing was given on the same day as the unlawful warning to
Ferguson, a known union supporter, and the language was
almost identical to that of Ferguson’s warning.
As with the final warning to Ferguson, we also find that
the reason proffered by the Respondent for Mosby’s final
warning does not withstand scrutiny. Mosby worked in
the brake press area of the plant with Ferguson and was
evaluated under the same work sampling system, which
the judge found to be selectively directed at the brake
press operators. The Respondent asserts, as it did with
regard to Ferguson, that the reason for the warning was its
determination that Mosby’s performance was unsatisfac-
tory based upon data from the work sampling system.
However, when Mosby asked Supervisor Tom Staples for
specific information regarding his alleged nonproductiv-
ity, the only response he received from Staples was that
he was not productive. In fact, on the day that Mosby was
allegedly not productive, the Respondent’s records indi-
cate he was working 95 percent of the time. In these cir-
cumstances, and in light of our findings that the same
defense proffered by the Respondent against Ferguson
was pretextual, we find that the Respondent’s asserted
reason for Mosby’s discipline also to be pretextual.
Accordingly, based on all the foregoing, we find a suf-
ficient basis to infer knowledge and we affirm the
judge’s finding that the Respondent’s final warning to
Mosby violated Section 8(a)(3) and (1).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3.
“3. The Respondent violated Section 8(a)(1) of the
Act by coercively interrogating employee Douglas
Springer about his union activities.”
PAN-OSTON CO. 309
2. Substitute the following for paragraph 4.
“4. The Respondent violated Section 8(a)(3) and (1)
of the Act by issuing employee Gary Ferguson a written
warning on January 15, 1998, a verbal warning on March
27, 1998, a final written warning on April 3, 1998, and
by discharging him on May 8, 1998, because of his pro-
tected activity; and by issuing employee Philip Mosby a
final written warning on April 3, 1998, because of his
protected activity.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Pan-Oston Company, Glasgow, Kentucky,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating its employees about their
union and other protected activities.
(b) Discouraging membership in Sheet Metal Workers’
International Association, Local No. 433, AFL–CIO, or
any other labor organization, by giving warnings to or by
discharging employees because of their union or other
protected activities, or by discriminating against them in
any other manner with respect to their wages, hours, ten-
ure of employment or any other terms and conditions of
employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 8(a)(1) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Gary Ferguson reinstatement to his former position, or, if
that position no longer exists, to a substantially equiva-
lent position, dismissing if necessary any employee hired
to fill said position, and make him whole in the manner
set forth in the remedy section of the decision.
(b) Within 14 days from the date of this Order, ex-
punge from its records all references to its discharge of
Gary Ferguson and to its written warning of January 15,
1998, its verbal warning of March 27, 1998, and to its
final written warning of April 3, 1998, given to Fergu-
son, inform Ferguson in writing that this has been done,
and that the aforesaid actions will not be used as the ba-
sis of any future discipline.
(c) Within 14 days from the date of this Order, ex-
punge from its records all references to its final written
warning of April 3, 1998, given to Philip Mosby and
inform Mosby in writing that this has been done, and that
the aforesaid actions will not be used as the basis of any
future discipline.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Glasgow, Kentucky facility, copies of the attached
notice marked “Appendix.”11 Copies of the notice, on
forms provided by the Regional Director for Region 26,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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, Re-
spondent 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 January 15, 1998.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting in part.
I disagree with my colleagues in one respect. I cannot
conclude that the Respondent’s supervisor, Mike Ward,
unlawfully interrogated employee Douglas Springer.
Springer testified only that in April or May 1998 Ward
asked him “about a Union meeting.”1 There is no evi-
dence as to the precise question asked by Ward. My col-
leagues seek to supply only the general testimony, but no
specifics. In this regard we do not know precisely what
Springer was asked, whether this was a casual or isolated
question, or any of the circumstances surrounding the
question.
The majority notes that the questioning took place dur-
ing an organizing campaign. But surely this is not

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 See the judge’s decision at sec. F(1)(b).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
enough to make the question coercive. My colleagues
also rely on the fact that, although Springer was active in
organizing, there was no evidence of management
knowledge of his union activities. Concededly, where
the union sentiments of an employee are unknown, it
may be coercive to ask an employee where he stands on
the issue. However, as noted above, we do not know
enough about the question to determine whether it was of
this character.
In sum, without more regarding the precise words
used, or the locus and context of the question, the evi-
dence is insufficient to establish a violation of Section
8(a)(1).2 Finally, my colleagues rely on Springer’s pres-
ence at an employee meeting months earlier during
which the Respondent’s plant manager (Day) made a
comment which my colleagues find to be evidence of the
Respondent’s hostility towards the Union. Assuming
that the comment evidenced hostility, that would not
show that Ward’s question, months later, was coercive.

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

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively interrogate our employees
about their union and other protected activity.
WE WILL NOT discourage membership in the Sheet
Metal Workers’ International Association, Local No.
433, AFL–CIO, or any other labor organization, by giv-
ing warnings to or by discharging employees because of
their Union or other protected activity, or by discriminat-
ing against them in any other manner.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 8(a)(1) of the Act.

2 See, e.g., Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964); and Sunny-
vale Medical Center, 277 NLRB 1217 (1985).
WE WILL offer Gary Ferguson reinstatement to his
former position, and make him whole with interest for
any loss of earnings he may have suffered because of our
unlawful discharge of him.
WE WILL remove from our records all references to
our discharge of Gary Ferguson and all our unlawful
warnings given to Gary Ferguson, and to the unlawful
final written warning given to Phillip Mosby, and inform
them in writing that this has been done and these actions
will not form the basis of any future discipline of them.
PAN-OSTON COMPANY

Melvin L. Ford, Esq., for the General Counsel.
John T. Lovett, Esq. (Brown, Todd & Heyburn, PLLC), for the
Respondent.
David K. Harmes, International Representative for the Charg-
ing Party.

DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on May 21, 1998,1 by Sheet Metal Workers’
International Association, Local No. 433, AFL–CIO (the Un-
ion) and an amended charge on August 21. Complaint issued
on August 27 and alleges that Pan-Oston Company (Respon-
dent or the Company) engaged in surveillance of its employees’
union activities by a supervisor’s attendance at a union meet-
ing, by creating the impression of surveillance of such activi-
ties, and by interrogating employees about the location of a
union meeting. In addition, the complaint as amended at the
hearing alleges that Respondent issued a final written warning
to employee Philip Mosby, a final written warning to employee
Gary Ferguson, and that it discharged Ferguson on May 8, all
of the foregoing actions because of the employees’ union sym-
pathies or activities.
A hearing on these matters was held before me in Nashville,
Tennessee, on December 10 and 11. Thereafter, the General
Counsel and Respondent filed briefs. On the basis of all the
evidence of record, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of busi-
ness in Glasgow, Kentucky, where it is engaged in the manu-
facture of counters for retail businesses. During the 12-month
period ending July 31, Respondent purchased and received at
its Glasgow, Kentucky facility goods valued in excess of
$50,000 directly from points outside the Commonwealth of
Kentucky. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
1 All dates are in 1998 unless otherwise specified.
PAN-OSTON CO. 311
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Gary Ferguson’s Employment History and Union Activities
Gary Ferguson was hired in July 1990 as a brake press op-
erator in the machine line department. This department, on
each shift, consists of one “shear” operator, two “Pega” (ma-
chine) operators, four brake press operators, each on a separate
machine, two “Finn-power” operators (for punching), one
buffer, and one machine line support employee.
The function of a brake press operator is to bend metal to
conform to the design of each counter. Each separate design
requires a “tool set-up.” On some orders multiple counters are
produced from the same “setup.” The brake press operator
checks his drawings to determine the nature of the bend, ascer-
tains the parts which he has, and determines the dimensions.
Brake press operators customarily talk to one another about
their work, and sometimes work on the same job.
Some of the brake press operator’s functions include “re-
works” and “reruns” A “rework” is an unacceptable part that
the operator can flatten out and rebend. A “rerun” is a missing
piece, or one so damaged that it cannot be corrected, but must
be made from the start beginning with the shear operator.
“Reworks” increase the number of times the brake press opera-
tor has to make a tool “setup,” for which he produces only one
part. A rework assignment requires a decision by the machine
line leader as to the correct way to make the bends, the correct
dimensions, and other aspects of the job. While this decision is
being made, the brake press operator must wait. The result of
these factors is less productivity by the brake press operator.2
After a counter is completed in the machine line department, it
is sent to the welding, painting, or assembly department.
Ferguson received a reprimand in June 1992, directing him
to improve his work quality and quantity.3 After starting as a
brake press operator he became a “quality control” employee in
1993. In June 1994 Ferguson was transferred to the third shift
with and increase in pay. In November 1994, he was trans-
ferred to the second shift as a team leader to assist a new line
leader for that shift. After 2 weeks in this job, he was trans-
ferred “to days” to work with Terry Leber, the line leader.
However, the Company was “downsizing” team leaders, and in
March 1995, Ferguson was transferred to another plant as a
brake press operator.4 His pay increase was taken away. How-
ever, in January 1996 he was again promoted to line leader, and
his pay increase was restored.
In 1997 the Company went from a 3-shift 8-hour operation
to a 2-shift 12-hour operation, with two crews working alter-
nate days. Work at POKY 3 diminished, and in January 1998
Ferguson was transferred back to the original plant as a brake
press operator, again under team leader Terry Leber. Accord-
ing to Leber, he assigned 50 to 70 percent of the rework and
rerun jobs to Ferguson.
Ferguson initiated a union campaign in October 1995 by
calling the union representative. He obtained card signatures,

2 Testimony of Terry Leber, a machine line leader.
3 R. Exh. 1.
4 The name of the plant was “POKY 3” (Pan-Oston Kentucky Plant
Number 3). The Company had previously owned three plants, which
explains part of the name of this plant.
distributed handbills, and held about three union meetings. In
November 1995, Mike Ward, an admitted supervisor, told Fer-
guson that he understood there was a union meeting that night,
and asked Ferguson how they were going.5 Ferguson discon-
tinued these efforts because of a lack of response. Ward gave
him a written warning on December 12, 1995.6
Ferguson called the union representative again in 1997 and
recommended another campaign. The union representative
asked Ferguson to determine whether there was more interest
this time, and Ferguson did so. A first union meeting was held
in July 1997, and subsequent meetings approximately once per
month. Ferguson again obtained signatures on authorization
cards, signed one himself in September 1997 and distributed
handbills for about 3 to 4 months in a shopping area in the town
of Glasgow, Kentucky, where the plant is located.
In August 1997 Ferguson was a machine line support, and
was issued a reprimand for talking to other employees and fail-
ing to keep brake press operators supplied with materials.7
Ferguson replied that it was necessary to talk to operators to
determine their needs. In October 1997, Supervisor Mike Ward
approached Ferguson and asked him how his meetings were
going. Ferguson replied that his father’s meetings were going
well. Ward responded that he was talking about the “Union
meetings,” that the “Union stuff sure keeps management on its
toes,” and that he would sign a card himself if he were not a
supervisor. I credit Ferguson’s uncontradicted testimony.
The Company reimbursed employees for jeans purchased for
work. In September 1997, a lead person named Terry Jessie
was passing out reimbursement forms for this purpose. He did
not give one to Ferguson, and the latter asked the reason. Jessie
replied Ferguson was trying to get a “damn Union” into the
plant, and that if that happened the employees would not get
any more reimbursement for jeans. Ferguson filed a complaint
and subsequently had a meeting about the incident with admit-
ted Supervisors Douglas England and Paul Smith, together with
Terry Jessie. The latter asked Ferguson why he was so strongly
behind the Union, and the supervisors looked at Ferguson as if
they were expecting him to answer. He did not answer the
question, but Supervisor Smith told him that the Union had
nothing to offer the employees. Smith did not testify, and I
credit Ferguson’s uncontradicted testimony.
Shortly after this conversation, Ferguson went to Personnel
Manager Sharon Jones, an admitted supervisor and asked about
the incident. She asked why the employees were interested in
getting a Union into the plant. Ferguson replied that they were
interested in job security, better wages, insurance, and senior-
ity. Jones wrote down what Ferguson had said.
Former employee Douglas Springer testified that union
meetings occurred once or twice a month. Springer stated that,
in April or May 1998, Supervisor Mike Ward asked him about
a union meeting being held on a Sunday afternoon. Another
supervisor asked him the same question. Springer’s testimony
was uncontradicted, and is credited.
5 Ward did not testify, and Ferguson’s believable testimony is cred-
ited.
6 R. Exh. 3.
7 GC Exh. 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
B. The Alleged Surveillance and Impression of Surveillance
The complaint alleges that Respondent engaged in surveil-
lance of union activities by attending a union meeting, and, at
about the same time, created an impression of surveillance by
telling employees that Respondent was watching them.
The individual who engaged in these activities was Todd
Holmes. The complaint alleges and the answer denies that
Holmes was a supervisor. Former employee Douglas Springer
testified that Holmes was a supervisor, although not Springer’s
immediate supervisor. Holmes testified that he was a supervi-
sor in early 1998, but was hourly paid. Other supervisors are
hourly paid, according to Holmes. He was “acting as a supervi-
sor, but was not getting paid as a supervisor.” Beginning about
3 months before his testimony in this proceeding, i.e., in about
September or October 1998, Holmes testified he was compen-
sated by salary. However, on April 3, 1998, he signed as a
supervisor a final written warning issued to Philip Mosby.8
The union meeting was held on January 9, 1998, in a Day’s
Inn. Springer was present. He was talking with Shane White;
Holmes was nearby. Springer testified that he and White felt
that they were being watched. The employees told the business
agent that Holmes was a supervisor, according to Philip Mosby.
Holmes testified that he was an hourly employee, and had a
right to attend. Holmes denied that anybody in management
asked him to attend the union meeting. However, the next day
he reported his attendance to his own supervisor, Doug Eng-
land. The latter replied that it was not a good idea because of
the “position” that Holmes was in.
Springer testified that Holmes told him in the plant that he
was being watched. Mosby stated that Holmes walked past his
machine and asked whether he was going to “the big meeting.”
A union meeting was scheduled for that or the following Sun-
day. This testimony is uncontradicted.
C. Plant Manager Day’s Speeches
Dan Day was appointed plant manager in late 1997, and
made a speech about unions to employees in October 1997. He
said that the Union could not promise them anything, and could
not force the Company to agree to anything. All the Union
could do is cause the employees to strike. If this was an eco-
nomic strike, the Company could hire permanent replacements
for the strikers, and the latter could not return to their jobs as
long as the replacements wanted them. A union would hamper
the Company’s ability “to protect all our jobs” by reducing the
Company’s efforts to meet competition. Day told employees
that he did not want a union in the plant, and “would fight it in
every legal way possible.”9
There is evidence that Day made another speech to employ-
ees in December 1997. Former employee Douglas Springer
testified that he did so, and said that he would not tolerate a
union, and would do what he could to keep one out. Machine
line leader Terry Leber testified that Day said that the employ-
ees would be better off without a union, and that he would do
everything in his power to keep one out. Philip Mosby cor-
roborated this testimony. Gary Ferguson testified that Day

8 GC Exh. 4.
9 R. Exh. 11.
made a speech in early December in which he said that he knew
there was a movement for a union in the shop, and that there
were a few people involved in it. Day told the employees that
he would not tolerate a union in the Company, and would do
everything he could to keep it out. Day testified that he could
not recall making a speech in December.
The overwhelming weight of this evidence demonstrates that
Day told the employees he would not tolerate a union, and
would do everything he could to keep it out. He also acknowl-
edged that he knew that there were “a few people” involved in
the Union movement.
D. The Warning to and Discharge of Gary Ferguson
1. The productivity issue
In early 1997, Respondent had two plants operating, the fa-
cility in Glasgow, Kentucky, and the plant known as “POKY
3.” Ferguson had been transferred to POKY 3 in 1995. In June
1997, the manufacturing function of POKY 3 was “cut down
drastically” due to “production” and employees were trans-
ferred back to the main plant.10 At the same time, the 12-hour
4-day shift change was made in the manufacturing operation.
As indicated, this was discontinued in January 1998, and the
Company returned to the 3-shift 8-hour schedule. Ferguson
returned to the regular plant as a brake press operator. Produc-
tion at POKY 3 was resumed.
As indicated, Dan Day arrived as CEO in October 1997. He
contended at the hearing that the plant was behind in deliveries
of orders, was working excessive amounts of overtime, and had
subcontracted $1.5 billion of orders to another producer. Day
concluded that there was a delay in production at the brake
press machines, and directed Supervisor Tommy Staples to
investigate.
Staples testified that the Company produced items pursuant
to a specific order, but did not make products “for inventory.”
He affirmed that the Company was “falling behind in orders” in
February 1998. On the other hand, Staples also averred that the
Company was not behind in “deliveries,” and had not received
any complaints from customers that their orders were not being
delivered. Staples further testified that Respondent was con-
cerned with production in all departments, such as the Pega
operators, the shearer, the buffers, and the rest of the machine
line department. Staples conceded that there had been mistakes
by the Pega operators and the shearer, who preceded the brake
press operators, and that these mistakes impeded the entire
operation. However, Staples was asked whether he was con-
cerned “only” with the brake press operators, and answered,
“Yes.”
Gary Ferguson gave a somewhat different version of the
Company’s production procedure. It wanted a “smooth flow of
work through the plant.” In order to effect this, the Company
wanted no delays in one operation because of a lack of orders.
Accordingly, it planned for work waiting to be done by each
component in the machine line department. Otherwise, the
employees would be “standing around waiting,” according to
Ferguson. He testified that there were “bottlenecks” or “build-
10 Testimony of machine line leader Terry Leber and Gary Ferguson.
PAN-OSTON CO. 313
ups” throughout the plant, and that there were no more in the
brake press area than in other operations.
2. The investigation of the brake press department
To begin, Supervisor Tommy Staples admitted that the Com-
pany had no “production rate” or “production quota” for the
machine line department. It did not keep records of the
products produced by individual employees. Instead, it deter-
mined whether a particular order was completed within the
“shop hours” allowed it by a computer. The reason for the lack
of productivity quotas, advanced by Respondent, was that the
components being manufactured were different from one an-
other.
In lieu of comparing production rates of the employees, Re-
spondent employed a system called “work sampling.” Accord-
ing to Respondent’s witnesses, this involves simply observing
randomly an employee over many instances, then computing
the percentage of times when he was “working,” and recording
the results. A percentage of 80 percent was deemed satisfac-
tory.
There was no company rule against employees talking to one
another, going for a coke, or to the restroom. As indicated, the
brake press operators on occasion were working together, or
needed advice on a procedure. In December 1997 Ferguson
was on his way to his brake press, but stopped to talk to the
operator next to him, Jimmy Bulle. Nearby, employees Alan
Payne, David Thomerson, and Doug Lloyd were talking.
Thomerson was antiunion, and Lloyd was “very strongly
against it.” Production Manager England approached Ferguson
and Bulle, and asked whether there was a “problem.” Upon
receiving a negative reply, England told them to stop talking,
and get back to work. Ferguson replied that England had just
passed Payne, Thomerson, and Lloyd talking, and had said
nothing to them. England replied that the fact they were talking
did not give Ferguson and Bulle the right to do so. He then left,
passing Payne, Thomerson, and Lloyd on the way. England
said nothing to these employees, who were still talking. Fergu-
son’s testimony is uncontradicted.
Tommy Staples was directed by CEO Dan Day to make
work sampling observations beginning in February 1998. He
did so only in the brake press department. As examples of “not
working,” Staples would record that the employee was talking
with another employee, was absent from his machine, was
drinking a soda, etc. Staples recorded that Ferguson was “not
working” when Staples observed him talking with line leader
Terry Leber or with machine line support personnel. CEO Day
conceded that the only way to determine whether two employ-
ees were talking about work was to ask them. However, Sta-
ples never made any such inquiries. The great majority of Sta-
ples’ “not working” observations concerned “talking.”11

11 The percentage of times when Ferguson was “working” from Feb-
ruary through May were: during 4 weeks in February, 86, 88, 85, and
88 percent; in March 67, 87, 88, 73; 79, 94, 88, 93, 72, 82, 81, 59, 68,
80, 82, 76, 63, 72, 63, 72, and 75 percent; in April, 73, 79, 91, 85, 90,
87, 92, 83, 63, 76, 33, 76, 81, 65, 80, 70, 70, 70, 75, 64, and 62 percent;
in May 56, 62, 71, 76, and 75 percent. GC Exhs. 6, 14, 15, and 16. R.
Br., appendix.
Respondent gave Ferguson a counseling on January 15,12 and
another on March 27. On April 2, events took place which
formed the basis of final written warnings to both Ferguson and
Mosby. One of the brake press machines was “down” that day,
and the employee who operated it was elsewhere. Staples
transferred the remaining three brake press operators to differ-
ent machines, i.e., to the machine of another employee. Thus,
Ferguson was transferred to Mosby’s machine, and Mosby to
Thomerson’s. The employees protested to Staples that the
machines were different, and that this would slow down pro-
duction. Staples admitted at the hearing that the effect of the
transfer of the machines was to slow down production.
On the next day, April 3, Ferguson and Mosby were given
“final written warnings” for, in effect, inadequate production on
April 2. Ferguson’s warning reads in part:

Operator not showing effort to run product through the proc-
ess at scheduled expectation. Observed by a member of upper
management intentionally stopping the process when the
dept.’s supervisor leaves the area. Not producing parts in the
sequence needed for the next operation. All activity resulting
in less that 50% of production performed . . . Poor perform-
ance resulted in next operation to run short on their production
plan and created more work on press brake operators on other
shifts.13

Ferguson testified that he did not know what the Company was
talking about in asserting that he intentionally stopped produc-
tion, and stated that he was never told. Ferguson denied that
there was any set sequence after he had finished working on a
product. Staples engaged in 19 observations of Ferguson on
April 2. Fifteen of them showed that he was “working,” while
four showed that he was not working.14 He was thus working
79 percent of the time according to Staples—only one percent
less than the Respondent’s asserted goal of 80 percent.
Finally, Respondent discharged Ferguson on May 8, 1998.15
CEO Dan Day testified that, although Ferguson had improved
his performance on occasion, it was not sufficient, and Day
made the decision to discharge him.
Respondent called several employees to testify about Fergu-
son’s work habits. Thus, Mark Johnson testified that Ferguson
was the slowest brake press operator; he told Johnson that the
only reason he was at the Company was the insurance. How-
ever, Johnson further testified that he had not worked in the
machine line department since January 5, 1998, and thus had no
knowledge of Ferguson’s work habits after that date. Em-
ployee Doug Lloyd testified that Ferguson did not put a lot of
effort into his work. Lloyd opposed the Union, and knew that
Ferguson supported it. Employee Todd Medford testified that
CEO Day instructed him to observe the work functions of the
12 GC Exh. 12.
13 GC Exh. 11.
14 GC Exh. 15, p. 2, the figures under the initials “GF” are Fergu-
son’s.
15 The discharge notice states that Ferguson was discharged because
of an excessive amount of time not working. The employee demon-
strated for brief periods acceptable levels of work. The employee’s
performance continues to decline and remains at unacceptable levels.
GC Exh. 12.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
employees, that he did so and that Ferguson was not working 8
out of 10 times.
Machine line leader Terry Leber, with whom Ferguson
worked, characterized Mosby and Ferguson as the “least effi-
cient” of the four brake press operators. However, he testified
that Ferguson had to wait while Leber was making his decision
on a part to be reworked. As indicated, Ferguson received most
of these assignments. Leber denied that he had ever seen Fer-
guson idly standing around while he should have been working,
or that he engaged in “loafing.”
Ferguson filed a claim for unemployment insurance benefits.
After an initial denial, he filed an appeal, and a hearing was
held before a senior appeals referee. The claimant and the em-
ployer presented witnesses. The denial was set aside, and the
referee commented that “there was no evidence that claimant
was not having to wait on equipment or decision from a super-
visor or team leader.”16
E. The Final Warning Issued to Philip Mosby
Philip Mosby signed a union card in October, and recruited
other employees to join the Union.
On April 2, as indicated, a machine was down, and Staples
transferred the three remaining brake press operators to differ-
ent machines. As noted, the employees told Staples that it was
not a good idea, since the machines were different, and it would
hurt production. According to Mosby, Staples replied that
Mosby needed more training on the machine to which he was
transferred. On cross-examination, Staples admitted that the
likely effect of the transfer was to slow down an employee, and
cause him to ask questions of the operator who previously op-
erated it. Nonetheless, Mosby was given Thomerson’s ma-
chine, and had to ask him how to operate it.
As indicated, on April 3, Respondent delivered a final writ-
ten warning of deficient production on April 2 to Mosby. The
language of the warning is identical to that of the final warning
given to Ferguson.17
Mosby said he was “shocked” at the warning; Tommy Sta-
ples told him that he was not being productive. Mosby asked
whether he was talking too much, and Staples replied, “Not
excessively.” Mosby asked whether he was away from his
machine too much, and Staples gave the same reply. Mosby
then asked what Staples meant about Mosby’s “not being pro-
ductive,” and Staples simply replied that he was “not produc-
tive,”
Mosby had another meeting, this time with CEO Dan Day,
Tommy Staples, and Human Resources Manager Sharon Jones.
Day simply said that Mosby was not working up to “production
standards.”
Respondent had no production standards—it used the “work
sampling” procedure. On April 2, the date referred to in the
warning, Staples recorded Mosby as working 95 percent of the
time.18 Mosby denied the allegation that he was not producing
parts in the sequence required for the next operation.19 After

16 GC Exh. 13.
17 GC Exhs. 4, 11.
18 GC Exh. 15, p. 2. Mosby’s percentage is recorded in the column
designated “PM.”
19 Supra, fn. 13.
his work, a part may go to painting, assembly, or welding.
Mosby denied that he ever attempted to restrict production.20
F. Factual and Legal Conclusions
1. The alleged unlawful interrogations
(a) Applicable principles
In an early statement of the principles to be applied, the
Board stated:

In our view, the test is whether, under all the circumstances,
the interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the Act.
The fact that employees gave false answers when questioned,
although relevant, is not controlling. The Respondent com-
municated its purpose in questioning the employees—a pur-
pose which was legitimate in nature—to the employees and
assured them that no reprisal would take place. Moreover, the
questioning occurred in a background free of employer hostil-
ity to union organization. These circumstances convince us
that the Respondent’s interrogation did not reasonably lead
the employees to believe that economic reprisal might be vis-
ited upon them by Respondent. [Blue Flash Express, Inc.,
109 NLRB (1954).]

The Board distinguished its decision in Blue Flash from a con-
trary holding, in which the interrogation took place a week
before the Board election, and the employer failed to give the
employees any legitimate reason for the interrogation or assur-
ances against reprisal (id.).
The Board reiterated this standard in Rossmore House, 269
NLRB 1176 (1984), where it rejected a per se approach to in-
terrogation of open union adherents and concluded that the test
was whether, under all of the circumstances, the interrogation
reasonably tends to interfere with, restrain, or coerce, employ-
ees in the exercise of rights guaranteed by the Act (id., 269 at
1177). The Board stated some of the factors to be considered:

Some factors which may be considered in analyzing alleged
interrogations are: (1) the background: (2) the nature of the in-
formation sought: (3) the identify of the questioner; and (4)
the place and method of interrogation. See Bourne v. NLRB,
332 F.2d 47 (2d Cir. 1964). These and other relevant factors
are not to be mechanically applied in each case. Rather, they
represent some areas of inquiry that may be considered in ap-
plying the Blue Flash test of whether under all the circum-
stances the interrogation reasonably tends to restrain, coerce,
or interfere with rights guaranteed by the Act (id., 269 NLRB
1178, fn. 20).

The Board has concluded that interrogation of a known un-
ion adherent’s union sympathies was coercive. Baptist Medical
System, 288 NLRB 882 (1988). In Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), the Board applied the same test to
interrogation of employees who were not open union adherents.
The Court of Appeals for the Fifth Circuit recently affirmed a
Board finding of coercive interrogation because of the em-
ployer’s promulgation of an illegal rule, and a history of at-
tempting to engage in the same practice in the past. NLRB v.
20 Id.
PAN-OSTON CO. 315
Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990), enfg. in
part 294 NLRB 462 (1989).
(b) The interrogations
The complaint alleges that Supervisors Mike Ward and Todd
Holmes asked employees about a union meeting.21 The evi-
dence establishes that in April or May 1998, Supervisor Mike
Ward asked employee Douglas Springer about a union meeting
to be held on Sunday afternoon and that Todd Holmes asked
Philip Mosby a similar question in late March.
Ward had engaged in similar interrogation in the past. Thus,
during the first union campaign, he told Ferguson that he un-
derstood there was a union meeting that night, and asked how
they were going. In October 1997, Ward again asked Ferguson
how his meetings were going. When Ferguson answered that
his father’s meetings were going well, Ward stated that he was
talking about union meetings. Human Resource Manager
Sharon Jones interrogated Ferguson about the union movement.
When Ferguson protested to company managers about being
denied compensation for work jeans, Terry Jessie, in their pres-
ence, asked Ferguson why he was so strongly for the Union.
The managers looked at Ferguson for an answer.
Mosby testified that Todd Holmes walked past his machine
and asked whether he was going to “the big meeting,” when a
union meeting had been planned. I conclude that Holmes’ in-
quiry referred to the union meeting. As I further conclude in-
fra, Holmes engaged in surveillance and created an impression
of surveillance.
CEO Day’s statements to employees—that he would not tol-
erate a union and would do what he could to keep one out—
establish the Company’s opposition to the union movement.
Ward did not communicate his purpose in asking Springer
questions, nor did he give any assurances against reprisals.
Holmes actually participated in the discipline administered to
Mosby.
As for Holmes’ status, he testified that he was a supervisor,
Springer testified to the same effect, Holmes signed Mosby’s
reprimand as a supervisor, and the employees at the union
meeting told the business against that Homes was a supervisor.
The alleged fact that Holmes was hourly paid (as were other
supervisors) but was salaried at a later date does not mitigate
against a finding that, in these circumstances, he had apparent if
not actual authority as a supervisor, and I so find. This conclu-
sion is buttressed by England’s statement to Holmes that he
should not have gone to the union meeting considering his “po-
sition.”
I conclude that the interrogations of Ward and Holmes were
coercive, and violated Section 8(a)(1).
2. The alleged surveillance and impression of surveillance
The complaint alleges that Respondent, by Todd Holmes,
engaged in surveillance of employees’ union activities by at-
tending a union meeting, and created an impression that em-
ployees’ union activities were under surveillance by telling
them that Respondent was watching them.

21 GC Exh. 1(e), par. 8.
The evidence shows that Holmes attended a union meeting
on January 9, 1998. He denied that anybody from management
asked him to do this. Nonetheless, he reported this visit to
Supervisor Doug England the next day. Although England
assertedly told him that he should not have done so considering
his “position,” Holmes told Springer that he was being
“watched.”
Respondent argues that it is not responsible for Holmes’
conduct because it did not send him to the union meeting, and
did not ask him to say anything to employees about the Un-
ion.22
This argument has no merit. I have concluded that Holmes
was a supervisor. At the very least, he had apparent supervi-
sory authority. An employer need not have given express au-
thority to an individual in order to be held responsible for the
individual’s conduct. Under the doctrine of apparent authority,
the acts of another will be attributed to the employer if a third
person could reasonably believe that the employer had con-
sented to have a particular act done on its behalf. NLRB v.
Donkin’s Inn, 532 F.2d 138, 141 (9th Cir. 1976); Dentech
Corp., 294 NLRB 924, 925 (1989); Restatement (Second) of
Agency, § 27 (1958). Thus, apparent authority exists when the
employer either intends “to cause the third person to believe
that the agent is authorized to act for him, or . . . should realize
that his conduct is likely to create such belief.” Restatement
(Second) of Agency, § 27 Comment (1958). Even if the con-
duct of another was contrary to an employer’s express instruc-
tion, the employer will be held responsible for that conduct if
employees could reasonably believe that the act was authorized.
NLRB v. Crown Laundry & Dry Clearners, 437 F.2d 290, 293
(5th Cir. 1971).
Holmes was nearby when Springer was talking with Shane
White at the union meeting. Springer and White felt that they
were being watched. I conclude that the visit to the union
meeting constituted unlawful surveillance of the union activi-
ties of Respondent’s employees. Intertype Co. v. NLRB, 371
F.2d 787 (4th Cir. 1967), enfg. 157 NLRB 1419 (1966).
Despite England’s admonition to Holmes that he should not
have attended the union meeting, Holmes told Springer in the
plant that he was being watched. In light of Holmes’ unlawful
inquiry about the union meeting and his unlawful attendance at
the meeting, it is obvious that this statement to Springer con-
veyed an impression that Springer’s union activities were under
surveillance. I conclude that, in so doing, Respondent violated
Section 8(a)(1).
3. The final warning to and discharge of Gary Ferguson
The alleged unlawful warning to and discharge of John Fer-
guson involved asserted violations of Section 8(a)(3) of the
Act. The General Counsel has the burden of establishing a
prima facie case that is sufficient to support an inference that
protected conduct was a motivating factor in an employer’s
decision to discipline an employee. Once this is established,
the burden shifts to the Respondent to demonstrate that the
discipline would have been administered even in the absence of
the protected conduct. The General Counsel must supply per-
22 R. Br. 22.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
suasive evidence that the employer acted because of antiunion
animus.23
Ferguson was for several years the leader of the union
movement, with supervisory knowledge of his activities. He
initiated the 1995 campaign, and Supervisor Ward asked him
about the meetings. Ferguson also started the 1997 campaign
signed a union card, and distributed handbills. Supervisor
Ward again asked him in 1997 about how his meetings were
going. When Ferguson interpreted this as a reference to his
father’s meetings, Ward corrected him and explicitly referred to
union meetings. Respondent argues that Ward’s remarks at this
time—that a union keeps management on its toes and that Ward
himself would sign a card if he were not a supervisor—show
that Ward (and Respondent) lacked union animus.24
This argument is disingenuous considering CEO Day’s
statement to employees that he would not tolerate a union in the
plant, and would do everything he could to keep one out, as
well as Respondent’s unlawful interrogation, surveillance, and
impression of surveillance. The Company’s hostility to the
union movement is further evidenced by Production Manager
England’s selective application of a de facto “no talking” rule
against Ferguson and Jimmy Bulle, while allowing antiunion
employees to continue talking without objection. When Fergu-
son protested the refusal of Terry Jessie to give him reim-
bursement forms for work jeans, the Company’s managers
allowed the protest meeting to be transformed into interrogation
about the Union movement.
I conclude that the General Counsel has established a prima
facie case sufficient to support an inference that Ferguson’s
protected activity was a motivating factor in Respondent’s de-
cision to discipline him.
Respondent’s asserted reason for the discipline is not persua-
sive. Although Ferguson received a reprimand in 1992 to im-
prove his work quality and quantity, he was made a team leader
in 1994 with an increase in pay. Although he was transferred to
“POKY 3” in 1995 as a brake press operator and reduction in
pay, he was again promoted to line leader in 1996 with restora-
tion of the higher pay.
When CEO Day arrived in late 1997, he instituted an “inves-
tigation.” What was the reason for this activity? According to
Day, the plant was behind in delivery of orders, was working
excessive overtime, and $1.5 billion in orders had been subcon-
tracted to another employer. To correct this grave condition,
Day directed Supervisor Tommy Staples to investigate only one
of the Company’s many operations—the brake press operators.
Staples agreed that the Company was “falling behind in or-
ders” in February 1997. However this was obviously a problem
for the sales department. Staples denied that the Company was
falling behind in “deliveries,” and thus exonerated the manufac-
turing components of responsibility for the Company’s asserted
problem. Staples’ contradiction of Day’s assertions is empha-
sized by the fact that Respondent reduced its operative capacity
in mid-1997 by cutting down functions at POKY 3. However,

23 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Manno Electric, 321 NLRB 278 fn. 12 (1996).
24 R. Br. 22.
a few months later according to Day, the Company was burst-
ing at the seams with orders, and had to subcontract $1.5 billion
in orders to another company. In light of Staples’ testimony
contradicting Day and the unlikely nature of Day’s description
of the asserted crisis, I conclude that the reason for the “inves-
tigation” was not the one claimed by Day.
Although Day contended that there was a delay in production
at the brake press machines, Supervisor Staples admitted that
there were mistakes at the preceding functions of the shearer
and the Pega operators. Nonetheless, Staples, following Day’s
orders, investigated only the brake press operators. Ferguson
gave a more realistic description of the production procedure.
Agreeing with Staples, he testified that there were “buildups”
throughout the various operating functions, because the Com-
pany wanted a “smooth flow” from one function to the next.
The combination of Staples’ admissions and Ferguson’s testi-
mony makes Day’s assertion of a “buildup” only at the brake
press department unbelievable.
Most of Staples’ recordings of “not working” were based on
assertions that the employee was “talking.” He never inquired
about the nature of the conversation, despite CEO Day’s admis-
sion that the only way to determine whether two employees
were talking about work problems was to ask them. Yet Sta-
ples did not do so. In fact, he recorded Ferguson as “not work-
ing” when the latter was talking with machine line leader Terry
Leber, from whom Ferguson had to receive instructions about
reworks and reruns, jobs which were assigned to him in num-
bers greater than those assigned to other employees. Staples in
fact failed to conduct a fair and complete investigation, and
thus manifested Respondent’s discriminatory motivation under
accepted Board precedent.
The testimony of Respondent’s employee witnesses was not
persuasive. Although Mark Johnson testified that Ferguson
was the slowest brake press operator, Johnson was not in the
brake press department during the period under investigation.
Doug Lloyd opposed the Union and was, based on that fact and
his demeanor, a biased witness. Todd Medord’s comments
were too sparse to form the basis for any judgment. The most
persuasive evidence was that given by Terry Leber, who gave
Ferguson work assignments. Although he characterized Fergu-
son (and Mosby) as the “least efficient” of the brake press op-
erators, he denied that Ferguson ever stood around when he
should have been working, or engaged in loafing. Leber was
not consulted when the decision to discipline Ferguson was
made.
In summary, I conclude that Respondent’s response for dis-
ciplining Ferguson was pretextual because (1) the asserted rea-
son for the “investigation” is unbelievable in light of the con-
tradictions in Respondent’s evidence; (2) the “investigation”
was selectively directed only at the brake press operators where
Ferguson and Mosby were located despite similar problems
with other manufacturing components, and was unfairly con-
ducted; (3) Ferguson was working 79 percent of the time on
April 2 despite Staples slowing operations down by switching
employees from one machine to another; and (4) Ferguson was
reprimanded only once prior to the first union campaign in
1995, but was thereafter twice promoted to “line leader” with a
raise in pay each time.
PAN-OSTON CO. 317
I conclude that Respondent has not rebutted the General
Counsel’s prima facie case, and that Respondent gave Ferguson
a final warning on April 3, 1998, and discharged him May 8,
1998, because of his protected activity, in violation of Section
8(a)(3) and (1). Although not determinative, it may be noted
that the favorable award Ferguson received in his unemploy-
ment compensation case is consistent with this decision.
4. The final written warning to Philip Mosby
Although Mosby was not as active in the union movement as
Ferguson, he did sign a union card and recruited other employ-
ees. Supervisor Holmes’ unlawful inquiry to Mosby about
whether he was going to a scheduled union meeting suggests the
Company’s awareness of Mosby’s union affiliation. Indeed,
CEO Day stated in one of his speeches that there were a few
people in the plant involved with the union movement, a state-
ment indicating knowledge of such persons on Day’s part.
Mosby’s final warning on April 3, is a paraphrase of the final
warning given to Ferguson on the same day. Mosby denied all
of the charges. Staples told Mosby that he was “not being
productive.” When Mosby attempted to get an explanation of
this allegation—such as “talking,” “being away from his ma-
chine,” etc.—he received the same answer, he was “not
productive.” As Respondent was careful to point out, it had no
production standards, and utilized its “work sampling”
techniques in lieu of comparative production figures. The irony
of this approach is that on April 2, when Mosby was allegedly
committing numerous offenses, and Staples was slowing down
operations by switching machines, Mosby was working 95
percent of the time. The warning is a manufactured invention
devoid of any meaning. I conclude that Respondent gave
Mosby a final written warning on April 3, 1998, because of his
protected activity, in violation of Section 8(a)(3) and (1).
In accordance with my findings above, I make the following.
CONCLUSIONS OF LAW
1. Pan-Oston Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers’ International Association, Local No.
433, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating employees about their union activities, by
engaging in surveillance of such activities, and by creating an
impression of such surveillance.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
giving employee Gary Ferguson a final written warning on April
3, 1998, and by discharging him on May 8, 1998, because of his
protected activity; and by giving employee Philip Mosby a final
written warning on April 3, 1998, because of his protected activ-
ity.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in cer-
tain unfair labor practices it is recommend that it be ordered to
cease and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully gave Gary
Ferguson a final written warning on April 3, 1998, and unlaw-
fully discharged him on May 8, 1998, I shall recommend that
Respondent be required to offer him immediate reinstatement to
his former position, dismissing if necessary any employee hired
to fill his position, or, if such position does not exist, to a sub-
stantially equivalent position, and to make him whole for any
loss of earnings he may have suffered by reason of Respon-
dent’s unlawful conduct, by paying him a sum of money equal
to the amount he would have earned from the time of his dis-
charge to the date of an offer of reinstatement, less net earnings
during such period, to be computed in the manner established by
the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).25 I shall also recommend that Respondent
be required to expunge from its records all references to its
unlawful final written warning given to Ferguson on April 3,
1998, and its discharge of him on May 8, 1998, and inform him
in writing that this has been done, and that these actions will not
form the basis of any future discipline of him.
It having been found that Respondent also gave employee
Phillip Mosby an unlawful final written warning on April 3,
1998, I shall recommend that it be required to remedy this of-
fense in the same manner as that stated above with reference to
the unlawful discharge of and final written warning to Gary
Ferguson.
I shall also recommend that posting of appropriate notices.
[Recommended Order omitted from publication.]

25 Under New Horizons, interest is computed at the “short-term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the
effective date of the amendment), shall be computed as in Florida Steel
Corp., 231 NLRB 651 (1977).