Stabilus, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2005

11-CA-020386 (N.L.R.B. Sep. 26, 2005)

JD(ATL)–43–05
Gastonia, NC

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES

STABILUS, INC.

and Cases No. 11-CA-20386
11-CA-20396
INTERNATIONAL UNION, UNITED AUTOMOBILE, 11-CA-20443
AEROSPACE & AGRICULTURAL IMPLEMENT 11-RC-6567
WORKERS OF AMERICA (UAW)

Ronald C. Morgan, Esq., for the General Counsel.
Charles P. Roberts, III, Esq., and John J. Doyle, Esq.,
for the Respondent/Employer.
James D. Fagan, Esq., for the Charging Party/Petitioner.

DECISION

Statement of the Case

MICHAEL A. MARCIONESE, Administrative Law Judge. This case, which involves
alleged unfair labor practices and election objections, was tried in Gastonia, North Carolina over
12 days, commencing November 15, 2004 and concluding January 13, 2005. Based upon
charges filed by International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America (UAW or “the Union”)1, a consolidated complaint and notice of hearing
issued on September 30, 20042 alleging that Stabilus, Inc., the Respondent, violated Sections
8(a)(1), (2) and (3) of the Act during a union organizing campaign at the company’s Gastonia,
North Carolina facility. Specifically, the complaint alleges numerous acts of interrogation,
surveillance, threats, promises and other conduct allegedly restraining, coercing and interfering
with employees’ exercise of their rights under the Act; assistance to and domination of
department advisory committees that are alleged to be labor organizations within the meaning
of the Act; the discriminatory grant of wage increases and the discriminatory suspension and
discharge of one employee. On October 13, the Respondent filed its answer denying the unfair
labor practice allegations. By order dated October 12, the complaint was consolidated for
hearing with election objections filed by the Union in Case No. 11-RC-6567.

The Union filed the petition in Case No. 11-RC-6567 on March 30, seeking to represent
a unit of employees employed by the Respondent at the Gastonia plant. Pursuant to a
1 The charge in Case No. 11-CA-20386 was filed on June 14, 2004. The charge in Case No.
11-CA-20396 was filed June 22, 2004 and the charge in Case No. 11-CA-20443 was filed
August 9, 2004.
2 All dates are in 2004 unless otherwise indicated.

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Stipulated Election Agreement approved on April 12, the Board’s Regional Director conducted
an election by secret ballot on May 20 and 22 among employees in the following appropriate
unit:

All production and maintenance employees, prototype employees, quality
employees, shipping and receiving employees, schedulers, warehouse employees,
and plant clerical employees employed by Stabilus, Inc. at its Gastonia, North
Carolina facility; but excluding all office clerical employees, manufacturing
engineers, special technical engineers, associate quality engineers, customer
service representatives, draftsmen, professional employees, guards and supervisors
as defined in the Act.

The Tally of Ballots cast at the election shows the following results:

Approximate number of eligible voters……………………………………………. 503
Number of Void ballots……………………………………………………………… 0
Number of Votes cast for International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America (UAW)……………………………… 242
Number of Votes cast against participating labor organization…………………. 244
Number of Valid Votes counted…………………………………………………….. 486
Number of Challenged ballots………………………………………………………. 2
Number of Valid votes counted plus challenged ballots………………………….. 488

The challenged ballots are not determinative of the results of the election.

On May 24, the Union filed timely objections to conduct affecting the results of the
election. After conducting an initial investigation, the Regional Director issued a Report on
Objections on October 12, approving the withdrawal of Objections 4, 5, 6, 8, 11 and 133 and
directing a hearing on the remaining objections. The Objections remaining for resolution are set
forth in Appendix A. As previously noted, the objections have been consolidated with the unfair
labor practice allegations.

At the hearing, all parties had an opportunity to call witnesses and cross-examine
opposing witnesses, to offer documentary evidence and present oral arguments as to
evidentiary and procedural issues. On March 11, 2005, the General Counsel, the Respondent
and the Charging Party filed well-written briefs advocating their respective positions. On the
entire record, after having considered the arguments raised on brief, I make the following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, manufactures gas springs for the automotive and
furniture industries at its facility in Gastonia, North Carolina where it annually purchases and
receives goods and materials valued in excess of $50,000 directly from points outside the State
of North Carolina. The Respondent 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.
3 The objections filed by the union included two items numbered 12. The second of these
was referred to by the Regional Director in his report as objection 13.

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II. Alleged Unfair Labor Practices

A. Overview

In May 2004, the Respondent employed approximately 600 employees at its Gastonia
plant. The Gastonia plant is part of the North American operations of a multinational corporation
based in Koblenz, Germany. The Respondent’s North American operations also included a
manufacturing facility in Mexico. The evidence in the record indicates that the Respondent at
one time had another manufacturing facility in Colmar, Pennsylvania, which was the subject of
an unfair labor practice proceeding. See Gas Spring Company, 296 NLRB 84 (1989). In his
brief, Counsel for the General Counsel requested that I take judicial notice of the Board’s
decision in that case, which found that the Respondent had failed and refused to reinstate, and
had delayed the reinstatement of, unfair labor practice strikers upon their unconditional offer to
return to work in October 1986. I have taken administrative notice of this prior case only for
background purposes and because the Board’s decision in that case was the subject of
discussion during the organizational campaign here. However, I will not rely upon the findings
and conclusions therein to establish animus, motive or any other element of the General
Counsel’s case because the events portrayed in that case were remote in time to the events at
issue here and there is no showing that individuals involved in the unfair labor practices found
there had any role in this case.

David Richeson was the Respondent’s president of North American operations during
the January-June 2004 period relevant to this case. At the time of the hearing, he was no longer
employed by the Respondent, having been terminated in about September. Reporting to
Richeson were two Vice Presidents. The next level of management consisted of ten directors,
including Douglas Lea, the Director of Human Resources. Lea has been the Respondent’s
Director of Human Resources at the Gastonia facility since March 2000. Tom Napoli was the
Respondent’s production manager during the organizing campaign with responsibility for the
manufacturing operations that employed the unit employees. The Respondent had three Focus
Area Managers reporting to Napoli, i.e. Brett Whobrey4, Reggie Ballard and John Nichols,
responsible for Final and Paint, Tubing and Main Assembly, and the Rod Department,
respectively. Below these managers were the frontline supervisors, four to eight per department,
who directly supervised the work of the unit employees.5 Finally, the Respondent employed a
number of lead persons in each department who acted as non-supervisory group leaders. The
lead persons were included in the stipulated unit.

The evidence in the record reveals that the Respondent’s employees began talking
about a union in January. The first unfair labor practice alleged in the complaint, that supervisor
Dennis Mehaffey threatened employees with plant closure, is alleged to have occurred in late
January. James Brymer, the Union’s International Representative in charge of the organizing
campaign who has since retired, testified that the Union held its first meeting with the
Respondent’s employees on February 16. The complaint alleges that several unfair labor
practices occurred around this time. The Union continued to hold regular meetings with the
employees over the next three months, until the election on May 20 and 22. The complaint
alleges that the Respondent engaged in surveillance of two of these meetings, one on March 10
at the Union hall in Mount Holly, North Carolina, and the other on May 18 at a park near the
4 Whobrey’s name is misspelled in the record as Red Jubri.
5 Lea identified the departments as the rod department, tubing and main assembly, final
assembly and paint, and warehouse and shipping department.

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Respondent’s facility.

Brymer testified that the Union distributed buttons, pins, stickers, hats and other
paraphernalia to employees at these meetings. Testimony from witnesses for both sides
establishes that many employees openly wore or displayed union buttons and stickers in the
workplace. These witnesses also testified that the Respondent generally did not interfere with
the wearing of buttons or stickers. The evidence indicates that the Respondent focused its
efforts at restricting the wearing of union tee shirts and hats pursuant to a purported uniform
policy. The testimony further revealed that, within the last few weeks before the election, alleged
discriminatee Dennis McSwain paid to have tee-shirts silk-screened with pro-Union slogans and
distributed these free of charge to other employees. Several of the unfair labor practice
allegations relate to the Respondent’s reaction to the display of these tee-shirts in and around
the Respondent’s facility.

Brymer also testified that, during the union meetings, he and other union representatives
advised employees to be on the lookout for unfair labor practices and solicited employees to
document any perceived unfair labor practice by making notes. The Union even distributed a
flyer entitled “KNOW what Managers, Supervisors, and Group Leaders Can NOT do” (emphasis
in original). These handwritten notes were collected by the Union and were the basis for many
of the objections and charges that were filed after the election. The General Counsel offered
some of these notes into evidence as corroborative of the testimony of his witnesses. I received
these documents over the Respondent’s objection, despite the hearsay nature of the evidence,
because the Respondent had the opportunity to cross-examine the declarant in each case. In
some cases, which will be pointed out later in this decision, the written notes contradicted the
testimony of the witnesses. They thus became a tool to test the credibility of the witnesses.

On March 31, the Union, through a group of 10-15 employees, hand-delivered a letter to
Richeson, the Respondent’s president, demanding recognition. The Respondent declined to
voluntarily recognize the Union and the petition was filed the same day. The period between the
filing of the petition and the election was marked by vigorous campaigning by both sides. The
bulk of the unfair labor practices alleged in the complaint occurred during this period. The
Union’s efforts were advanced by a number of employees who were members of the Volunteer
Organizing Committee, or “VOC”. In addition to handbilling and talking to other employees, the
VOC created a website which became a source of information for employees regarding the
Union, including dates and locations of meetings. This website could be accessed by anyone,
including the Respondent’s supervisors and managers. The evidence establishes that although
a number of employees were open and active in support of the Union, only one employee is
alleged to have suffered adverse consequences as a result of his protected activity. McSwain,
the alleged discriminatee who was fired several weeks after the election, did not even become a
union supporter until the closing weeks of the campaign. Brymer testified that he did not meet
McSwain until late April or early May. The allegation involving McSwain’s discharge was
perhaps the most hotly contested by the parties at the hearing. This allegations was also
perhaps the most difficult to decide and will be discussed in much detail later in this decision.

As noted above, the Respondent conducted a vigorous campaign to convince its
employees to vote against the Union. Lea initially testified that he first became aware of the
Union campaign in late February or early March, but conceded on cross-examination that it was
probably as early as mid-February when he learned that union authorization cards were being
circulated among the employees. Richeson also acknowledged being aware of the Union in
February. Lea testified that the Respondent began responding to the union’s organizing efforts
several weeks before the Union filed its petition. Part of the Respondent’s response was a
series of weekly captive audience meetings held throughout April and May at which power point

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presentations were made detailing the negative consequences of unionization. Several of the
complaint allegations relate to statements made by Richeson and Lea at these meetings. In
addition, there are multiple allegations of individual supervisors and managers making
statements to employees during this intense campaign that are alleged to have crossed the line
and threatened or coerced the employees in their choice in the election. In mid-April and mid–
May, the Respondent granted wage increases to maintenance employees and group leaders,
respectively. The General Counsel alleges that these increases were unfair labor practices
while the Respondent contends that the decision to grant the increases was in motion before
the advent of the Union.

The evidence presented by the Respondent indicated that, contemporaneous with the
Union’s organizing campaign, the Respondent was pursuing a process of enhanced
communication with employees to improve employee morale and working conditions. According
to Lea and Assistant Human Resources Director Kelly Rice, the Respondent announced in
January that it was going to conduct an employee survey. The Respondent did not conduct
such a survey, however, choosing to hold “roundtable meetings” with employees in each
department instead. The first of these roundtable meetings were conducted during the week of
February 1, in the final assembly department. The primary issue discussed at that time was
scheduling. On February 12, the Respondent announced that it would hold small group
meetings in each department to provide the opportunity for employees plantwide to raise issues
and concerns. These small group meetings occurred between February 16 and 24, about the
time the Union held its first meeting with the Respondent’s employees. After the small group
meetings, Lea prepared a document for management consideration listing a number of
recommendations for the Respondent to consider in response to issues raised by the
employees. Some of the issues raised and recommendations made involved the raises that
were implemented later and became the subject of unfair labor practice charges. Another of
Lea’s recommendations was to conduct more regular plantwide meetings to obtain feedback
from the employees. The first of these were held at the beginning of March. The Respondent
continued to communicate with its employees at these plantwide meetings throughout the
month of March, until it received the Union’s petition at the end of the month. At that point, the
Respondent shifted its focus to preparing for the election.

At the end of the hard-fought campaign, the election was held on two non-consecutive
dates, May 20 and 22. The resulting tally of ballots was so close it was a virtual tie. Following
the election, the Respondent invited several employees who had been active on both sides to
meet with Lea and Richeson. This was followed within a few months by the formal
establishment of “department advisory committees” which the General Counsel alleges
functioned as labor organizations which were dominated and controlled by the Respondent.
These committees were still meeting at the time of the hearing.

I will now review each allegation of the complaint. Because many of the allegations
based on the testimony of McSwain turn on credibility and because of the importance of
credibility resolutions to the outcome of the allegations regarding his suspension and discharge,
I shall discuss those allegations when reviewing the Section 8(a)(3) allegations.

B. Section 8(a)(1) Allegations

1.Interrogation, Impression of Surveillance and Threat of Plant Closure

Paragraph 8(a) of the complaint, as amended at the hearing, alleges that Human
Resources Director Lea interrogated employees in mid-February and early April, and that
Production Manager Napoli interrogated employees in early April. Only the first instance of

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alleged interrogation involved an employee other than McSwain. As previously noted, I will
address those allegations affecting McSwain later in this decision. The one allegation remaining
involved employee Rick Myers.6 Resolution of this allegation turns exclusively on credibility.

Myers was hired by the Respondent October 4, 1993. At the time of the hearing, he was
a training and certification coordinator in the tubing department, reporting to Heidi McMinn, an
assistant Human Resource Manager. McMinn in turn reported to Lea. Myers had held this
position for 5 years. He was an active supporter of the Union during the campaign, handbilling
and wearing a union button to work every day beginning about April 1. He was not a member of
the VOC, nor did he participate in the group which presented the Union’s demand for
recognition to Richeson on March 31. Myers signed a union authorization card on March 8 but
could not recall when he attended his first Union meeting.

Myers testified that, about mid-February, while he was in the outside smoking area, Lea
asked him what he felt about the Union drive. According to Myers, he was unaware of the union
campaign at that point in time so he responded to Lea’s inquiry by asking, “what union drive?”
Lea told Myers that some employees were trying to get people to sign cards to get a union in at
Stabilus. Myers recalled telling Lea about an earlier union drive, five to five and a half years
earlier, during which he attended a few meetings but had not been impressed by anything the
Union said so he didn’t support it. Myers testified that Lea then said that the Respondent had
been looking at property elsewhere and that “the only thing left to do if the Union gets in, is sign
the contract or paperwork and it’ll be done.” According to Myers, Lea said the Respondent
would move once this was done. This was Myers only conversation with Lea about the union
during the campaign.

On cross-examination, Myers recalled that there had been five other employees in the
smoking area when he first arrived but that all had left before Lea approached him. He could not
recall any of these other employees. Myers also acknowledged that he did not often have
conversations with Lea in the smoking area. Although employees had been discussing the
Union since January and the first Union meeting was held on February 16, about the same time
as this conversation, Myers claimed he had heard no rumors or talk of a union before this
conversation. According to Myers, he did ask two close friends, after his conversation with Lea,
about the Union. These friends told Myers that they had not said anything to him about the
Union because they believed he would not be interested because of the position he held, which
was assigned to the Human Resources department. Unlike other witnesses for the General
Counsel, Myers kept no notes, diaries or other written record of this conversation. He did
mention it to a member of the VOC after he started attending Union meetings and learned what
supervisors could not do during a campaign.

Lea denied having any conversation with Myers about the Union and “absolutely” denied
having any conversation with employees about the possibility of the plant closing or moving.
According to Lea, Myers is the “quiet type”. Lea testified that he rarely spoke to Myers in the 4
or 5 years he’s known him and the only conversations that they have had have been in passing
each other while going about the plant. On cross-examination, Lea did acknowledge having a
conversation with Myers on the smoking patio sometime in the spring. Lea conceded it could
have occurred in February. In any event, according to Lea, the conversation was no more than
a greeting and was not the conversation Myers claimed. With respect to the subject of plant
6 The incident involving Myers contains two other allegations that will be addressed here, a
statement alleged in paragraph 8(c) to have created the impression of surveillance, and a threat
of plant closure alleged in paragraph 8(e).

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closing, Lea acknowledged that he himself heard rumors from employees that the Respondent
was looking at property in Tennessee or Kentucky for a possible move. Lea testified that he
denied these rumors when asked about them by employees. Lea further denied in his testimony
that the Respondent was looking at other property for a new plant.

Respondent, on brief, concedes that Myers did not appear to be deliberately deceptive.
The Respondent argues, nevertheless, that his testimony should be disregarded because a
conversation as he described it was unlikely to have occurred. The Respondent points to the
alleged timing of the conversation, before the Union campaign was formally launched at
Brymer’s first meeting with the employees. The Respondent suggests that if Myers himself was
unaware of the Union campaign, Lea could not have known of it. Regardless of the source of his
information, Lea conceded, after significant effort on the part of General Counsel, that he was
probably aware of union activity among employees as early as mid-February. The Respondent
also argues that, in view of Lea’s limited interaction with Myers in the past, it was unlikely he
would have chosen Myers as someone with whom to discuss the Union campaign. The limited
nature of Lea’s prior communications with Myers does not persuade me that this conversation
did not take place as Myers recalled. On the one hand, Lea acknowledged being on the
smoking patio with Myers at about that period in time and that the two men had a conversation.
As the Respondent concedes, Lea is a gregarious individual and will talk to anyone he finds
himself with. I noted his loquacious nature at the hearing. Because Myers duties placed him
within the ambit of Lea’s department, it is conceivable that Lea would have considered Myers to
be someone with whom he could speak candidly about the union activity of which Lea had
recently become aware. Once Myers reveled to Lea his history of not supporting the Union, Lea
probably would have been emboldened to share more information with him, thus the talk about
other property being scouted by the Respondent. On balance, I find that Myers’ recollection of
this conversation is more plausible than Lea’s absolute denial and shall credit his version of the
conversation.

Having found that the conversation occurred as alleged by the General Counsel, the
question remains whether the statements of Lea amounted to unlawful interrogation. In
Rossmore House,7 the Board rejected a per se approach to allegations of interrogation. Instead,
the Board held that such allegations must be decided on a case-by-case basis, determining
whether an employer’s questioning of employees, under all the circumstances, would
reasonably tend to interfere with, restrain, or coerce employees in the exercise of their statutory
rights. Some of the factors to be considered in this analysis are the background of the
conversation, the nature of the information sought, the identity of the questioner and the place
and method of questioning. Id. Accord: Sunnyvale Medical Center, 277 NLRB 1217 (1985);
Westwood Health Care Center 330 NLRB 935, 939-940 (2000). Under this test, either the words
themselves, or the context within which they are used, must suggest an element of interference
or coercion.

There is no dispute that, at the time of this conversation, Myers was not an open union
adherent. In fact, his credible testimony establishes that he was unaware of the union campaign
at the time. Lea was the head of the Human Resources Department, a high-ranking official in
the chain of command for Myers’ job. Although the scene of the conversation, the smoking area
during a break, was not inherently coercive, the information sought, i.e. Myers personal views
and opinions on an ongoing attempt to organize the Respondent’s employees, probed deep into
matters that Myers had a right to conceal from his employer. Despite the casual, and seemingly
7 269 NLRB 1176 (198*), enfd. sub nom Hotel Employees & Restaurant Employees Union
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).

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spontaneous, nature of the questioning, it had the reasonable tendency to chill an employee,
particularly since no assurances were given that no adverse consequences would flow from
whatever answer Myers gave.

The question Lea asked must also be considered in the context of the remainder of the
conversation. The General Counsel alleges that Lea’s statement that “some employees were
trying to get some employees to sign cards…” created the impression of surveillance. The
Board’s test for such allegations is whether employees could reasonably assume from the
statement in question that their union activities had been placed under surveillance. Flexsteel
Industries, Inc., 311 NLRB257 (1993); Schrementi Bros., Inc., 179 NLRB 853 (1969). The Board
has found that a supervisor’s statement that contained only general or known facts, which the
supervisor claimed to have “heard”, could not lead an employee to reasonably believe that the
employer had embarked on a course of monitoring its employees’ union activities. Clark
Equipment Co., 278 NLRB 498, 503 (1986). Accord: The Register Guard, 344 NLRB No. 150
(July 28, 2005). Similarly, a supervisor’s statement indicating awareness of a rumor pertaining
to union activities of the employees would not create an impression of surveillance so long as
there is no evidence indicating that the Respondent could only have learned of the rumor
through surveillance. G.C. Murphy Co., 216 NLRB 785, 792 (1975). Applying this precedent to
the statement at issue here, I do not agree with the General Counsel that Lea’s remark about
ongoing union activity created the impression that the Respondent was surreptitiously
monitoring its employees’ union activities. The evidence in the record reveals that employees
had been discussing the union since January and the Union’s first formal meeting with the
employees occurred about the time of this conversation. The information conveyed to Myers
could have been obtained by Lea without any untoward surveillance. Thus it would not be
reasonable for an employee to believe that unlawful surveillance was the source of Lea’s
information. Accordingly, I shall recommend dismissal of this allegation of the complaint.

The conversation in which Lea asked Myer’s his views of the union organizing campaign
also contained another statement that the General Counsel alleges violated the Act, i.e. the
threat of plant closure implicit in Lea’s reference to the Respondent’s search for new property.
Regardless of the truth of the statement, Lea’s remark, that the Respondent was looking at
other property and only had to sign the paperwork if the Union got in, clearly had the tendency
to convey to an employee that the Respondent would rather close the plant and relocate than
deal with a union. This type of threat has routinely been found violative of Section 8(a)(1) of the
Act. Based on Myers’ credited testimony, I find that the Respondent did violate the Act through
Lea’s threat to Myers. This threat also supports a finding that Lea’s questioning of Myers as to
his thoughts on ongoing union activity was unlawful. What might otherwise be a spontaneous,
casual inquiry took on a coercive tone when uttered in the context of this threat. Accordingly, I
find that the Respondent unlawfully interrogated and threatened Myers during his mid-February
encounter with Lea.

2. Surveillance

The complaint alleges two instances of actual surveillance. The first allegedly occurred
about March 10 outside the union hall in Mt. Holly, North Carolina, and the second allegedly
occurred on May 18, a few days before the election, at Rankin Park near the Respondent’s
plant.

(a) March 10 incident

On March 10, the Union held a meeting for employees at its union hall in Mt. Holly, North
Carolina, about 15 miles from the Respondent’s plant. A group of employees who worked nights

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went to the meeting in a caravan. Several of these employees claimed to have seen Lea outside
a restaurant across the street as they were leaving the meeting. A written statement purporting
to document this was drafted the same day and signed by three employees, Laura Bollinger,
Jeffrey Scott Stiles and John Bloomer. These three employees provided the testimony in
support of this allegation. Lea, testifying for the Respondent, denied being anywhere near the
Mt Holly meeting on March 10. According to Lea, he was at a breakfast meeting of a local
employers’ association (Western Carolina Industries) in downtown Gastonia from 7:30 a.m. until
9:00 a.m., at which time he returned to the plant. Kelly Rice, the Respondent’s Assistant
Human Resources Manager at the time, and Bob Tierney, the Respondent’s Manager of
Environmental and Facilities, corroborated Lea’s attendance at the meeting. However, Lea
admittedly left the meeting alone and no one was with him on his return trip to the plant. Lea
also conceded that he had enough time to drive from his meeting to the Mt. Holly location by
9:30 AM, the time at which General Counsel’s witnesses claimed to have seen him there. The
Respondent also called Belinda Bumgardner, another employee who was at the union meeting,
to rebut this allegation. In addition, Clarence McClure, another employee who attended the
union meeting, was called as a witness by the General Counsel in support of other allegations in
the complaint. Although the General Counsel did not question him about this incident, the
Respondent inquired about it on cross-examination. Resolution of this allegation turns primarily
on credibility.

Bollinger was the first witness to testify about this incident. She has been employed by
the Respondent since July 25, 1994. At the time of the hearing, she was a training coordinator
for main assembly, a position reporting to Lea in the Human Resources department to which
she had only recently been promoted. At the time of the alleged unfair labor practice, Bollinger
was a machine operator in main assembly, reporting to supervisor Jim Kirkland. Bollinger was
an active and open union supporter, wearing a union button every day to work. She
acknowledged on cross-examination that no supervisors or managers ever said anything
negative to her about her button or union activities.

According to Bollinger, she went to the union meeting in Mt. Holly with about 5-10 other
employees after having worked all night. She testified that, as she was leaving the meeting at
about 9:30 AM, she heard co-worker John Bloomer say, “Hey y’all, Doug Lea is going into the
restaurant”. When she looked up, Bollinger saw a man she recognized as Lea from his gait and
posture walking into the restaurant across the street. Bollinger testified that the restaurant was
about 100 feet from where she was at the time, across a two-way road divided by railroad
tracks. Bollinger did not claim in her testimony to have seen Lea’s face. Bollinger testified that,
shortly after observing Lea, she, Bloomer and Scott Stiles, who was leaving the meeting at the
same time, returned to the union hall and wrote out a statement documenting this alleged unfair
labor practice. The statement she signed at the time, offered into evidence by the General
Counsel, is inconsistent with Bollinger’s testimony. In the statement, Bollinger and the others
claim to have witnessed Lea observing employees leaving the meeting. On cross-examination,
the Respondent’s counsel elicited other testimony that conflicted with testimony of later
witnesses. For example, Bollinger denied walking over to the restaurant and denied waiting
there while two or three other employees went into the restaurant to look for Lea. Bollinger
testified that she walked straight to her car. She also denied having any conversation with
Bumgardner about this incident.

Bloomer has been employed by the Respondent since 1998. At the time of this incident,
he was a maintenance technician, reporting to supervisor Joel Kendrick. He was promoted to a
maintenance lead position about two months before he testified at the hearing. Bloomer
attended union meetings and openly displayed his support for the Union by wearing buttons and
stickers to work. Bloomer testified that he also attended this meeting after working all night. He

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was in the same caravan of cars as Bollinger. According to Bloomer, as he was leaving the
meeting, at about 9-9:30 a.m., he saw Lea going into the restaurant with a woman. At the time,
Bloomer was on the sidewalk in front of the union hall, about 100 feet away. He was about to
cross the street headed toward the parking lot past the restaurant where the employees had
parked their cars. He recalled that Bumgardner was walking in front of him and that Bollinger
and Stiles were a few feet behind him. On cross-examination, Bloomer admitted that he did not
see Lea’s face. He also claimed that he recognized Lea from his posture and gait. On cross-
examination, Bloomer also testified that he, Bumgardner and McClure went into the restaurant
to look for Lea. He recalled that this happened about 5-10 minutes after the employees first saw
Lea. He and Bumgardner remained in the lobby while McClure searched the restaurant.
According to Bloomer, McClure returned and told them that Lea was not there. The three
employees then went outside and told the other employees who were there that Lea was not
there. On re-direct, the General Counsel was able to have Bloomer testify that someone could
have exited the restaurant unseen during the 5-10 minutes the employees stood in the parking
lot before Bloomer and the others entered the restaurant.

When shown the statement bearing his signature, Bloomer denied that he had signed it.
According to Bloomer, he learned that such a statement had been prepared when he went to
work that night, after this incident. Bloomer testified that the statement and his signature
appeared to be the handwriting of Bollinger. Although he did not sign the statement, Bloomer
testified that he agreed with its contents. Bloomer also testified that he wrote his own statement,
sometime after being shown the statement prepared by Bollinger, when a member of the VOC
told him he had to write a statement about the incident. The statement he prepared, although
shown to Bloomer at the hearing, was not offered into evidence. Bloomer testified further that
the employees had been told at the meeting on March 10 to be on the lookout for unfair labor
practices, in particular for spying by management and supervisors.

Stiles was the last of the General Counsel’s witnesses to testify on direct about this
incident. He has been employed by the Respondent since 1998 as a tubing operator. He
worked the same shift as Bollinger and Bloomer. At the time of this incident, Bill Vinesett was
his supervisor. According to Stiles, he was leaving the union meeting at about 9:30 a.m. when
he heard someone say, “there’s Doug Lea!” When Stiles looked up, he saw Lea across the
street, standing inside the glass doors of the restaurant, facing the employees who were leaving
the union hall. Stiles denied that Lea was walking into the restaurant, or that Lea was with a
woman. His recollection thus differs dramatically from that of the other witnesses. This
difference can not be explained by a difference in the timing of Stiles observation as he
acknowledged that Bollinger and Bloomer were with him when he saw Lea’s face. He also
placed himself at the same location, about 100 feet away from Lea. Stiles testified further that
he and Bollinger went back into the union hall after seeing Lea and wrote out the statement in
evidence. According to Stiles, Bollinger wrote the statement and the two signed it. Stiles did not
recall whether Bloomer was with them when Bollinger wrote the statement but he did not see
Bloomer sign it. Stiles recalled that, after 5 or 10 minutes, he went back outside and McClure
and other employees told him that they had gone into the restaurant and Lea was not there.

McClure has been employed by the Respondent since April 10, 1995 and was working
with Stiles in the tubing department during the union campaign. As noted above, McClure was
questioned about this incident during cross examination by the Respondent’s counsel after the
General Counsel did not ask any questions about the alleged surveillance on direct.8 McClure
Continued
8 Although the Respondent’s cross-examination regarding this matter exceeded the scope of
direct, I permitted counsel to inquire provided he took McClure as his witness and did not elicit

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Continued
testified that he walked out of the union hall with Bumgardner and that they were the last to
leave the meeting. By that time, according to McClure, the rest of the employees were already
across the street, outside the restaurant. Bollinger, Stiles and Bloomer waved to him to come
over. They told him that Lea was in the restaurant. At that point, Bumgardner tried to look
through the window into the restaurant but wasn’t able to see anything. McClure testified that he
then went into the restaurant to look for Lea. He confirmed that Bloomer and Bumgardner were
with him. According to McClure, he checked all areas of the restaurant, including the bathrooms,
and did not see Lea. When he came out of the restaurant, he reported this to the other
employees. McClure also testified that, although he and Bumgardner did not leave the union
hall until about five minutes after the others, he did not see Bollinger and Stiles come back into
the hall to write out a statement. On re-direct by the Charging Party’s counsel, McClure testified
that he had gone back to the restaurant after March 10 and determined that there was a back
exit that could have been used by someone without being seen by people in front of the
restaurant.

The Respondent called Belinda Bumgardner to testify about this incident. Bumgardner
has been employed by the Respondent for about 17 years. She was a machine operator in
tubing working the same shift as Bollinger and the others. Bumgardner testified, consistent with
McClure, that the two of them left the meeting a short time after Bollinger, Bloomer and Stiles.
She also recalled that, by the time they walked out of the union hall, the others were on the
other side of the street, on the sidewalk near the restaurant. Bumgardner testified that Stiles
was waving and hollering that Doug Lea was in the restaurant. When she and McClure caught
up with the other employees, Stiles and Bloomer repeated that they had seen Lea. Bumgardner
did not recall seeing Bollinger outside the restaurant. Bumgardner testified further that she tried
to look through the window but was unable to see anything in the restaurant so she suggested
they go inside. Bumgardner then entered the restaurant with McClure and Bloomer. As she and
Bloomer waited at the counter, McClure walked through the restaurant. Bumgardner testified
that when he returned, McClure said that Lea was not in there. According to Bumgardner,
McClure said he had also checked in the bathrooms and did not see Lea. When they came out
of the restaurant, they reported to the other employees that Lea was not there. Bumgardner also
testified that, not long after this incident, while handbilling for the Union outside the plant,
Bollinger told her that she had put Bumgardner’s name down on “the ULP” about seeing Lea at
the restaurant. According to Bumgardner, she told Bollinger not to put her name on the “ULP”
because she did not see Lea at the restaurant. After Bollinger told her that her name was
already on it, Bumgardner talked to Stiles and asked him if he put her name down for the “ULP”
and Stiles told her he had not. This is confirmed by the written statement in evidence that does
not include Bumgardner’s name.

Of all the witnesses who testified regarding this incident, I found McClure and
Bumgardner to be the most credible. The testimony of Bollinger, Bloomer and Stiles was not
consistent with one another, nor with the written statement that was purportedly prepared
contemporaneously. Because of these inconsistencies, their testimony is not reliable proof that
Lea actually surveilled the union meeting on March 10. In the context of the Union’s advice to
the employees to be on the lookout for such surveillance, it is possible that the employees saw
someone who looked like Lea and jumped to the conclusion that the Respondent was spying on
them. I find this to be more likely than that they deliberately fabricated evidence of such
surveillance. In this regard, I note that the testimony of Bollinger, Bloomer and Stiles appeared
to be genuine and sincere. I also found other aspects of their testimony to be credible.9 At the
the testimony through leading questions.
9 My credibility finding here is similar for Lea. Although I found many aspects of his

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_________________________
same time, it is clear from the testimony of McClure and Bumgardner, as well as Bloomer, who
entered the restaurant to investigate whether Lea was there, that Lea was not there.
Accordingly, because I find that the General Counsel has not sustained his burden of proof as to
this allegation, I shall recommend dismissal of that portion of paragraph 8(b) alleging
surveillance by Lea.

(b) May 18 incident

On May 18, two days before the start of voting in the NLRB-conducted election, the
Union held an all-day meeting at the community center in Rankin Lake Park. The park is
approximately a half mile from the Respondent’s facility. The date and location of the meeting
was well-publicized throughout the plant through flyers and by a posting on the VOC’s website,
accessible to all. The General Counsel offered the testimony of three witnesses, Kenneth
Bradley, Angelita Carnatzie and Ricky Gentle, that Reggie Ballard, the Respondent’s Focus
Area Manager, drove up the driveway next to the community center and parked his car outside
a window of the room where the meeting was being held. The General Counsel also put in
evidence a handwritten statement, signed by the three witnesses and a fourth employee, Roddy
Orr, who did not testify, purportedly documenting this incident.10 Ballard testified as a witness
for the Respondent, denying that he was anywhere near the meeting. Again, resolution of this
allegation turns on credibility.

Bradley was the first to testify about this incident. He has been employed as a tube line
operator since he started working for the Respondent in April 2000. Ballard had been his
immediate supervisor in the past. He was an active union supporter, a member of the VOC and
was among the employees who presented the Union’s demand for recognition to Richeson on
March 31. Bradley testified that, at about 2:00 p.m., while he was sitting inside the meeting
room, facing a row of windows, he saw Ballard’s distinctive red camaro drive up the dead-end
driveway, pull into a parking space, back out, turn around and drive back down the driveway.
Bradley claimed he was able to see Ballard’s face inside the vehicle, even though he was about
30 feet away. Bradley recalled that, at about the same time he saw Ballard, Gentle, who was
standing up at the time, said “there’s Reggie Ballard” and, that in response, the 25-30
employees in the room all looked and saw him.

Carnatzie, who is Gentle’s girlfriend, has worked for the Respondent since June 2000.
During the union campaign, she worked in the tool crib under supervisor Jim Wright. Carnatzie
testified, similarly to Bradley, that she was sitting in the meeting at about 2:00 p.m., listening to
Union organizer Brymer, when she saw Ballard’s distinctive red camaro pull in and out of the
parking lot. Unlike Bradley, Carnatzie did not say that she saw Ballard in the car. Carnatzie was
sitting next to Bradley while Gentle was up walking around. She testified that Gentle said, at
about the same time she witnessed Ballard’s car, that a “ulp” had been committed. According to
Carnatzie, she responded, “you just seen Reggie Ballard, didn’t you?” Carnatzie recalled that
there were about 15 to 20 people in the room at the time. Carnatzie estimated that Ballard’s
vehicle was about 30 feet away when she saw it.

Gentle has been employed by the Respondent since 1991. At the time of the campaign,
he was an electrical technician in the maintenance department, reporting to Joel Kendrick. He
testimony not worthy of belief, I found his denial of this allegation credible. The Board has
frequently recognized that a witness may be credible as to some things and not others.
10 No explanation was given for Orr’s failure to appear at the hearing in support of this
allegation.

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was also an active union supporter, being a member of the VOC and one of the employees who
initiated the campaign by setting up the first meeting with Brymer on February 16. Gentle’s
testimony differed slightly from the others. According to Gentle, he observed Ballard drive
around the building and park in the back next to a window, about 15 feet away. Gentle claimed
to have seen Ballard’s face and that he was parked outside the building for about 15 seconds
looking into the building through the window. Gentle testified, as did the others, that he made a
comment when he saw Ballard, i.e., “there’s Reggie Ballard!” and that other employees looked
when he said this.11 However, Gentle recalled that there were only 4-5 employees inside the
building when he saw Ballard surveilling the meeting. According to Gentle, there were about 10
other employees outside the building, smoking. Gentle acknowledged that Ballard’s very
distinctive car would be visible to anyone standing outside the building as it entered and left the
driveway.

Ballard, who was not a completely credible witness as to other aspects of his testimony,
credibly denied being at the Rankin Lake Park community center on the day in question. Ballard
admitted being familiar with the park and community center, having taken his son to play at the
adjacent playground more than 10 years before this incident. Ballard also acknowledged eating
his lunch there many times and even going to the park during the day at times when he needed
to get away from the plant. However, he adamantly denied driving by or parking at the
community center when the Union was holding a meeting there.

As with the other allegation of surveillance, I find that the General Counsel has not met
his burden of proving that actual surveillance occurred on May 18. The testimony of the three
witnesses seemed contrived and not very believable. In particular, I note that the only witnesses
called to establish this violation were all active union supporters, including two members of the
VOC, and that none of the other employees who were at the meeting, as many as 30 of them,
who were in a position to witness this shocking turn of events, came forward to testify about it.
What was most suspect was that the fourth employee who signed a contemporaneous
statement attesting to this unfair labor practice, Roddy Orr, was not called as a witness and no
explanation for his absence was given. Finally, I have taken into consideration the testimony of
Belinda Bumgardner who testified that, when she complained to Bradley about her name being
put on a “ULP" that she believed was not true, he replied that he “didn’t like to lie either, but
whatever it takes.”

Accordingly, based on the above, I shall recommend dismissal of that portion of
complaint paragraph 8(b) alleging surveillance by Ballard.

3. Additional threats of plant closure

In addition to the threat made by Lea to Rick Myers in mid-February, found unlawful
above, the complaint, at paragraph 8(d), alleges several other threats of plant closure, attributed
to supervisors Mehaffey (late January), Bob Hasson (February 18) and Ballard (April 8 and early
May). These allegations also turn on credibility.

(a) Mehaffey

Fred Sisk, a maintenance department employee since March 1995, testified that he had
a conversation with Dennis Mehaffey, his supervisor at the time, sometime around the end of
11 On cross-examination, Gentle testified that he said, “there’s a ulp. That’s Reggie Ballard
outside.”

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January. Sisk recalled that Robert Parrott, another maintenance employee, was also present.
According to Sisk, the conversation started out as a general discussion of the plant and low
employee morale. At some point in the conversation, Sisk told Mehaffey that, if things kept
going the way they had been going, with the Respondent moving people around from shift to
shift, etc., they might need a union in there. Sisk testified that Mehaffey replied by saying that he
felt if a union came into the plant, it would close within a year. According to Sisk, he was able to
recall the date of the conversation because he placed in the context of other events going on in
the plant, which were discussed during the conversation. Sisk also recalled that this
conversation occurred before any actual union activity got underway. On cross-examination,
Sisk acknowledged that Mehaffey was one of the best supervisors he’d ever had, that they had
a good working relationship, and that he found Mehaffey to be sincere.

Parrott, who was present for this conversation, was not called by the General Counsel
as part of his direct case. Instead, the Charging Party called him as a rebuttal witness,
ostensibly to rebut Mehaffey’s denial. Parrott testified that this conversation occurred at a later
time than Sisk recalled. According to Parrott, it was in late March, about three weeks after he
started wearing a union button, that Mehaffey approached him and Sisk at work and
commented about his union button. Parrott testified that Mehaffey said he “wished we wouldn’t
wear those buttons.” Then, according to Parrott, Mehaffey said “if the union gets in, Stabilus
would shut down and move to Mexico.” Mehaffey also told Sisk and Parrott that they had a good
job and good benefits. At that point, as Parrott recalled, Mehaffey and Sisk got into a little
argument and walked away. Parrott did not hear any more of their conversation.

Mehaffey admitted having a conversation about the union with Sisk and Parrott in
January, but he denied making any threats about the plant closing. According to Mehaffey, who
was no longer employed by the Respondent at the time of his testimony, he knew better than to
make such a threat because he had received “TIPS” training from the Respondent.12 Mehaffey
also claimed that he would not have told employees that the plant might move to Mexico
because he was convinced this would not happen. According to Mehaffey, the Respondent was
so busy, working seven days a week trying to keep up with production commitments, that it
would be impossible for the Respondent to shut down and move to Mexico.

Although there are discrepancies between the testimony of Sisk and Parrott regarding
this conversation, most notably as to timing, I found Sisk to be a credible witness. Parrott’s
conflicting testimony as to the timing of the conversation and the lack of detail he provided as to
the substance of the conversation, beyond repeating the alleged threat, makes his testimony
less reliable. For whatever reason, his recollection of this event was faulty. While this might
seem to doom the General Counsel’s case, there were significant credibility issues with
Mehaffey’s denial. The fact that he was no longer employed by the Respondent, and seemingly
had no reason to be untruthful, is not enough to make him a believable witness. What convinced
me that his denial was unworthy of belief was his stated rationale for not having made the
threat. There is no evidence in this record that the Respondent provided any training to
Mehaffey before he had this conversation with Sisk. In fact, the testimony of other supervisors
suggest he could not have received such training. In addition, Mehaffey’s claimed ignorance as
to the fact that most of the maintenance department employees supported the Union is suspect
in light of testimony from other witnesses for the Respondent that this was common knowledge.
Finally, Mehaffey claimed that the possibility of the plant closing was not even a matter of
discussion in the months leading up to the Union vote. This testimony was contradicted by
12 TIPS is an acronym for “Threats, Interrogation, Promises, and Surveillance”, often used
as short-hand for teaching supervisors what not to do during a union campaign.

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numerous other witnesses and by the text of the captive audience speeches given by Lea and
Richeson which specifically addressed the topic of plant closure.

Based on the credited testimony of Sisk, I find that the Respondent, through its
supervisor Mehaffey, in fact threatened employees with plant closure in or about late January.
The fact that Sisk and Mehaffey had a good relationship probably led Mehaffey to believe he
could speak freely with Sisk and his response to Sisk’s comment about employees needing a
union seemed genuine. Even if Mehaffey was expressing only his own belief as to the
consequences of unionization, his statement would reasonably tend to coerce an objective
employee in the exercise of their right to join or support a union. Because of his position of
authority, Sisk could reasonably believe that Mehaffey had knowledge of the Respondent’s
plans which would not be known to the employees, including a plan to close in the event of
unionization. Under these circumstances, I find that the Respondent violated Section 8(a)(1) of
the Act as alleged.

(b) Hasson

Three employees testified for the General Counsel regarding a conversation with Bob
Hasson, a Quality Engineer and admitted supervisor, that occurred in the outside smoking area
on February 18. This was two days after Union organizer Brymer’s first meeting with the
Respondent’s employees. The three employees were Tina Shuler, a quality lab technician
employed by the Respondent since July 1985, Donald Grant, a re-work operator employed
since April 1983, and Robin Braswell, a mini-machine operator who has worked for the
Respondent since September 1994. Although Shuler and Grant were members of the VOC,
Braswell was a union supporter with minimal union activity. These three long-term employees
testified consistently regarding this incident. According to them, they were in the smoking area
discussing the Union when Hasson joined them. After listening to their conversation, Hasson
said, if the Union came in, the Respondent would close the plant down and move to Mexico. At
that point, Hasson abruptly put out his cigarette and walked away. Grant then took a napkin that
was on the table and wrote out what Hasson had just said. Shuler, Grant and Braswell each
signed the napkin and later, when the statement was transcribed to a piece of paper, they
signed it again. This later statement is in evidence and corroborates their testimony.

Hasson did not deny being in the smoking area with these employees on or about
February 18. He also acknowledged that the employees were talking about the Union when he
joined them. According to Hasson, the employees asked his opinion of the Union. He responded
by telling them that he had helped close two plants, in previous jobs, that were unionized. He
denied telling the employees that the Respondent would close if a union were voted in. He also
denied linking the closure of those two plants to the fact they were unionized. Hasson also
claimed that he would not have made the threat attributed to him by the General Counsel’s
witnesses because he had received “TOPS” (sic) training and knew not to say this. On cross-
examination, Hasson admitted that he had not received TIPS or TOPS training from the
Respondent. According to Hasson, the last time he received such training was at least five
years before this conversation, at a time when he did not work for the Respondent.

I found the testimony of Shuler, Grant and Braswell regarding this incident to be more
credible that Hasson’s recollection. I note that all three testified consistently, that they
immediately documented the incident to preserve their recollection. All three were long-term
employees who generally impressed me as honest and candid witnesses. In contrast, Hasson’s
attempt to re-write history by claiming to have merely reported his experiences seemed
contrived to avoid liability for a threat. In light of his experience having worked at unionized
facilities that in fact closed, it is not a stretch to believe he would have told these three

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employees, whom he encountered discussing the union campaign, that the same fate would
befall them if they pursued their efforts to get union representation. I also note that this incident
occurred early in the campaign, before the Respondent had organized any concerted campaign
or conducted any training of its supervisors. It is more likely at that point in time that a
supervisor would be less circumspect in expressing his views, including the belief that the
Respondent would close rather than deal with a union. Accordingly, I find that the Respondent
violated Section 8(a)(1) of the Act on February 18 when Hasson threatened employees with
plant closure.

(c) Ballard

Stiles, who testified about Lea’s alleged surveillance of the March 10 union meeting, also
testified that he had a conversation with Ballard about the Union. At the hearing, he testified that
the conversation occurred on April 8. In an affidavit he provided closer to the event, he stated
that the conversation occurred on March 15. Stiles was unable to explain this discrepancy at the
hearing. Regardless of when it occurred, Stiles recalled that Ballard approached him while he
was working on the tube line. No one else was present. According to Stiles, Ballard first asked
him if it was okay if they talked about the Union. When Stiles said yes, Ballard asked what Stiles
thought about it. Stiles replied that he thought it would make the Respondent a better place to
work. Stiles then asked Ballard what he thought about the Union. Ballard responded that,
“personally he thought they would close the plant down and move.” Stiles, being a good
member of the VOC, immediately documented this incident in the notebook he kept by his
machine. Stiles’ note about this incident is dated April 8.

Ballard admitted that he frequently talked to employees about the Union because it was
a hot topic of conversation during the campaign. According to Ballard, because he had worked
his way up the ranks, he knew many of the employees well and did not hesitate to express his
belief that the employees did not need a union at Stabilus. Ballard also acknowledged talking to
the employees about his experience working at the nearby unionized Freightliner plant. At the
same time, Ballard denied having a conversation with Stiles like the one Stiles described. The
only conversation Ballard recalled having with Stiles was one in the smoking area during which
he claims to have told Stiles that the employees had a right to an election but that, in the end,
they would all have to work together.

Although I did not credit Stiles with regard to the alleged surveillance incident, I do not
agree with the Respondent’s contention that his testimony regarding that incident was a
“complete fabrication.” As discussed previously, I found that the employees, having come from
a meeting where they were told to be on the lookout for spying by management, saw someone
who looked like Lea and, in the heightened atmosphere of the campaign, sincerely believed it
was Lea. Stiles was perhaps overzealous when he testified that he observed Lea watching the
employees but I do not think he deliberately lied about it. Similarly, I do not believe he made up
the story about his conversation with Ballard. The handwritten note on the page from his
notebook appeared genuine. Stiles did not appear to be the type of individual who would go to
that much effort to fabricate evidence. Moreover, his description of the conversation is plausible
when considered against Ballard’s admission that he frequently talked to employees about the
Union and did not hesitate to express his views on the subject. He conceded that he did not
think the employees needed a union and he was willing to tell employees that every chance he
got. I also observed that Ballard seemed to be afflicted with the same personality trait as Lea,
i.e., a certain loquaciousness that led him to speak freely and often to anyone who would listen.
It is perfectly believable that he would not have been able to limit his conversations with
employees on the subject of the Union, about which he felt strongly, and avoid the pitfalls of the
Act’s restrictions. Accordingly, I find that Ballard did threaten Stiles that the Respondent would

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close if employees voted for the Union and that this threat violated Section 8(a)(1) of the Act. I
also find, based on the date on Stiles’ contemporaneous note, that this unfair labor practice
occurred on April 8.

Sisk, whom I’ve previously described as a generally credible witness, also testified to a
conversation with Ballard. Sisk testified that a few weeks before the election, he had a
conversation with Ballard in the final assembly area where he was working. According to Sisk,
Ballard asked him generally how things were going. Sisk, apparently believing that Ballard was
inquiring about the Union campaign, said he thought things were going real well and it looked
like the Union would be voted in. At that point, Ballard said that if the Union came in, the plant
would be shut down within the year. Sisk testified that he frequently talked to Ballard who he
knew well as someone who came up through the ranks. Ballard testified that he did not recall
having any conversation with Sisk about the Union. According to Ballard, he did not even know
that Sisk supported the Union. I find this denial patently incredible because Sisk testified that he
wore a union button on his uniform at least 2-3 times a week during the month of May.
Moreover, Sisk’s testimony about having frequent conversations with Ballard is consistent with
Ballard’s testimony describing his interactions with employees. As between the two witnesses, I
find Sisk to be the more credible. Accordingly, I find that the Respondent violated the Act as
alleged in early May when Ballard threatened Sisk with plant closure.

4. Bargaining From Scratch

Paragraph 8(e) of the complaint alleges that Lea and the Respondent’s president,
Richeson, “threatened employees that bargaining would start with a blank sheet of paper, or
from scratch, if employees selected the Union as their bargaining representative.” It is alleged
that these threats were made on various dates in April and May during captive audience
speeches. The General Counsel offered a number of witnesses who attended different meetings
at different times who generally had only a vague recollection of what was said at these
meetings. The General Counsel’s witnesses did recall, not surprisingly, the statements at issue.
The Respondent countered by placing these statements in context. The Respondent offered the
testimony of Lea and Richeson as well as the written text of their speeches and copies of the
overhead projections they used to illustrate their points.

The nine employees who testified for the General Counsel recalled a similar scenario
taking place at meetings conducted by Lea during the month of April and then by Lea and
Richeson around May 10.13 All of the employees recalled that either Lea or Richeson, or both,
at some point during these meetings, when discussing the topic of collective bargaining, held up
a blank sheet of paper and said, in more or less the same words: “this is what you start with
when you go into negotiations, not your current wages and benefits. What you come away with
depends on negotiations. The company will bargain hard for the best deal for the company and
it is up to the Union to bargain for the best deal for the employees.” On cross-examination, most
of theses witnesses acknowledged that Lea or Richeson, or both, told the employees that the
Respondent would bargain in good faith with the Union. Most also conceded that neither Lea
nor Richeson ever said that the employees would automatically lose the wages and benefits
they currently enjoyed if the Union were selected as their bargaining representative. The
13 The following employees testified regarding this allegation: Ricky Myers, Brian St.
Laurent, Jeffrey Scott Coggins, Tina Shuler, Charles Murphy, III, Karen Hagan, John Bloomer,
James McKinney and Ricky Gentle. In addition, the General Counsel offered into evidence
several statement signed by some of these witnesses purporting to document the unfair labor
practice.

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General Counsel’s witnesses also acknowledged that during at least some of these meetings,
overhead projections were used which addressed the same topic. Some of the witnesses
recognized the documents in evidence as the projections that were used and recalled Lea or
Richeson making the statements that appear in the projections.

Lea admitted holding three series of meetings with employees in April, after the Union
filed the petition. Although the subject of collective bargaining was not included in the text of
these meetings, he acknowledged that it did come up during question and answer sessions
from the employees. He conceded that his answers to such questions were not scripted but he
denied ever threatening employees at these meetings that they would lose benefits if they voted
for union representation. Lea did admit using a blank sheet of paper during some of the
meetings he conducted as a prop to show the employees how collective bargaining works.
According to Lea, what he told employees was that he had been in a union environment and
had negotiated with unions, that when you go into negotiations, you could come out with less or
you could come out with more but that the Respondent would bargain in good faith if the Union
won the election. Lea further acknowledged telling employees that the Respondent would
bargain hard in the best interests of the company and would let the Union bargain for the
employees.

Lea and Richeson testified that another series of meetings were held in May, closer to
the election and that Richeson was the primary speaker at these meetings. All of these
meetings were conducted through the overhead projections that are in evidence. One series of
meetings, conducted between May 6 and May 10, addressed the subject of bargaining. Lea
testified, on cross-examination, that he believed Richeson also used a blank sheet of paper
during these meetings when describing the bargaining process. Richeson, on the other hand,
denied using such a device, testifying that he “felt uncomfortable with any idea that you started
with a blank piece of paper.” Lea and Richeson denied that any statements were made during
these meetings suggesting that employees would automatically lose any wages or benefits
upon selection of the Union. The overhead projections contain no such threat. On the contrary,
they are carefully worded to convey the reality of bargaining, using quotations from Board and
court decisions on the subject.

The Board has addressed this type of allegation many times over the years. The weight
of the case law is that, without an actual or implied threat that employees will lose benefits if
they vote for union representation, or that union representation would be futile because the
employer will not bargain in good faith with a union, an employer’s description of the collective
bargaining process, including the reality that employees may end up with less as a result, does
not violate the Act. Wild Oats Markets, Inc., 344 NLRB No. 86 (May 26, 2005); Noah’s New York
Bagels, Inc., 324 NLRB 266, 267 (1997) and cases cited therein. See also La-Z-Boy, 281
NLRB338, 339 (1986) (Employer’s reference to a blank sheet of paper not unlawful). Even
crediting all of the General Counsel’s witnesses, I find that he has not met his burden of proof as
to this allegation. The use of the blank sheet of paper as a prop to describe the bargaining
process is not per se unlawful but must be considered in the context of the statements used by
Lea and Richeson and reflected in the overhead projections. In addition, the concessions made
by the General Counsel’s witnesses on cross-examination, i.e., that neither Lea nor Richardson
ever said that the Respondent would reduce their wages or take away benefits unilaterally upon
selection of a union as the employees’ bargaining representative, and that employees were told
that the Respondent would engage in good faith bargaining with the Union, are fatal to the
General Counsel’s case. I find nothing in the record here regarding what was said at these
captive audience meetings that would lead a reasonable employee to believe that the
Respondent was threatening them with reduced wages or a loss of benefits if they voted for the
Union or suggesting the futility of union representation. Accordingly, I shall recommend

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dismissal of this allegation of the complaint.

5. Threat of Job Loss in the Event of a Strike

Paragraph 8(f) of the complaint alleges that the Respondent, through President
Richeson, threatened employees with job loss in the event of a strike during a meeting on May
18.14 William Phillips was the only employee called by the General Counsel to testify regarding
this allegation. Phillips has been employed by the Respondent since January 1995. He was a
facilities technician reporting to Mike Ellington at the time of the union campaign. He was an
active and open supporter of the Union and a member of the VOC. Phillips testified that he
attended a meeting conducted by Richeson on May 18 at which the subject of strikes was
discussed. Phillips recalled that before the meeting, he and Tony Bollinger set up about 150
chairs for the meeting and that the room was full for the meeting. According to Phillips,
Richeson told the employees that, in the event of a strike, the Respondent could allocate
production to other plants, taking it away from the Stabilus plant, and run the plant at a minimum
with management and people who crossed the picket line. Phillips testified that Richeson also
told the employees that, “as long as they seen fit to leave production at the other plants, if it was
feasible, they could leave production at the other plants.” On cross-examination, Phillips testified
that Lea was also present and was operating the overhead projector while Richeson spoke.
Phillips acknowledged that Richeson appeared to be reading from the text on the projector as
he spoke.

The copy of the overhead used at this meeting, placed in evidence by the Respondent,
tends to corroborate Phillips’ testimony. The title of this presentation is “Job Security and
Strikes”. Included in the presentation are a number of items showing the UAW’s history of
strikes, news reports of UAW-represented plants that have closed, and the negative impact of a
strikes on employees generally and on the Respondent’s employees specifically. The following
overheads reflect the statements made by Richeson that Phillips described:

Stabilus Will Operate During Strike

• We would hire permanent replacements for economic strikers.
• We would use salaried employees and employees who crossed picket line.
• If necessary, we would temporarily relocate work to other Stabilus facilities

WE WILL DO WHAT IS NECESSARY TO CONTINUE OPERATIONS!

What If?

• If the Company discovers during the strike that work which was temporarily relocated to
other Stabilus facilities can be made at these locations more economically, the Company
has a right to propose that this work be permanently relocated, even if this means a loss
of jobs in Gastonia.

If the Union Doesn’t Agree

14 Supervisor John Nichols is alleged to have made a similar threat in early May. Because
the evidence shows that this threat was allegedly made in a one-on-one conversation with
McSwain, it will be addressed in connection with the allegations regarding McSwain’s discharge.

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• The Company would have an obligation to bargain in good faith over this proposal, as
well as any other contract proposals.
• If the Union refused to agree, and the parties reached good faith impasse, the Company
would have the right to implement its proposal!

On cross-examination, Phillips acknowledged hearing Richeson say that the company has the
right to propose leaving production at other plants. However, he did not recall Richeson saying
that the Respondent would propose this to the Union. Richeson denied making any threats that
employees would lose their jobs in the event of a strike. According to Richeson, he merely read
from the above overhead projection, word for word, without deviation.

Phillips testimony was generally credible and consistent with the text of the overhead
projection. Although Richeson’s statement, as recalled by Phillips, would at first blush imply that
the Respondent would relocate production permanently in the event of a strike, the full text of
this section of Richeson’s speech shows that such a threat was not made. As the Respondent
correctly points out, Richeson did nothing more than describe the rights an employer has to
continue operations in the face of a strike including the right to temporarily relocate production.
See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938); NLRB v. Brown, 380
U.S. 278, 283 (1965). In addition, Richeson also advised the employees that, if the Respondent
chose to permanently relocate the transferred operations, it would have to bargain with the
Union about it. I find that nothing in these statements crossed the line of permissible speech.
Accordingly, I shall recommend that this allegation of the complaint be dismissed.

6. Threats of Unspecified Reprisals

Paragraph 8(h) of the complaint alleges that Lea, Ballard and Nichols, on various dates,
threatened employees with unspecified reprisals for engaging in union activities. The alleged
threats attributed to Lea and Nichols involve conversations with McSwain which will be
discussed in connection with the allegations related to his discharge. Only the alleged threat by
Ballard will be discussed here. It is alleged that Ballard, whose credibility has already been
called into question, made this threat two days after the election, on May 24, to a group of
employees he encountered in the cafeteria. The General Counsel called one of the employees
who was present, James McKinney. The Respondent called as its witnesses, in addition to
Ballard, two other employees who were there, Ron Hudson and Craig Hammett. The fourth
employee who was present during this incident, Lisa Jenkins, was not called by any party.

McKinney has worked for the Respondent since September 1994. During the relevant
period here, he was working in the tubing department for supervisor Jimmy Walker. His union
activity was limited to signing a union authorization card at the beginning of the campaign.
McKinney testified that two days after the election, he was in the canteen eating lunch when
Ballard came over to the table where he was sitting. Also seated at this table were Craig
Hammett, Ronnie Hudson and Lisa Jenkins. As best he could recall, one of the people at the
table called Ballard over. According to McKinney, he was not paying much attention when
Ballard first came over to the table but at some point he heard Ballard say, “if the people would
work as hard in the plant as they did outside the plant organizing all these activities, we could
get more done, and that whoever supported the Union better cross their ‘t’s’ and dot their ‘i’s’.“

Ballard admitted having a conversation with a group of employees while they were
eating lunch a couple days after the election. Ballard could not recall everyone who was there

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but he did remember Jenkins and McKinney being there.15 Ballard also did not remember being
called over by one of the employees. Ballard testified that he was talking to the employees
about the Respondent’s production problems, i.e. regularly missing shipments, being in danger
of losing a quality rating for one of the Respondent’s customers, etc., when he said: “the
election is over with, one way or the other, you know, it doesn’t matter, we’ve all got to start
making these shipments, making the parts right because we have some quality issues that
caused us to do some late shipments. We better all start crossing our t’s and dotting our i’s, we
need to start doing it right the first time…” Ballard also recalled that later in the conversation, he
and the employees started talking about the Union supporters who were rallying outside the
plant during the election. Ballard testified that he told the employees at the table, “if we can get
the same enthusiasm in here, we can turn this thing around and we won’t lose our Ford
business or our GM business.”

The employee witnesses called by the Respondent tended to corroborate more than
contradict McKinney’s testimony. Hudson is a 10-year employee who works in main assembly.
He acknowledged that he supported the company during the union campaign although he was
not vocal about his opinions. He testified that he was eating lunch with McKinney, Hammett and
Jenkins a couple days after the election when Jenkins called Ballard over to the table while the
employees were talking about the election. According to Hudson, Jenkins asked Ballard what
company officials thought regarding the outcome of the election.16 Hudson testified that Ballard
replied that they were obviously pleased and that he himself was glad because he thought the
employees really didn’t need a union. Ballard then said that, without the Union, opportunities
would open for job advancement, etc. Hudson testified that Jenkins commented that some of
the union organizers in the plant were probably shaking in their boots to which Ballard replied,
while making a “hand’s off” gesture, “we’ve all got to dot our i’s and cross our t’s because we’re
in danger of losing our Q-1 status.”17 Hudson denied that Ballard said only the Union organizers
had to watch out. Hudson testified further that he then made a comment about the union
organizers who were standing outside the plant during the election, blowing horns, and carrying
on. Ballard responded to these comments by saying that he “wished they’d put that much
energy into their work.”

Hammett has been employed by the Respondent as a tube welder operator for 6 years.
Ballard was his focus area manager, one level above his immediate supervisor. Hammett also
recalled that someone called Ballard over to the table and asked him how “upper management”
felt about the election. Although Hammett claimed that he was talking to his wife on the cell-
phone on and off during this conversation, he recalled two comments by Ballard. The first
statement he recalled Ballard making was that if people would apply themselves in the plant like
they did outside on the road, then we would get more production, or get more done. The other
comment Hammett recalled was in response to a question from one of the employees about
how they felt about people still wearing union badges and stuff. According to Hammett, Ballard
responded that “everybody needs to cross their t’s and dot their i’s.” A little later in the
conversation, Ballard said, “we’ve got to get back to business and get production rolling.”

15 Ballard recalled that another employee, Keith Nix, was there. The other witnesses who
were there do not identify Nix as being present.
16 As noted at the beginning of this decision, the tally at the election showed the Union lost
by 2 votes with two challenged ballots. This conversation occurred before the Union filed its
objections to the election.
17 The Q-1 status was a certification the Respondent needed to remain a vendor for Ford
Motor Company.

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Both Hudson and Hammett testified that, after this incident in the cafeteria, they heard
rumors in the plant that Ballard had threatened retaliation against union supporters and that
someone had complained to Human Resources about it. On cross-examination, McKinney
acknowledged that he was also aware of these rumors. Hammett testified that was called to the
Human Resources office and asked about this conversation. Doug Lea and Heidi McMinn, a
Human Resources Assistant, were there along with Ballard and the employee who complained,
Steve Blakely. According to Hammett, Lea asked him if Ballard had said anything about
“retaliation”. Hammett said he did not hear “retaliation”. Lea said it was obviously a
misunderstanding. Before Hammett left the room, Lea assured him the Respondent had no
intention of retaliating, that they just wanted to get production going again.

Of all the witnesses who testified about this incident, I found Ballard the least credible.
As noted above, he did not impress me as a generally credible witness. Moreover, his testimony
about this particular conversation was contradicted on several points by the employee
witnesses who testified for the Respondent. McKinney, although he recalled only a small part of
the conversation, was a credible witness. I note that he was not a strong union supporter and
had no reason to fabricate his testimony. In addition, Hammett’s recollection of the critical
statement about “crossing t’s and dotting i’s” is very similar to that of McKinney. Specifically,
Hammett recalls this statement being made in response to a specific question from one of the
employees about how the Respondent felt about employees still wearing union badges. Despite
Ballard’s denials and Hammett’s and Hudson’s attempts to make this comment more general,
the clear implication, when considered in the context of the entire conversation, is that the union
supporters, whose activities were apparently blamed for the Respondent’s production
difficulties, had better watch out. Why else would Ballard suggest they apply the “energy” they
had exhibited in their union activities to their work activities? I find, as alleged in the complaint,
that the Respondent threatened employees with unspecified reprisals because of their union
activities through Ballard’s post-election comments in the canteen.

7. Threat to Change Working Conditions

Paragraph 8(i) of the complaint alleges that the Respondent, through supervisor Joel
Kendrick, threatened employees in the maintenance department on May 19 with a change in
their working conditions if they selected the Union as their bargaining representative. The
General Counsel relies on the testimony of Bloomer to establish this allegation. Bloomer
testified that on the day before the polls opened, i.e. on May 19, his supervisor, Kendrick,
approached him on the production floor and said that he would appreciate it if Bloomer voted no
in the election. According to Bloomer, Kendrick also said that, depending on the outcome of the
election, the maintenance crew was going to go back into the maintenance shop and be under a
maintenance directive and would no longer be out on the floor taking orders from the production
supervisors. According to Bloomer and other maintenance department employees who testified,
this statement referred to a change in operations that had taken place before the onset of the
Union campaign. In the past, maintenance employees were supervised by a maintenance
supervisor. Under the new system, which it is undisputed was not liked by the maintenance
employees, they had to take orders from the production supervisors in the departments to which
they were assigned. In addition, the production supervisors could make the maintenance
employees operate machines and do other production work to fill in for production employees
who were out or on break. There is no dispute that the maintenance employees’ unhappiness
with this arrangement had been the subject of discussion between the employees and
supervisors as well as within management for some time. Bloomer conceded that he was aware
that Kendrick had been attempting to revert to the preferred system before this conversation.

Kendrick denied making the statements attributed to him by Bloomer. He acknowledged,

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however, that he was aware that the maintenance employees did not like working under
production supervisors and being required to do production work. Kendrick testified that he was
in the process of changing the organizational structure to one preferred by the maintenance
employees at the time of the election and that, after the election, the Respondent did revert to
the old structure, i.e. with maintenance employees taking orders from maintenance supervisors
only. This change was fully implemented by August, about five months after the election.
Kendrick denied that the outcome of the election had anything to do with the change.

Although I found Bloomer generally credible as a witness, his testimony does not
establish that any “threat” was made. On the contrary, it appears the change that Kendrick told
Bloomer “depend[ed] on the outcome of the election” was a change the employees wanted. If
anything, Kendrick’s statement amounted to a promise of benefit, not a threat. The complaint
does not allege such a violation. However, even if the complaint could be read to include such
an allegation, I can not find that a promise was made based on Bloomer’s testimony. The
statement described by Bloomer is ambiguous. It is unclear what Kendrick meant when he said,
“depending on the outcome of the election.” Significantly, he did not tell Bloomer that the
Respondent would implement the desired change if the employees voted against union
representation, or that the Respondent would keep the status quo if the employees voted for the
Union. As the Respondent argues, this statement merely indicates that the Respondent was not
taking any action until the issue of union representation was decided, which it would be perfectly
lawful to do if no decision had been made before the onset of union activity. There is no
allegation, nor evidence, that the Respondent had decided, before it became aware of the Union
campaign, to change the supervision of maintenance employees and suspended implementing
that change in order to influence the results of the election. Under these circumstances, I do not
find that any threat or promise was made in Kendrick’s conversation with Bloomer. Accordingly,
I shall recommend dismissal of this allegation of the complaint.

8. Disparate Enforcement of Work Rules and Related Allegations

Several paragraphs in the complaint allege violations with respect to the promulgation or
application of various rules. At paragraph 8(j), it is alleged that the Respondent disparately
enforced work rules regarding the use of food and drink in work areas and employee postings
on bulletin boards. Paragraph 8(m) alleges that the Respondent prohibited employees from
wearing pro-Union t-shirts.18 Finally, at paragraphs 8(o) and (p), the General Counsel alleges
that the Respondent prohibited employees from talking about the Union at work and threatened
them with discipline if they did.

(a) Disparate Enforcement of Work Rules

Brian St. Laurent has been employed by the Respondent in the maintenance department
since June 1999. He was an active and open Union supporter. During the campaign, he was
assigned to work in the final assembly area. As described above, he had dual supervision, from
Mehaffey, the maintenance supervisor, and Cathy Crumbley, a production supervisor in final
assembly. St. Laurent testified that, on April 1, he arrived for work at about 7:00 p.m with a
Wendy’s bag and a container of pepsi. As he sat down at a table in the maintenance work area,
off the production floor, to eat his dinner, Crumbley came over and told him he was not allowed
to eat or drink on the production floor, that he had to take it to the cafeteria. Jerry Lockridge,
18 The complaint also alleges, at paragraph 8(n), that Lea promised McSwain he would not
be terminated if he removed his Union t-shirt. As with the other allegations involving McSwain,
this will be discussed later in the decision.

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another union supporter, was present. Although Lockridge also had his dinner with him, he had
not started to eat when Crumbley approached them.19 St. Laurent testified that he observed
more than 10 other employees drinking beverages in non-Stabilus containers at the same time
yet Crumbley did not talk to any of them about it. St. Laurent also testified that, even after this
conversation, he observed employees eating and drinking in the production area without being
told they could not do this. According to St. Laurent, he spoke to Lea about this incident later the
same evening. St. Laurent told Lea that he had no trouble playing by the rules as long as
everyone played by the same rules. Lea told St. Laurent he would take care of it. According to
St. Laurent, he heard nothing further after this conversation.

On cross-examination, St. Laurent acknowledged being aware of the Respondent’s
policy generally prohibiting food and drink on the production floor. He was also aware that the
Respondent had adopted a policy allowing employees to have water or other beverages in their
work area only if they used a company-provided spill-proof container. The Respondent placed in
evidence an October 21, 2003 memo to employees regarding the use of the Stabilus water
bottles. According to St. Laurent, however, these rules were not always followed. Clarence
McClure corroborated St. Laurent in this regard by testifying that he routinely carries food and
beverages in non-Stabilus containers throughout the work area, in view of supervisors, without
anyone saying anything to him about it. James McKinney also testified that he has taken a pepsi
container on the floor just about every day and has consumed food on the production floor at
least twenty times, including at times when supervisors were present. According to McKinney,
no supervisor has ever said anything to him about this. St. Laurent did concede, during cross-
examination, that Crumbley was a “my way or else” type of supervisor who strictly enforced the
rules. He also admitted that he was eating his dinner shortly after arriving for work even though
his scheduled break wasn’t until 10:00 p.m.

Crumbley, testifying for the Respondent, recalled an incident where she saw St. Laurent
sitting at a work table with a Wendy’s bag, a hamburger and a drink. She admitted that she
approached him, reminded him of the policy against food in the work area, and told him he
could take his dinner to the cafeteria. St. Laurent left and that was the end of the conversation.
Crumbley claimed that she is generally a stickler when it comes to enforcing work rules. The
Respondent placed in evidence a number of documents that Crumbley drafter to document her
enforcement of various rules in 2001, 2002 and 2003. However, as the General Counsel
correctly points out, none of these memos deal with the food and beverage policy at issue. The
Respondent’s witnesses did not contradict the testimony of St. Laurent, McClure and McKinney
regarding other employees being permitted to have food and non-Stabilus drink containers in
the production area.

As the Respondent concedes, resolution of this allegation does not turn on credibility.
There is no dispute that Crumbley told St. Laurent he could not eat his dinner in the production
area, even though he was at a table away from any machines. There apparently is also no
dispute, since the General Counsel’s witnesses were not contradicted on this point, that
employees have been known to violate the unwritten policy regarding food and the written policy
on water bottles. There is not a shred of evidence that the Respondent had ever enforced these
rules before April 1 when St. Laurent, wearing his union buttons, attempted to eat his dinner.
While the allegation may seem trivial, it must be considered in the context of the other
allegations to be discussed showing a general crackdown by the Respondent on union
supporters after the Union filed its petition. In fact, this incident occurred the day after a group of
19 Although Lockridge testified as a witness for the General Counsel, he did not testify
regarding this incident.

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employees presented the Union’s demand for recognition to Richeson and two days after the
petition was filed. Under the circumstances, I find that the Respondent did disparately enforce
its work rules on April 1 when Crumbley prohibited St. Laurent from eating his dinner in the work
area.20

The complaint also alleges disparate enforcement of rules regarding the posting of
employee notices on bulletin boards. There is no dispute regarding the facts related to this
allegation. Stiles testified that a few days before the May 20 election, he posted two documents
from the NLRB and a newspaper article about the upcoming election on a bulletin board near
his machine. Bill Vinesett, his supervisor, removed them at Ballard’s direction. Vinesett testified
that he did this because the items were posted on the wrong bulletin board and did not have a
stamp from the Human Resources department indicating approval for posting. Although Stiles
and his work partner McClure testified that they had seen other personal items posted on this
particular bulletin board without being removed before the Union campaign, their testimony
lacked specificity and detail. No other employees testified that the Respondent allowed non-
work related notices to be posted without approval from Human Resources.

The Respondent’s employee handbook contains the following rules regarding the
posting of notices on bulletin boards:

Actions that will result in disciplinary action include:

…………

• Posting of unauthorized material on company bulletin boards or other
company property; Defacing or removing company notices without
authorization.

…………

Solicitation and Distribution of Literature
………..

• All literature and material that an associate wishes to be posted must submit
all information to Human Resources for approval prior to posting. Human
Resources will date and post all information in the proper areas.

There is no dispute that the Respondent did permit other Union supporters, including Ricky
Gentle, to post union notices on the bulletin board with prior approval. The Respondent argues
that this demonstrates the non-discriminatory application of its rules.

The Board, in St. Joseph’s Hospital, 337 NLRB 94, 95 (2001), reaffirmed the principles
applicable to this type of allegation, as set forth in Honeywell, Inc., 262 NLRB 1402 (9182), enfd.
722 F.2d 405 (8th Cir. 1983):

20 The Respondent points out that St. Laurent wasn’t even supposed to be eating dinner
when this incident occurred because his break was not until 10:00 p.m. However, Crumbley did
not chastise him for taking an unscheduled or unauthorized break, indicating her acceptance of
this alleged violation of work rules. Her only concern at the time was his having food and a
drink, a concern she did not express to any other employees.

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In general, there is no statutory right of employees or a union to use an employer’s
bulletin board. However, where an employer permits its employees to utilize its
bulletin boards for the posting of notices relating to personal items such as social or
religious affairs, sales of personal property, cards, thank you notes, articles, and
cartoons, commercial notices and advertisements, or, in general, any nonwork
related matters, it may not validly discriminate against notices of union meetings
which employees also posted. Moreover, in cases such as these an employer’s
motivation, no matter how well meant, is irrelevant.

Accord: Miller Industries Towing, Inc., 342 NLRB No. 112 (*, 2004).

The evidence here establishes that, while the Respondent allows employees to post all
kinds of personal nonwork-related notices on company bulletin boards, it routinely requires that
such notices be reviewed and approved by the Human Resources department to ensure against
offensive or inappropriate material being posted. The testimony of Gentle confirms that the
Respondent was willing to approve union material for posting when it was submitted. Because
there is no dispute that Stiles did not seek approval before posting the notices that Vinesett
removed, I find no violation in this incident. Accordingly, I shall recommend dismissal of this
aspect of paragraph 8 (j) of the complaint.

(b) Restrictions on Wearing Union T-shirts

Paragraph 8(m) of the complaint alleges that Lea, Nichols and supervisor Jimmy Walker
prohibited employees from wearing union t-shirts on various dates in May. The allegations
regarding Lea and Nichols involve McSwain and will be discussed later in this decision.
Employees Braswell and Nix testified regarding the Walker incident. Braswell and Nix testified
that, on May 22, the second day of voting in the Union election, McSwain gave them each one
of the pro-Union t-shirts he had made up. Although both employees acknowledged being aware
of the Respondent’s uniform policy, they put the Union t-shirt on before going to work that day.
Braswell testified that she thought employees were allowed to wear these shirts because of the
election. Braswell and Nix wore the t-shirt for most of the day, until about 3:00 p.m., when
Walker, their supervisor, told Nix to change into a Stabilus shirt. Nix reported this to Braswell
and she also changed her shirt. Braswell testified that Walker later approached her and told her
that she could still wear the Union shirt as long as she wore a Stabilus shirt over it. Walker
corroborated the employees regarding this incident. According to Walker, he did not say
anything to Braswell or Nix earlier in the day because he thought the Respondent was allowing
this deviation from the uniform policy because it was election day. When he learned that there
was no change in policy, he enforced it.

There is no dispute that the Respondent has maintained a uniform policy for some time
preceding the Union campaign. The policy is set forth in the employee handbook and requires
employees to wear only shirts and hats with the company logo. The Respondent maintains this
policy to present a uniform appearance to customers who frequently visit the plant and to instill
a sense of team work among employees. Although a number of employees testified that either
they, or other employees, had worn non-Stabilus shirts and hats at work, the exceptions to the
rule appear to be rare. Most employees acknowledged that they were expected to wear only
company-logo clothing at work. At the same time, the Respondent’s witnesses acknowledged
that it did not require temporary employees to wear company clothing. At the time of the union
campaign, there were temporary employees in street clothes working side-by-side with the
Respondent’s employees in their Stabilus uniforms. The Respondent’s witnesses acknowledged
that a visitor to the plant would not be able to tell which employees were temporary or
permanent. It is also undisputed that the Respondent has lifted its prohibition on non-company

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clothing during other special occasions. For example, when the hometown Carolina Panthers
were in the Super Bowl in 2004, employees were permitted to were clothing with the team’s
logo. Employees were also permitted to depart from the uniform policy on the anniversary of the
September 11 terrorist attacks. Finally, employees have been known to wear costumes at
Halloween without interference by the Respondent.

The Board and the courts have consistently held that an employee’s right to wear union
insignia at work is protected by Section 7 of the Act. Absent “special circumstances”, the
promulgation or enforcement of a rule prohibiting the wearing of union insignia violates Section
8(a)(1). Brandeis Machinery & Supply Co., 342 NLRB No. 46 (July 21, 2004), enfd. 412 F.3d
822 (7th Cir. 2005). The special circumstances exception is a narrow one and a rule restricting
the right of employees to wear union clothing or paraphernalia is presumptively invalid. To
prevail, the respondent must show that the rule is necessary to maintain production or
discipline, or that the wearing of union insignia would unreasonably interfere with a public image
which the employer has established as part of its business plan. Quantum Electric, Inc., 341
NLRB No. 146, slip op., at 11 (June 3, 2004) and cases cited therein. Accord: Ogihara America
Corp., 343 NLRB No. 91 (November 30, 2004).

Although the Respondent’s uniform rule is neutral on its face and there is evidence that
the Respondent has endeavored to enforce this rule on a consistent basis, I nevertheless find
that Walker’s statements to Braswell and Nix violated the Act under this well-established
precedent. The Respondent has demonstrated no special circumstances that would justify such
a restriction on employees’ right to display their support for the Union. There is no claim that the
uniform rule was necessary for production or discipline. The Respondent’s claim that it wanted
to portray a uniform look to visitors and instill a sense of team work is undermined by the fact
that no effort was made to ensure that temporary employees, who performed work
indistinguishable from permanent employees, presented the same image. I also note that unlike
other cases where the Board or the courts have upheld such restrictions on this basis, the
Respondent’s employees did not work directly with customers or interact with the public as part
of their job duties. See Con-Way Central Express, 333 NLRB 1073 (2001); United Parcel
Service, 312 NLRB 596, 597 (1993). Although there is no dispute that employees were
permitted to wear union buttons and to display union stickers on their clothing and tool boxes,
this does not excuse the prohibition of union clothing. Respondent has not shown any special
circumstances that would justify such a partial ban. Accordingly, I find that the Respondent’s
restriction on employees’ wearing of Union t-shirts violated the Act as alleged in the complaint.

(c) Restrictions on Union Talk

There is no dispute that Lea held a meeting of the maintenance department employees
working on the night crew on April 1 to address the subject of union activity in the workplace.
Three employees who were at the meeting testified for the General Counsel, i.e. St. Laurent,
Lockridge and Bloomer. There were a total of 8-10 maintenance employees at the meeting
along with production supervisors Crumbley and Vinesett. All three employees recall Lea saying
that they were not allowed to discuss the Union on the production floor. He told them they could
talk about the Union on breaks, in the canteen and out in the parking lot, but not on the
production floor. St. Laurent and Lockridge recalled that Lea said he would respect their rights if
they respected his, and that “work time is for work.” Bloomer, unlike the other employees,
recalled that Lea told the employees they could discuss the Union on the floor if it didn’t interfere
with production and if the person they were talking to didn’t object. The employee witnesses
also recalled that Lea told them he came to the plant that night because he had received a call
to come in. He would not tell the employees who called or what the complaint was that initiated
his unusual visit. Lea also told the employees that he would be meeting with the production

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employees to convey the same message but there is no evidence that Lea met with any other
employees that night.

All three employees, as well as others who testified for the General Counsel, said that
employees had always been free to talk about non-work subjects while they were working as
long as it did not interfere with production. However, this was not something employees had
previously been told. Rather it appears it was more in the nature of common-sense
understanding on the part of employees that you could converse freely as long as you were
getting your work done. The Respondent’s supervisors did not contradict this understanding of
the practice at the Respondent’s plant.

Lea testified that he went to the plant that night, an admittedly unusual event, because
he had received a call from supervisor Crumbley complaining that employees were standing
around talking about the Union and work was not getting done. Crumbley contradicted this
testimony when she denied calling Lea. Crumbley did talk to her manager, Brett Whobrey, after
observing a maintenance employee standing around the tool crib for 30 minutes. She also
claimed to have an issue with the maintenance guys in her area standing around the machines
talking to the operators. She did not know what they were talking about but apparently assumed
it was related to the Union campaign. It was Whobrey who called Lea based on his belief that
the employees were discussing the Union during these incidents. Lea denied telling the
employees that they could not talk about the Union on the production floor. According to Lea, he
explained to the employees that the Respondent had to make shipments, that he was aware of
the union activity and would respect their right to campaign, distribute information, etc. on
breaks, in the canteen and on the property, but he wanted them to respect his right to perform
work. Lea testified that he told the employees if they could not agree to that, then “we need to
draw up our battle plans right now because I’m respecting your right to campaign and I’m asking
you to respect our right to run a business and make shipments.”21 Although Whobrey and
Crumbley corroborated Lea’s version of the meeting, it took leading questions from the
Respondent’s counsel to get Crumbley to parrot the words Lea claimed he used. When first
asked what Lea told the employees, Crumbley said, “they could do it [talk about the Union] on
their break time, in the parking lot, anytime that it was non-working production floor area or work
time.” Lea, Whobrey and Crumbley all acknowledged being aware that the maintenance
department employees overwhelmingly supported the Union.

It is well-established that an employer violates Section 8(a)(1) of the Act if it imposes
restrictions on employees’ conversations that prohibit union talk while allowing other non-work
related topics to be discussed in the work place. Industrial Wire Products, 317 NLRB 190
(1995)) See also Opryland Hotel, 323 NLRB 723, 729 (1997). Such rules are much broader than
a non-solicitation rule and unduly interfere with employees right to engage in protected
concerted activities. As the Court of Appeals recently said, in affirming a Board order finding
such a violation:

[An employer] is fee to adopt nondiscriminatory policies that forward its legitimate
objectives of maintaining plant productivity and discipline. However, those policies
may not target, either through design or enforcement, activity protected by the Act.
Because the oral rule promulgated by Muraski was directed only at discussions
concerning the Union, the NLRB’s conclusion that the prohibition violated the NLRA
is supported by substantial evidence.

21 Bloomer recalled Lea making a similar statement about “drawing battle lines”.

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Brandeis Machinery & Supply Co. v. NLRB, 412 F.3d supra, at 834.

There is no dispute that the focus of Lea’s meeting with the maintenance employees
was union conversations between the maintenance employees and production employees.
Although Lea may have told the employees he was concerned about such conversations
interfering with production, he expressed no such concern about the multitude of other non-work
discussions that took place in the plant on a daily basis. He was clearly singling out union talk
and conveying the message to the employees that such conversations were prohibited in the
work place. All of the employees who testified already understood that they could not stand
around, “shooting the breeze” for 20-30 minutes instead of working and all of them denied that
they had done anything like that. I do not credit the testimony of Crumbley and Whobrey that
employees generally, or maintenance employees in particular, were standing around talking
instead of working on April 1. Instead, I find that what concerned Crumbley and Whobrey was
the content of employee conversations, i.e. the Union. This meeting occurred the day after the
employees as a group went to Richeson and sought voluntary recognition of the Union and two
days after the Union filed the petition with the NLRB. Moreover, the Respondent only met with
employees in the maintenance department whom it knew overwhelmingly supported the Union.
The Respondent also was aware that, because of the nature of their work, the maintenance
employees had the opportunity to move about the plant and speak to employees in many
different departments. The Respondent used its putative concerns about production to single
out these employees and restrict them from communicating the Union’s message to their fellow
employees. Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act, as
alleged, when Lea told the maintenance employees on April 1 that they could not discuss the
Union on the production floor.

The complaint alleges that Lea also threatened an employee, on April 1, with discipline if
he talked about the Union on work time and in work areas. This allegation is based on the
testimony of Scott Mayes. Mayes had been employed by the Respondent since October 2000
and was working in the tubing department at the time of the campaign. He was a member of the
VOC and in the group that presented the Union’s demand for recognition to Richeson on March
31. Mayes testified that, on April 1, at about 10:40 p.m., Lea approached him at his work station
and asked to speak to him. Mayes’ machine was running at the time. He and Lea stepped away
from the machine. According to Mayes, Lea said he looked upon Mayes as one of the leaders of
the organizing committee. Lea then proceeded to tell Mayes the things the employees could not
do on the floor for the Union. Specifically, Lea told Mayes he could not talk about UAW
proceedings or organize the employees at work, that all this had to be done off the clock, on one
of Mayes’ breaks, before or after work, or in the parking lot. Mayes documented this
conversation in writing when he took his next break. A few days later, when another member of
the VOC asked Mayes if he had turned in his notes of the conversation yet, Mayes wrote out
another statement to be sure. Both handwritten statements, which are in evidence, are
consistent with his testimony at the hearing.

Lea admitted seeking out Mayes on the night of April 1, after his meeting with the
maintenance department employees, because he considered him a union leader. Lea claims he
told Mayes the same thing he told the maintenance employees, i.e. that he respects Mayes’
right to campaign and that he wanted Mayes to respect his right to allow people to work. He
denied telling Mayes that he could not talk about the Union at work.

I credit Mayes’ version of this conversation. It was consistent with the two statements he
wrote close in time to the event. There was nothing in his testimony or demeanor to suggest that
the written statements or testimony were a fabrication. At the same time, Lea’s testimony was
generally not reliable as most of his answers appeared well-rehearsed so as to avoid admitting

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any violation of the Act. Because of the timing of his conversation with Mayes, admittedly soon
after the meeting with the maintenance employees, and the fact he singled Mayes’ out as a
union supporter, I find that this conversation was part of the Respondent’s effort, soon after the
Union made known its desire to represent the employees, to quash any effort by pro-union
employees to organize their co-workers. Significantly, despite Lea’s claimed concern for
production, he only spoke to union supporters about not “interfering with production” by
discussing the Union. As noted above, such efforts by an employer to target union c-related
conversations, while allowing other non-work conversations, violates Section 8(a)(1) and I so
find.

Several weeks later, the Respondent again found an opportunity to caution union
supporters about conversations supposedly interfering with production. It is undisputed that, on
April 18, Crumbley spoke to St. Laurent and Lockridge, the two maintenance employees
assigned to her department, individually, about speaking to production employees. According to
St. Laurent and Lockridge, Crumbley told each of them that they were not to talk to the
operators. Both conversations occurred around 6:30 a.m., near the end of the shift. No
explanation was given by Crumbley for this new restriction. Lockridge conceded on cross-
examination that in response to this new directive, he told Crumbley that from now on he would
not even speak to the operators about work-related issues. Crumbley replied that was not what
she meant, that he could still speak to the operators about work, he just couldn’t stand around
talking to them. According to both St. Laurent and Lockridge, Crumbley’s directive was a
departure from past practice in which the maintenance employees were encouraged to
communicate with the production employees to facilitate a better relationship and enhance their
ability to do their jobs, i.e. performing maintenance and making repairs to the machines run by
the operators.

Crumbley admitted talking to both St. Laurent and Lockridge and acknowledged being
aware that they were union supporters. According to Crumbley, she spoke to Lockridge after
observing him standing and talking for 25 minutes with one of the operators, Stephanie
Hawkins.22 According to Crumbley, she asked Lockridge if there had been a problem with
Hawkins’ machine. When he said no, Crumbley said, if there’s no problem, there’s work to do,
you can’t just stand around talking. Lockridge responded by telling Crumbley that in that case,
he just wouldn’t talk to the operators. Crumbley told Lockridge that he needed to talk to the
operators about work. Crumbley then spoke to St. Laurent because she claimed he was
Lockridge’s lead. Crumbley told St. Laurent about her conversation with Lockridge. She also
told St. Laurent that they needed to stay busy and that, if they didn’t have any work to do, she
would find them a project. She admittedly did not say anything to Hawkins about this even
though Hawkins was a participant in the conversation. She also did not talk to any other
maintenance employees who worked in her area.

I do not find Crumbley’s testimony about St. Laurent’s and Lockridge’s asserted
interference with production believable. I find that this was a post-hoc justification for her
interference with these two union supporters right to talk to their fellow employees. The
Respondent has not shown by objective evidence that union-related conversations by St.
Laurent, Lockridge or any other maintenance employees disrupted operations or interfered with
the work of other employees. Since there is no dispute that the respondent has always tolerated
non-work related talk among its employees, as long as work was getting done, Crumbley’s
singling out of two union supporters to limit their interaction with other employees amounted to
22 When asked about this by the Respondent’s counsel on cross-examination, Lockridge
denied that he stood around talking to an operator for twenty minutes.

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unlawful interference in violation of section 8(a)(1) of the Act. Crumbley’s conduct in this regard
was simply a continuation of Lea’s efforts since April 1 to limit union talk among the
employees.23 Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act on April
18, as alleged in the complaint.

The complaint also alleges that maintenance supervisor Mehaffey attempted to limit
employees’ right to talk about the Union during two separate incidents in May. Both involved
employee Scott Sisk. Sisk testified that in early May, the day after attending one of the
Respondent’s meetings with employees, Mehaffey approached him at work and said, “ it’s
nothing personal between you and Doug Lea, but you’re no longer allowed to talk to more than
one person at a time on the floor, until after the election.” Later that month, on May 21, the day
between the two voting sessions in the election, Mehaffey approached Sisk again. According to
Sisk, Mehaffey told him it would be “in his best interest”, not to talk to any body else about the
Union until after the election was over. Mehaffey also advised Sisk that there would be not
disciplinary action taken at this time, but he should avoid talking about the Union. Sisk testified
on cross-examination that Mehaffey told him that some employees had complained about things
Sisk had said. When Sisk asked who complained or what he said that had offended others,
Mehaffey would say only that it was something Sisk said about the Union. Sisk denied that
Mehaffey warned him not to “intimidate” or “harass” employees. According to Sisk, Mehaffey
said he was not to speak to anyone until after the election.

Mehaffey denied ever having any conversation with Sisk or any other employee about
where or when they could talk about the Union. According to Mehaffey, he tried to avoid the
topic of the Union altogether. Mehaffey also specifically denied telling Sisk that he was not
allowed to talk to more than one employee at a time until after the election. Mehaffey testified
that the only conversation he had with Sisk on the subject was the one Sisk described as
occurring on May 21. According to Mehaffey, he spoke to Sisk after Whobrey told him that
employees in final assembly were complaining that Sisk was threatening them. Whobrey told
Mehaffey he wanted him to put a stop to it.24 Mehaffey testified that he met with Sisk and told
him complaints had been filed and that people felt threatened and intimidated by his comments.
Mehaffey told Sisk he had no intention of taking any formal disciplinary action at that time but he
advised Sisk to think about what he said to people. He told Sisk not to say anything that would
make people feel uncomfortable. Mehaffey recalled that Sisk was apologetic and told Mehaffey
he did not know what he could have said that would make anyone feel threatened. Mehaffey
acknowledged being aware of Sisk’s support for the Union, because Sisk told him about it.
However, he claimed to be unaware that most of the other maintenance employees under his
supervision supported the Union. This testimony is surprising in view of the testimony of other
supervisors and managers, such as Lea, Whobrey and Crumbley, that it was common
knowledge that the maintenance employees were overwhelmingly in favor of the Union.

As with the earlier allegation involving Mehaffey and Sisk, I found Sisk to be more
credible. Mehaffey’s feigned ignorance as to the union support of the employees he supervised
23 Shuler and Mayes both testified that Lea told employees, at meetings they attended
during the month of April, that they could not talk about the Union at work, that these
conversations were limited to break times and non-work areas. The complaint does not allege
these incidents as separate violations of the Act. Nevertheless, they tend to support the General
Counsel’s argument that the Respondent generally restricted its pro-union employees activities
within the plant.
24 Whobrey corroborated this portion of Mehaffey’s testimony and identified the two
employees who had complained about Sisk “bothering them” about the Union.

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is unbelievable. The first conversation Sisk had with Mehaffey, in early May, is consistent with
the other evidence showing a pattern of the respondent’s supervisors singling out pro-union
maintenance employees and restricting their interactions with other employees. It makes sense
that the Respondent would do this. After all, the maintenance employees had much more
mobility and frequent opportunity to communicate with the more stationary production
employees. If the Respondent allowed this group of pro-union employees to freely converse, as
it had in the past, the Union campaign might be successful. Thus, it was in the Respondent’s
interest to limit as much as possible the ability of the maintenance employees to talk to their co-
workers. I thus find that the Respondent violated Section 8(a)(1) of the Act in early May when
Mehaffey restricted Sisk’s right to talk to other employees about the Union.

There is no dispute that Mehaffey talked to Sisk on May 21 about his union
conversations with other employees. Although Mehaffey claims he merely advised Sisk of the
complaints of other employees and urged him to be careful what he said, I find based on Sisk’s
testimony that he went further and told Sisk that it “would be in his best interest not to talk to
anyone about the Union until the election was over.” This was a veiled threat of discipline.
Because the Respondent has not shown that Sisk conversations with other employees were
threatening or intimidating, this warning was overly broad and would reach even protected union
conversations. Accordingly, I find that the Respondent also violated Section 8(a)(1) of the Act by
Mehaffey’s May 21 threat of discipline if Sisk persisted in talking to other employees about the
Union.

9. Restrictions on Employee Movement and Closer Supervision

(a) Monitoring and Supervision

Paragraph 8(k) of the complaint alleges that the Respondent violated Section 8(a)(1) of
the Act by “more closely supervising and monitoring the work of pro-union employees.” Two
supervisors are allegedly responsible for this conduct, i.e. Bill Vinesett and Jon Nichols. The
latter’s action involved McSwain and will be discussed later in this decision along with the other
allegations involving McSwain. McClure and Stiles, who worked together in the tubing
department, on the same line as McSwain but on a different shift, testified regarding Vinesett’s
conduct.

McClure and Stiles testified consistently that Vinesett’s conduct toward them changed
noticeably once they openly displayed their support for the Union by wearing buttons, etc.
According to McClure and Stiles, they rarely saw Vinesett during their 12-hour shift. McClure
testified, for example, that if he needed to speak to Vinesett, he had to search for him. McClure
would usually find Vinesett in the supervisor’s office or in the smoking area. During the height of
the Union campaign, however, in April and May, Vinesett would frequently come to their work
area and check the paperwork, examine parts they produced and walk or stand near the
machines they were running. McClure and Stiles further testified that Vinesett also began
following them on breaks and to the restroom. As soon as the election was over, according to
these employees, Vinesett reverted to his former ways. McClure and Stiles acknowledged on
cross-examination that, despite this apparent closer supervision, Vinesett never took any
adverse action against them, nor criticized their performance or work habits.

There is no dispute that Vinesett did not become McClure’s and Stiles’ supervisor until
sometime in February, around the start of the campaign. He was only their supervisor for about
4-5 months, until July. Vinesett acknowledged that he spent more time in their work area, that
he reviewed paperwork and checked parts. However, Vinesett claimed this had nothing to do
with their support for the Union, of which he was admittedly aware. Instead, according to

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Vinesett, he did this because he was new to the department and wanted to learn the operation
he was supervising. Vinesett also admitted going on meal and smoking breaks at the same time
as McClure and Stiles but claimed this was something he routinely did with all employees.25

I found Vinesett’s explanation for his activities during the Union campaign unbelievable.
He had worked for the Respondent for 10 years, had been a supervisor for two years and, at the
relevant time period was supervising employees in rod and tubing, similar departments.
Moreover, Stiles and McClure testified that it was not necessary for Vinesett to review their
paperwork or check their parts because this is what the lead persons were supposed to do. The
Respondent argues that the testimony of McClure and Stiles is “unlike that of any other witness”
so therefore it’s unlikely that Vinesett was more closely monitoring or scrutinizing them. The
Respondent argues further that the employees merely perceived Vinesett’s harmless efforts to
learn the job as being union-motivated. I disagree. The testimony of McClure is consistent with
the pattern of the Respondent’s behavior toward the maintenance department, toward other
leading union supporters like Scott Mayes and, as will be shown, toward McSwain. The
Respondent, by telling a union supporter he could not eat lunch where he had routinely eaten
before, telling employees who were normally free to converse with their co-workers that they
could not talk about the Union, and standing around watching and monitoring the activities of
McClure and Stiles all amount to efforts by the Respondent to crack down on union supporters
and inhibit their ability to organize their fellow employees.

Based on the above, I find that the Respondent violated Section 8(a)(1) of the Act by
more closely supervising and monitoring the work of pro-union employees during the April-May
period prior to the election.

(b) Restrictions on Movement

Paragraph 8(l) of the complaint alleges that the Respondent, through supervisor Mike
Ellington, “restricted the movement of pro-union employees in the work areas of the plant” on
May 21, the day in between the two voting sessions. Employees Tony Bollinger and William
Phillips testified regarding this allegation.

Bollinger and Phillips are facilities maintenance technicians, the only two in the
department. They are supervised by Ellington, the Facility Manager. These are the only
employees that Ellington supervises. Bollinger and Phillips are responsible for maintenance of
the physical plant, including the exterior of the building. Bollinger testified that, at about 9:30
a.m. on May 21, Ellington approached him in front of the waste treatment center door and told
Bollinger that he and Phillips could not be on the floor that day. When Bollinger asked why?
Ellington responded, you just can’t be on the floor and that if they were, he (Ellington) would get
in trouble. Bollinger testified that he had never before been told that he could not be on the floor.
He also testified that many of their regular job duties would require them to be on the floor at
some point in the day, such as removing hazardous waste from the paint line. Bollinger relayed
Ellington’s instruction to Phillips and he and Phillips worked outside the plant, cleaning a
fountain and sweeping the back parking lot, that day. Phillips corroborated Bollinger regarding
the instructions relayed by Ellington that day. There is no dispute that Ellington usually
conveyed work instructions to one or the other and expected the instruction to be relayed to the
other.
25 McClure and Stiles, because of the nature of the operation they ran, had to take breaks
separately. Vinesett did not explain why he needed to go on break with both employees or how
he found the time to go on breaks with other employees as well.

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Ellington denied specifically telling Bollinger or Phillips that they could not be on the
production floor on May 21. He had no recollection of any conversation he had with either of
them that day. There is no dispute that Phillips was a very active supporter, being a member of
the VOC, and that Bollinger openly displayed his support for the Union by wearing buttons,
having a union sticker on his tool box , handbilling and speaking to other employees about the
Union during breaks. As with the other maintenance department employees, the facilities techs
were highly mobile in the job and usually roamed freely through the plant, interacting with other
employees as they went about performing their duties.

I find no reason to discredit Bollinger or Phillips, who both impressed me as credible
witnesses. They would have no reason to fabricate this incident since they are still being
supervised by Ellington on a daily basis. Ellington’s denial was self-serving. Accordingly, I find
that Ellington in fact instructed Bollinger, a and indirectly Phillips, to stay off the floor on May 21.
I find that this instruction was consistent with the pattern found above of the Respondent trying
to limit the opportunities pro-union maintenance employees had to campaign for the Union. On
May 21, there had already been one day of voting with another scheduled the next day. The
Respondent may have believed that the vote was close and was attempting to prevent a union
victory by keeping these two union supporters away from other employees who had yet to vote.
I find that this conduct violated Section 8(a)(1) of the Act as alleged in the complaint.

10. Solicitation of Grievances via Formation of Employee Committees.

Paragraph 8(q) of the complaint alleges that various supervisors, on various dates
before and after the election, “initiated, sponsored, promoted and formed department advisory
committees for the purpose of soliciting employee grievances and promising to remedy
employee grievances.” Because several of the incidents that occurred before the election
involved conduct directed toward McSwain, these allegations will be discussed and resolved in
connection with the other allegations involving him. The remainder of the allegations covered by
paragraph 8 are inextricably related to the Section 8(a)(2) allegation in paragraphs 13 and 14. I
will address those allegations together in the last section of this decision.

C. Section 8(a)(3) Allegations

1. Wage Increases

The complaint alleges, at paragraph 11, that the Respondent granted pay raises to its
maintenance employees on or about mid-April, and to its lead operators on or about mid-May in
violation of Sections 8(a)(1) and (3) of the Act. There is no dispute that the Respondent gave its
employees in these two categories wage increases in April and May, respectively. The issue is
whether the increases were granted for discriminatory reasons and/or to influence the outcome
of the election, or whether the raises were part of a plan already in place before the Respondent
became aware of the Union’s organizing campaign.

At the beginning of 2004, before the employees began their organizing activities, the
Respondent maintained two pay systems, one for production jobs and the other for
maintenance employees. As described by Lea, the production employees’ wage rate was
determined under a “pay-for-skills” system consisting of five levels (job classifications). Within
each level, employees could increase their rate of pay by obtaining additional certifications
showing that they had acquired new skills. The Respondent’s 24 lead operators were all
classified as Level IV with their individual rates of pay ranging from $16.32 to $19.53 per hour,
depending upon the number of certifications each possessed. Because of differences in the

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number of skills, machines and employees in the different departments, some lead operators
were able to progress along the pay scale faster than others, leading to some dissatisfaction
among the leads.

The Respondent’s maintenance employees were paid under a “non-pay-for-skills”
system, according to Lea. Under this system, maintenance employees were classified either as
a Level V maintenance technician or a Level VI maintenance specialist.26 Within each level,
employees progressed at one-year intervals without being required to demonstrate additional
skills. To progress from a level V to a Level VI, however, a maintenance employee had to have
an associates degree or equivalent experience in electronics. Joel Kendrick, who was a
maintenance supervisor during the campaign and became the Assistant Maintenance Manager,
testified that the primary difference between Level V and Level VI was that the higher level
required expertise or training in electronics. Because 90% of the maintenance work in the plant
was mechanical rather than electronic, these additional skills were seldom utilized.
Consequently, Level V technicians were frequently required to perform the same work as Level
VI specialist, often working side-by-side, without receiving the higher pay. Needless to say, this
engendered considerable unhappiness among the maintenance technicians. According to
Kendrick, this issue had been around for several years before 2004.

As noted at the beginning of this decision, the Respondent embarked upon a new and
improved employee communication program about the time its employees started talking about
the need for union representation. In the course of employee meetings held in January and
February, lead operators and maintenance employees voiced their dissatisfaction with the
current pay system. Thus, Lea and other management personnel were well aware of these
concerns when they first learned of the Union campaign.

(a) Maintenance Employees’ Raises

Charles Murphy, who was a Level V maintenance technician during the campaign,
testified in detail regarding a meeting that the Respondent’s acting maintenance department
manager, Ed Twist, held with the maintenance employees on February 20. At this meeting,
Twist announced that the respondent had developed a new job description combining the Level
V and Level VI classifications. Twist told the employees that the Respondent would provide on-
site and off-site training to current Level V techs so that they could perform the Level VI work.
According to Murphy, Twist told the employees that he expected it would take about a year for
the Level V techs to be performing Level VI work. When Murphy asked Twist if he would receive
Level VI pay for performing Level VI work, Twist put up his hand and said he was not there to
talk about money. Murphy’s testimony regarding this meeting was substantially corroborated by
the other maintenance employees who testified.27 Twist was not called as a witness in this
proceeding. Kendrick, who was at the meeting, corroborated the employees’ testimony that
Twist refused to discuss pay in response to employee questions. Although Kendrick did not
recall Twist saying that the employees had to complete training before receiving Level VI pay,
he did recall Twist telling the employees that he expected all Level Vs to be trained to perform
Level VI work.

The General Counsel’s witnesses testified consistently that nothing else was said after
this meeting about the newly combined job classification or about their rate of pay. They also
26 Level V techs were paid at the rate of $19.53 per hour and Level VI specialist received
$20.09 per hour.
27 St. Laurent, Lockridge and Gentle also testified about this meeting.

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agree that no additional training, either in-house or off-site, was provided before the election. It
is undisputed, however, that all maintenance employees, except for the two facilities
maintenance employees, received a raise in mid-April. The employees learned of the raise
when they received it. When Bollinger and Phillips, the facilities maintenance employees, found
out that the other maintenance employees had received a raise, they went to Human Resources
about it. Phillips testified that, when he asked Kelly Rice why he and Bollinger didn’t get a raise,
Rice replied that they were in a different classification. According to Phillips, Rice also said that
if their supervisor didn’t have a problem with it, they would get the raise as well. Phillips and
Bollinger then spoke to their supervisor, Mike Ellington, who agreed that they should get the
same raise as the other maintenance employees. Bollinger and Phillips received the same raise
in their April 22 paycheck without being required to undergo any additional training. Rice
essentially corroborated Bollinger and Phillips, acknowledging that the facilities maintenance
employees were not initially included in the pay raise and were only given an increase after they
complained about this.

Kendrick testified for the Respondent and essentially confirmed the testimony of the
General Counsel’s witnesses. Kendrick testified that, although a decision was made by
February to address employee complaints by combining Level V and Level VI into one
classification, no decision was made regarding a change in pay at that time. In fact, according to
Kendrick, Twist was opposed to giving the employees any more money before they were trained
and qualified to do Level VI work. Kendrick testified that he disagreed with Twist and believed
that the employees should be receiving the same rate of pay if they were doing the same work.
Kendrick recalled that, sometime in March, after the jobs had been combined, two maintenance
employees, Steve Parris and Robert Green, requested a meeting to discuss their complaints
about the different rates of pay in the maintenance department. At this meeting, Twist adhered
to his position that the employees had to prove themselves before getting a raise. After this
meeting, Kendrick spoke to Lea and Richeson about his disagreement with Twist over the pay
issue. According to Kendrick, it was at this point that a decision was made to give the Level V
techs a raise, bringing them up to the Level VI rate of pay. It was also around this time that
Twist was moved to a different position and Kendrick took over management of the
maintenance department.

Although the stated rationale for giving a raise to maintenance employees was to
address the employees’ complaints that they were all doing the same work without receiving the
same pay, the Respondent gave its Level VI maintenance employees a $.50 per hour raise at
the same time that it raised the Level V pay. Kendrick testified that the Level VI employees
received a raise to compensate them for additional training they were expected to provide to the
Level V techs. He referred to this as payment for “mentoring”. However, on cross-examination,
Kendrick was unable to point out what additional training the Level VI employees provided to the
Level V employees to justify the increase. Although Kendrick claimed that some training was
provided to the Level V employees, he could not recall whether it was before or after the raise
was implemented. Kendrick also testified that he did not know why the facilities maintenance
employees received a raise in April because they did not maintain machines and therefore were
not required to have Level VI training or skills. Kendrick did not know that Bollinger and Phillips
received the same increase until afterward.

Lea also testified about the maintenance department raises, but his testimony was not
consistent with that of Kendrick. According to Lea, the decision was made to combine Level V
and Level VI in March, after he was called into the meeting with the two maintenance
employees that Kendrick described. Although he claimed that he was aware Kendrick and Twist
had been discussing the issue for some time before this, it was only after this meeting that a
decision was made. Lea also testified that it was Richeson who decided to go ahead with a

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wage increase over the objections of Twist. According to Lea, Twist’s objection to giving a raise
to Level V technicians was based on a lack of training funds to bring them up to Level VI skills.
Lea testified that the Level VI employees were given an extra $.50 an hour to assist with training
and address these concerns. Although Kendrick and Lea claim that the decision was made in
March to go forward with the increases, it was not until mid-April that the employees actually
received the raises.

There is no question that Lea, Richeson, Kendrick and the rest of the Respondent’s
management were aware of the Union campaign at the time they made the decision to
implement these increases. As noted above, Lea acknowledged he was aware of union talk
among the employees as early as mid-February and Kendrick admitted knowing about it in
January. Kendrick and Lea also acknowledged that they were aware of the strong support for
the Union among the maintenance employees. By mid-April, when the raise went into effect, the
Union had filed its petition and an election was imminent.

In NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964), the Supreme Court
recognized the inherent danger in well-timed increases in wages and benefits and found that a
grant of benefits intended to influence employees’ choice in an election violates Section 8(a)(1)
of the Act. Although the grant of benefits during an election campaign is not per se unlawful, the
Board will draw an inference of improper motivation and interference with employee free choice
where the evidence shows that employees would reasonably view the grant of benefit as an
attempt to interfere with or coerce them in their choice of representative. An employer may rebut
this inference with proof of a legitimate business reason for the timing and grant of the benefit.
Southgate Village, Inc., 319 NLRB 916 (1995); Holly Farms Corp., 311 NLRB 273, 274 (1993),
enfd. 48 F.3d 1362 (4th Cir. 1995), aff’d. 517 U.S. 392 (1996). More recently, the Board held that
the timing of an employer’s announcement of wage increases during a union campaign may be
unlawful even if the wage increase itself does not violate the Act. Mercy Southwest Hospital,
338 NLRB No. 66 (November 20, 2002) and cases cited therein. Accord: Sun Mart Foods, 341
NLRB No. 22 (2004).

I find that the Respondent has not rebutted the presumption here with respect to either
the timing of the increase or its announcement. The issue of unequal pay for equal work was a
concern to the maintenance employees for some time before the Union campaign and, in all
probability, was one of the reasons the maintenance employees sought union representation.
Although the Respondent was admittedly aware of this concern, and had discussed ways to
address it, it clearly had not decided to give the employees a raise before learning of the union
activity among its employees. At most, the Respondent had decided to combine its Level V and
Level VI maintenance jobs and provide training to the lower-paid employees so that they,
eventually, could receive the higher pay. Only after becoming aware of the maintenance
employees’ interest in the Union was a decision made to pay the employees first and train them
later. Moreover, rather than simply raise the pay of the Level V employees so that they were
equal to their colleagues in Level VI, the Respondent went further and gave the Level VI
employees a raise, which would only continue the pay inequity that purportedly was the impetus
to combining the job classifications in the first place. Then, when the two maintenance
employees who had nothing to do with maintaining machines, and thus no need to acquire
Level VI skills, complained that they had been left out of the Respondent largesse, the
Respondent promptly gave them a raise as well. It is obvious that these raises were not part of
a process that had already been implemented, such that to withhold a raise would lead to unfair
labor practice charges. The only plan the Respondent had before the Union was to provide
training and decide whether to increase wages later. Once the Union appeared, the Respondent
gave employees a raise and all but forgot about the training.

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Based on the above, I find that the Respondent violated Sections 8(a)(1) and (3) of the
Act, as alleged in the complaint, by giving its 27 maintenance employees a raise in mid-April to
influence them to vote against union representation.

(b) Lead Operators

There is no dispute that the Respondent gave all its lead operators a raise, in their
paychecks received on May 20, which brought them all to the Level V rate of pay, i.e. $19.53
per hour. Blair Heffner was the only lead person to testify for the General Counsel. He recalled
being called into a meeting with all the other leads, sometime in Mid-May, and being told that
the Respondent had decided to re-certify all the leads on every machine in the plant, give them
a new base wage and eliminate the need to re-certify every year. According to Heffner, Kelly
Rice and Heidi McMinn, from Human Resources, conducted this meeting. Heffner testified
further that he did not attend any meetings prior to this at which lead operator pay was
discussed.

Heffner and the Respondent’s witnesses agreed that there was a long-standing
complaint among the leads about the “pay-for-skills” system. Under that system, some leads
who worked in departments that did not have a lot of different machines could receive
certifications and reach the top of the scale without much effort while leads in other departments
had to learn more machines to get to the same level. In addition, in order to keep their current
rate, all leads had to re-certify every year. In a busy department with more employees, the leads
were pressed for time and had difficulty re-certifying. In contrast to Heffner’s testimony, the
Respondent witnesses, Lea and Rice, described a series of meetings beginning in January at
which these and other issues were discussed with employees, including the lead operators, and
plans were made to address them.

The testimony of Lea and Rice, and documents offered by the Respondent, show that
the Respondent first discussed the possibility of moving all the lead operators to a non-pay-for-
skills level V at meetings in early March. According to Lea and Rice, some of the lead operators
at the meeting voiced objection to this idea and the Respondent decided to hold off
implementing it until Rice had a chance to meet with the lead operators to discuss these
objections.28 Although Lea testified that Rice and Heidi McMinn held these meetings in mid-
March and reported back to him before the end of March, Rice testified that he and McMinn did
not meet with the leads regarding their objections until late April.29 In fact, a document
purporting to be a slide shown to employees during a series of plant wide meetings held during
the week of March 29 states: “Lead pay will not be adjusted at this time.” According to Rice, it
was after this meeting, and presumably after the Union’s petition was filed on March 30, that he
and McMinn met with the lead operators and determined that the objections they had were not
sufficient to warrant holding off any longer. At that point, the decision was made to re-classify all
the lead operators to a Level V. The amount of increase each received depended on where
each was at on the Level IV scale. The Respondent’s records show that 4 lead operators were
already receiving $19.53 per hour and received no raise. The other lead operators received
raises ranging from $.66 to $3.21 per hour. In all, 28 lead persons received raises in May.

28 The objection, which was raised by a very few lead operators, had to do with the apparent
unfairness of everyone now receiving the same rate as those lead operators who had spent
years certifying in enough skills to receive the higher rate.
29 According to Rice, he was unable to meet with the leads before late April because he was
busy responding to the Union’s petition.

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As with the raise given to the maintenance employees, the Respondent clearly had not
made a decision to implement this increase before the Union’s petition was filed. On the
contrary, the Respondent had told employees there would be no pay adjustment for lead
operators. Then, almost two months later, and within days of the election, the Respondent went
ahead with the adjustment. I find the explanation offered by Lea and Rice as to the reason for
the change in position and the timing of the announcement wholly incredible. Even assuming I
accepted the Respondent’s explanation for its change from the March 29 decision not to grant a
raise, the timing of the announcement, so close to the election, was clearly unlawful under the
rationale of Mercy Southwest Hospital, supra. In reaching my conclusion that the lead operator
raises violated the Act, I also note that the evidence establishes that the Respondent was aware
of union activity among its employees by mid-February, at the latest. Thus, even assuming it
made a decision to adjust these employees’ pay in February, the inference would still be strong
that it was intended to influence these key employees to withhold their support for the Union.30
There is no dispute that the issues raised regarding the pay-for-skills system as it applied to the
leads were not new in January and February 2004. The Respondent has not rebutted
presumption that the timing of the Respondent’s plan to address these concerns was unrelated
to the Union organizing campaign. Accordingly, I find, as alleged in the complaint, that the
raises given to 28 lead persons on or about May 20 violated Section 8(a)(1) and (3) of the Act.

2. The Discharge of McSwain and Related Allegations

The complaint alleges, at paragraphs 9, 10, 11 and 15, that the Respondent suspended
Dennis McSwain on June 14, and discharged him on June 17, in violation of Section 8(a)(1) and
(3) because of his union activities. In addition, as noted above, McSwain was the sole witness to
a number of independent Section 8(a)(1) allegations in the complaint that I have previously
deferred ruling on. I will now consider all of these allegations together because credibility of
McSwain and his opposing witnesses is key to their resolution.

McSwain had been employed by the Respondent at the Gastonia plant since December
11, 1998. During the relevant period, from January to June, 2004, he worked in the tubing
department, running line 4 on the A shift, working from 7:00 am until 7:00 p.m. His line consisted
of four machines that made the outside shell of gas spring tubes. McSwain’s partner on the line
was Chris Paysour, an employee whom all parties acknowledge was frequently absent during
this period. Heffner was his lead person and Lane Turner his immediate supervisor. Turner
reported to Jon Nichols, the Focus Area Manager for the rod and tubing departments.

There is no dispute that, except for a brief period in early 2004 when McSwain missed
some work during his brother’s illness and subsequent death, he was a hardworking,
dependable employee on whom the Respondent could rely when it needed to get the job done.
McSwain testified that he “worked every hour they ever asked me to work.” A summary of the
Respondent’s payroll records confirms that they, i.e. the Respondent’s supervisors, asked him
to work a lot. Particularly during the period of the campaign, from late February until his
termination in June, it was common for McSwain to work more than 20 hours of overtime a
week. The undisputed evidence shows that the Respondent frequently asked McSwain to fill in
for absent employees not only on his shift but on others as well because his line was so critical
to the Respondent meeting its production goals. In fact, McSwain was working so many hours
30 Although the degree of union support among lead persons was not as strong as it was
among the maintenance employees, the Respondent’s witnesses conceded that the lead
operators were in a position to influence other employees one way or another because of their
role in the plant.

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that his supervisor, Turner, expressed concern for his health in a memo to Nichols dated June
13 that will figure prominently in the discussion of McSwain’s termination.

McSwain became aware of the union activity when he returned to work in late February
following the death of his brother. According to McSwain, he did not become involved initially
because he didn’t believe a union would bring about change in upper management.31 McSwain
testified that his first conversation with any supervisor or manager about the Union occurred on
April 1 when Lea approached him on the line while he was working. According to McSwain, he
and Lea had a good relationship and spoke frequently on a wide range of topics. On April 1, Lea
asked McSwain how he felt about the Union. McSwain told Lea he didn’t think the Union would
help the employees and that he, personally, did not want a union. According to McSwain, Lea
then asked him what was the biggest complaint among employees in the department. McSwain
replied that he didn’t know but would try to find out. Lea did not specifically deny having this
conversation with McSwain. He corroborated McSwain’s testimony about the nature of their
relationship before the Union campaign, testifying that the two spoke frequently and openly
about many issues in the plant. Lea claimed, however, that the first time the two men spoke
about the Union was several weeks to a month before the election when he saw McSwain
wearing a union button. According to Lea, he said, “I’m surprised at that Dennis.” McSwain
answered by saying that he was not for the Union but was only wearing the button so other
employees wouldn’t harass him. Lea claimed that McSwain told him he was voting no in the
election. The only other discussions about the Union that Lea admits having with McSwain
involved the tee-shirts that McSwain had made and was distributing in the shop, conversations
which will be discussed later.

The General Counsel amended the complaint at the hearing to allege that Lea’s
questioning of McSwain amounted to unlawful interrogation in violation of Section 8(a)(1) of the
Act. This allegation was probably not included in the complaint initially because McSwain failed
to mention it in his affidavit during the investigation. When confronted with this discrepancy
during cross-examination, McSwain testified that he did not mention it to the investigator
because the investigator asked if any supervisors had talked to him about the Union and
McSwain did not consider Lea at the time to be one of his supervisors because he worked in
Human Resources. He explained the fact that he included other conversations with Lea in his
affidavit because in those instances he was asked by the investigator what happened during
specific instances. The Respondent argues that McSwain’s testimony as to this allegation and
others should be disregarded because he displayed a tendency to embellish the truth and
exaggerate the facts. The Respondent also questioned several witnesses, including other
employees, to show that McSwain had a reputation for untruthfulness. On rebuttal, the General
Counsel was successful in establishing that the alleged fabrications of McSwain that these
witnesses described actually had a basis in fact and were not lies. Nevertheless, McSwain’s
testimony was not entirely free from doubt. At the same time, I have previously noted my
concerns with Lea’s overall credibility and have found that Lea engaged in other acts of
interrogation. Considering all of the evidence in the record, as well as the demeanor of McSwain
and Lea, I find that McSwain’s testimony about this conversation is more credible. Because
McSwain was someone that Lea admittedly felt comfortable talking to about workplace issues, it
is reasonable to believe he would have sought McSwain’s opinion on the Union issue.
Subsequent events confirm this view. Because Lea’s questioning of McSwain, at a time when
he had not openly displayed any support for the Union, and directed at learning the views of
31 Despite his feelings about the Union, McSwain did sign a union authorization card
presented to him by Gentle soon after he returned to work, sometime in early March. According
to McSwain he did this just to get a vote on the union issue.

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other employees, violated the Act under the Board’s test for interrogation, I find that the
Respondent violated the Act as alleged in the amended complaint. See Westwood Healthcare
Center, supra.

McSwain testified that he also had a conversation on April 1 with Tom Napoli, the
Respondent’s Manufacturing Manger for fabrication and assembly and Nichols’ boss at the time.
According to McSwain, Napoli opened the conversation by saying that he knew he couldn’t talk
to him about the Union. McSwain replied that, as long as they talked “man-to-man”, he didn’t
mind. Napoli then asked McSwain the same question Lea had, i.e. what was the biggest
complaint among employees in the department and how McSwain thought the Union might help.
McSwain told Napoli the biggest complaints were pay and certification. McSwain explained that
the issue was favoritism affecting whether supervisors gave employees the certification they
needed to receive raises under the pay-for-skills system. McSwain testified that Napoli came
back a couple hours later and asked McSwain if he would be willing to talk to Kelly Rice in
Human Resources about this and McSwain said he would. Napoli then set up a meeting with
Rice for the following Wednesday. Napoli admitted having a conversation like this with McSwain
but denied there was any mention of the Union. According to Napoli, he spoke to McSwain
because the tubing department was a focal point in problems the Respondent was having in
meeting production during the Spring. Napoli questioned McSwain and other employees in the
department to try to find out what the problem was. Napoli also admitted asking McSwain to
participate in a committee to address the issues he raised.

The General Counsel also amended the complaint to allege this conversation as
unlawful interrogation. To the extent Napoli disputes McSwain’s testimony that his questioning
related to the ongoing union campaign, I credit McSwain. The other evidence in the record
establishes that the Respondent was keen on learning what issues were of concern to the
employees in order to address them. The Respondent’s efforts in this regard increased once the
Union filed its petition. It is thus probable that, as part of that effort, Napoli would have sought
out someone like McSwain to find out what employees’ concerns were. Accordingly, I find that
the Respondent violated Section 8(a)(1) of the Act on April 1 through Napoli’s questioning of
McSwain.

McSwain testified that, during his meeting with Napoli and Rice the following week,
Napoli relayed to Rice the concerns that McSwain had expressed and told Rice that other
employees were complaining about pay and certifications in the group meetings that the
Respondent was holding during the month of March, alluded to above in connection with the
unlawful raises. Rice told McSwain and Napoli that the only way the Respondent could address
these concerns was by setting up a committee. Napoli told Rice to go ahead and set up the
committee and have McSwain run it, reporting back to Napoli.32 According to McSwain, within a
few days, there was a posting on the bulletin board soliciting employees to sign up for a pay and
certifications committee. McSwain signed up for the committee and was told by Napoli that the
committee was selected and would meet the following week, which was sometime in mid-April.
McSwain testified that when he showed up for the scheduled first meeting of the committee,
only he and Nichols were there. When McSwain asked Nichols where was everybody, Nichols
identified the rest of the committee members as Ruben Jackson, a lead person, Boyd Mason
and Matt Williams. McSwain told Nichols these were all “no” votes, meaning they were against
the Union, and that Napoli and Rice told him the committee would be open to everyone. Nichols
replied that these were the only people who signed up.

32 As noted above, Napoli admitted asking McSwain to participate in such a committee.

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Because none of the other employees showed up for this first meeting, another was
scheduled for the following week. Everybody showed up for this meeting. The committee first
met with Bill Jordan, the individual in charge of the Respondent’s Kaizen program.33 Jordan
gave a class on the guidelines the committee had to follow to change company procedures. The
committee then moved to a conference room in the Human Resources department where
Nichols told the employees they would have to have officers, i.e. a president, a vice president, a
secretary and a “flunky”. Nichols then appointed the officers, Jackson would be the president,
Mason the Vice President, Williams would be the secretary and McSwain would be the “flunky”.
At that point, according to McSwain, he got up and left the meeting to speak to Rice. He
complained to Rice that Napoli and Rice had promised McSwain that he would run the
committee and that Nichols would not be involved. Rice responded that it was Nichols
department and he had to run the committee. He suggested that McSwain speak to Napoli.
McSwain then went to see Napoli and made the same complaint to him about Nichols taking
command of the committee. Napoli told McSwain that Nichols needed the experience, that it
was his department. Napoli also reassured McSwain that anything that came out of the
committee would still have to go through Napoli and that he would ultimately control it. Napoli
asked McSwain to please rejoin the committee and McSwain agreed.34

Napoli and Rice corroborated McSwain regarding how the committee was set up in
response to issues raised by McSwain in his conversation with Napoli.35 They both recalled the
meeting in Rice’s office and Napoli admitted soliciting McSwain to be on the committee. Napoli
and Rice dispute McSwain’s testimony that they promised or otherwise led him to believe that
he would run the committee. According to Napoli and Rice, it was always envisioned that
Nichols, as manager for that department, would be responsible for its activities. Rice also
corroborated McSwain’s testimony that he complained to Rice about Nichols’ involvement in the
committee. Rice recalled that McSwain’s complaint was that Nichols did not have an open mind
toward changing procedures and was not being receptive to the employees’ ideas. Rice testified
that he discussed these complaints with Nichols and told Nichols that he would have to respect
employees’ ideas and discuss them with the committee even if he disagreed. Rice denied that
McSwain ever complained that Nichols called him a “flunky”. Napoli, on the other hand, denied
receiving any complaints from McSwain after the committee was formed. According to Napoli,
after the committee was formed, he had no further involvement with it. The only complaint
Napoli recalled from McSwain involving Nichols was made before the committee was formed
and related to Nichols’ management style. According to Napoli, McSwain complained that
Nichols tone toward him when presenting things was derogatory. Napoli did not recall McSwain
ever complaining that Nichols referred to him as a “flunky”.

Nichols and the other three employees on the committee testified for the Respondent
about the initial organizational meeting but their recollection is somewhat different from that of
McSwain. While Nichols corroborated McSwain’s testimony that the group met initially with
Jordan to learn the guidelines for such a committee and that Nichols told the committee they
would need someone to be a spokesman and someone to take notes, he denied dictating who
would fill these positions and specifically denied telling McSwain that he would be the “flunky”.
33 Kaizen is a process improvement program first developed in Japanese manufacturing
facilities which uses work teams to solve production and similar problems. The Respondent had
utilized such a program since about 1997.
34 McSwain admitted to having a low regard for Nichols, referring to him in conversation with
other supervisors as a “dumbass”.
35 In fact, Rice admitted on cross-examination that, had McSwain not come forward with the
issues he raised, no committee would have been formed.

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Of the three employees who testified for the Respondent on this issue, only Williams
claimed to have volunteered to be on the committee. Jackson expressly denied that he
volunteered, testifying instead that Nichols asked him to be on the committee. According to
Mason, he “got volunteered” to be on the committee. Jackson, Mason and Williams all recalled
attending the training session with Jordan where they received guidelines on the operation of
such a committee. After this, they met with Nichols to organize the committee. Although all three
claim that Nichols did not “dictate” roles for the employees on the committee, Jackson testified
that Nichols wanted him to be the leader because he was already a lead person.36 Jackson
testified that he did not want to be the leader and kept trying to push the job off on someone
else. After going back and forth on the matter, Jackson finally consented to take the leadership
role. He denied that Nichols referred to this position as the “president” and denied that Nichols
referred to McSwain as “the flunky”. Mason’s testimony was the closest to that of McSwain. He
testified that, after meeting with Jordan, Nichols told the committee they had to pick a leader
and that the four employees, without Nichols present, picked a “president, vice president,
secretary, etc.” While denying that Nichols called McSwain “the flunky”, Mason recalled that he
was referred to as “the member” of the committee since all the other employees had titles.
Finally, Williams testified that the employees themselves picked people to fill various roles after
Nichols told them they had to pick someone to take notes. Although he claimed that Nichols did
not identify any other positions to fill, he testified that because Jackson was already a lead-
person, “it migrated to him to be the leader”, that Mason, as a back-up lead and trainer was
“next-in-line”, and that Williams ended up taking notes. Although Williams also denied that
Nichols referred to McSwain as the “flunky”, there clearly was no role left for him. It is significant
to note that the written guidelines for such committees maintained by the Respondent provide
for organizing a committee with a leader, sub-leader, scribe and one or more members.

After the initial meeting, the committee continued to meet to come up with a
recommendation to improve the testing and certification process and address employees’
concerns regarding how raises were determined. From the testimony of the four employees on
the committee, who were pretty consistent on this point, they met three or four times in total in
the latter half of April and were successful in developing a new procedure for testing and
certification. When the employees presented their plan to Nichols, he accepted it and said he
would get back to them, but never did. All four employees agree that no more was said about
the committee or its work and none of their recommendations were ever implemented.

Having considered the testimony of McSwain and the other employees regarding the
formation and organization of the employee committee, it is clear, despite the conflicts in certain
parts of the testimony, that the committee came about as a result of Napoli’s solicitation of
grievances during his conversation with McSwain at the beginning of April. Because the
committee was formed precisely to address a concern that McSwain cited in connection with the
Union campaign, I find this was an attempt to convey to employees early in the campaign that
the Respondent was attempting to resolve their grievances without the need for a union. As
such, the conduct amounted to an implied promise of benefits and violated Section 8(a)(1) of
the Act as alleged at paragraph 8( q) of the complaint. Traction Wholesale Center Co., Inc, 328
NLRB 1058 (1999)

The complaint does not allege that Nichols reference to McSwain as the committee
“flunky” was unlawful. At most, if credible, it would be evidence of the Respondent’s animus
toward him. However, I agree with the Respondent that the use of the term “flunky” was a
36 Shortly after the election, Jackson was promoted to supervisor.

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matter of perception on McSwain’s part. None of the other employees who were at the initial
organizational meeting of the committee corroborated McSwain in this regard. Although it is true
that all testified for the Respondent and would have an interest in testifying favorably toward the
Respondent to protect their jobs, it did not appear to me that they were being untruthful. At the
same time, they did corroborate McSwain to the extent that, after all the positions identified by
Nichols had been filled, there was nothing left for McSwain than to be a “member”. This had to
have been a letdown for McSwain since he clearly was the motivating force in the formation of
the committee and I credit his testimony that Napoli and Rice led him to believe he would lead
the committee. Once Nichols became involved, McSwain’s influence was eroded. I credit
Jackson’s and Mason’s testimony that Nichols selected the other members of the committee
and that it was Nichols who essentially determined that Jackson would be the leader. Thus,
although Nichols may not have used the word “flunky”, his actions when the committee
commenced operations clearly conveyed to McSwain that this was the role left for him.

McSwain testified further that, at one of the committee meetings, sometime in the latter
half of April, the subject of the Union came up. According to McSwain, he had been handed a
flyer by union supporters on the way into work which was a reprint of a newspaper article
regarding the unfair labor practice case involving the Respondent’s former plant in Colmar,
Pennsylvania. The article, dated March 7, 1991 and carrying the headline, “Top court backs
UAW Local in Montco dispute”, referred to the Supreme Court’s decision not to hear the
Respondent’s appeal of the NLRB’s order in that case and the potential for a backpay award to
striking employees. McSwain brought the flyer with him into the committee meeting. At first, only
he and Jackson were there. While they were talking about the article, Nichols walked in.
According to McSwain, he asked Nichols if they could talk about the article. Nichols said he
could talk to them about it “off the record” since they were all “no” votes. After reading the
article, Nichols threw the flyer down on the table and said, “this is just UAW bullshit.” McSwain
told Nichols that this wasn’t just something the Union said, that it was from a national
newspaper, the Philadelphia Daily News. McSwain also told Nichols that statements in the
article contradicted what the Respondent had been telling employees at meetings, i.e. that the
Respondent did not have to pay anybody at the Colmar plant when they went on strike.37
According to McSwain, Nichols picked up the flyer again, looked at it and threw it back down,
saying, “let me tell you something, I’ll fire any s--- of a b--- that pickets with the Union.” McSwain
told Nichols to calm down, that he was only seeking the truth about the statements in the flyer.
At that point, Nichols stomped out of the room. McSwain testified that Nichols came back after a
short time and called Jackson out of the room. When Jackson returned he told McSwain there
would be no more committee because McSwain had made Nichols look like a child.

Nichols denied that there was ever a point during the committee’s existence at which he
was in the room with only Jackson and McSwain. Nichols further denied that McSwain ever
raised the issue of the Colmar plant, showed him any flyer about it, or demanded to know the
truth about Colmar. Although he did not recognize the flyer when shown it at the hearing, he
acknowledged being aware of it.38 Nichols also denied making the specific threat attributed to
him by McSwain. According to Nichols, he did not know anything about Colmar, having come to
Gastonia from a plant in Cincinnati. On cross-examination, Nichols admitted that the subject of
unionized plant closings came up during the employee meetings conducted by the company. He
recalled Lea saying something about the Colmar plant at one of these meetings but he did not
remember what was said or how it came up.
37 The article quotes a union official as saying that the Respondent would owe striking
employees “more than $1 million” in backpay.
38 Napoli testified that he had seen this flyer when someone left it in his mailbox at work.

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Jackson testified that he recalled a committee meeting at which McSwain raised the
subject of the union. According to Jackson, McSwain said he had some information he got from
the Union and he wanted to talk to Nichols about it. Jackson recalled that McSwain had some
papers in his hand and tried to give them to Nichols but Nichols wouldn’t take them. Jackson
claimed that he was not in a position to see what was in McSwain’s hands. Jackson testified
further that Nichols was very “professional” and declined McSwain’s invitation to talk about the
union information and finally left the room. Although he denied that Nichols made any threat to
McSwain or threw any papers down on the table, he acknowledged that “words were
exchanged” between Nichols and McSwain. On cross-examination, he also acknowledged
hearing McSwain say, “John, tell me the truth about what happened in Pennsylvania.” Jackson’s
recollection that Williams and Mason were also present but sat by silently was contradicted by
Mason and Williams who denied being present for this incident.39 However, Mason did testify
that he recalled one meeting where he arrived after Nichols had left the room. According to
Mason, Jackson told him that McSwain and Nichols had some “words”. Mason claimed not to
know what it was about.

The General Counsel alleges at paragraph 8(g) of the complaint that the Respondent,
through Nichols’ statement at this meeting, unlawfully threatened employees with termination if
they engaged in a strike. This issue turns exclusively on credibility. Having considered the
testimony of McSwain, Nichols and Jackson, I find that McSwain’s testimony is more credible
than Nichols denial. I note that Nichols’ testimony that no such conversation ever occurred was
contradicted by Jackson, who had a specific recollection of McSwain trying to engage Nichols in
a discussion of what happened in Pennsylvania. His recollection that “words were exchanged”
supports McSwain’s testimony as to the heated nature of the conversation. Moreover, Nichols
overall credibility was adversely affected by his refusal to acknowledge that there were any
problems in his relationship with McSwain. Other witnesses for the Respondent, including
Napoli confirmed there was animosity between the two men.40 Accordingly, I find that Nichols
statement that he would “fire any s.o.b. that pickets with the Union” was an unlawful threat in
violation of Section 8(a)(1) of the Act.

According to McSwain, it was after this meeting that his views began to change
regarding the Union. He attended his first union meeting and began regularly wearing union
buttons at work. He also placed a UAW sticker on his wall locker and tool box. McSwain testified
that, not long after displaying these indicia of Union support, sometime near the end of April,
Nichols said to him one day in his work area, “I thought that’s where you stood and how you
would vote.” McSwain, referring to that earlier meeting of the committee, accused Nichols of
having lied to him. Nichols then said, “Dennis, I can’t make you take those stickers off your wall
locker. There’s going to be consequences.” Nichols shook his head and walked away. Nichols
denied making any such statement to McSwain. According to Nichols, he said nothing to
McSwain about union buttons, hats or tee-shirts he was wearing because the company made a
decision that employees could wear buttons and shirts. Of course this latter testimony is totally
inconsistent with the position that the Respondent took during the campaign and at the hearing,
i.e. that buttons were permitted but not union shirts. I credit McSwain as to this conversation as
well because I found him to be a more believable witness than Nichols.

39 In this respect, Mason and Williams corroborate McSwain.
40 Lea testified, for example, that he had several conversations with McSwain, before and
during the Union campaign, about Nichols. According to Lea, McSwain expressed his belief that
Nichols was an idiot and didn’t know what he was doing.

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McSwain testified further that he attended another union meeting after this conversation
at which he approached one of the Union’s organizers and asked if it would be okay if he made
up some tee-shirts supporting the Union and distributed them to his co-workers. When the
Union told him it was okay to do this, McSwain and his wife had a number of tee-shirts printed
up, at their own expense, with slogans on the front and back supportive of the Union. On the
front of the tee-shirt was a drawing of clasped hands above the following message:

United We Stand
Divided We Fall
Vote
Yes

On the back of the shirt was the following:

They Provided
The Job,
But Our Sweat
Keeps It Running.

Unite Now or
Forever Be in Doubt!

An invoice shows that McSwain purchased these shirts on May 5. McSwain then took them to
work and distributed them to other employees whom he knew supported the Union. He also
hung the shirts on a rail on one of the machines in his work area. He recalled that he did this on
May 12 and 13. McSwain testified that when Nichols saw the shirts hanging on the machine, he
told McSwain that the Chamber of Commerce was coming in and he could not hang his shirt on
the machine. McSwain then hung the shirts on his wall locker and Nichols told him that he could
not hang the tee-shirt there either. When McSwain told Nichols he could put anything he wanted
on his locker, Nichols replied, “Boy, there’s consequences to what you’re doing.” As noted
above, Nichols denied having any such conversation with McSwain about his shirts. I shall
credit McSwain as to this incident because I found Nichols’ denial unbelievable.

The complaint alleges, at paragraph 8(h), that these two statements by Nichols, in late
April and on May 12, amounted to unlawful threats of unspecified reprisals. The Respondent
argues, on credibility grounds, that McSwain’s testimony suggesting that Nichols used the same
phrase on both occasions is contrived. I disagree. It is not uncommon for an individual to have a
favored expression that they use on multiple occasions, as Nichols did here. The statement that
there would be “consequences” to McSwain’s changed position and now open support for the
Union was an implied threat of unspecified reprisals. Accordingly, I find this violation as alleged
in the complaint.

McSwain testified further that Lea saw him giving one of his shirts to another employee
on May 12, the same day that Nichols threatened him. According to McSwain, Lea asked him
who was selling those shirts. McSwain said no one, that he was giving them out to employees
who supported the Union.41 Lea then told McSwain that although he was allowed to display
Continued
41 The Respondent attempted, without success, to show that McSwain tried to make money
from the sale of these tee-shirts. Not a single employee testified that he paid for these shirts.
They all corroborated McSwain’s testimony that the shirts were free. The Respondent was also

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_________________________
anything he wanted, he could not wear the tee-shirts anywhere in the plant. McSwain testified
that Lea then said the same thing that Nichols had said, i.e. “Boy, there’s consequences to what
you’re doing.” After this incident, McSwain and his wife had more shirts printed up, which he
distributed on or about May 20, which was the first day of the election. On that day, McSwain’s
wife Kelly came to the plant to pick him up after work. She parked in the 15-minute spot to wait
for her husband. As she was waiting, she hung some of these tee-shirts on the side of the van.
According to Mrs. McSwain, Lea walked past the van, turned around and came back to speak to
her. She testified that Lea asked her if she was an employee. According to Mrs. McSwain, she
gave Lea a funny look because she had met him several times before and believed he knew
who she was. She replied that she was not an employee and was there to pick up Dennis. Lea
then told her she was not allowed to display or distribute the Union tee-shirts on company
property. Mrs. McSwain testified that Lea then walked back toward the plant where she saw him
speaking to her husband. McSwain testified that on that same day, as he was leaving the plant,
Lea stopped him and told him that, while McSwain could display anything he wanted, his wife
could not display or distribute anything with a UAW logo on it. According to McSwain, Lea then
said, “Dennis, you work more hours than anybody. Everybody was looking to see which way
you were going to go. Dennis, you was with us.” McSwain responded by saying that he had
been on the company’s side until Nichols started putting him down. Lea tried to end the
conversation by saying they would talk more later. McSwain started to walk away, then turned
and asked Lea, “what kind of b—s—is this? You’ve known my wife for six years, you’ve talked
to her many times.” Lea again said that he would talk to McSwain later and repeated the refrain,
“there’s going to be consequences.”

McSwain testified about one more conversation with Lea regarding his tee-shirts. On
May 22, the final day of voting, McSwain wore his tee-shirt and attended a rally in front of the
plant before going into work. When he went into the plant to clock in, Lea was waiting for him.
According to McSwain, Lea apologized for being rough with his wife the other day and said,
“Dennis, you know this vote is going to be very, very close.” Lea again referred to the amount of
hours McSwain worked and repeated the statement from their earlier conversation that
everybody was watching what McSwain did. Lea then asked McSwain to do him a “favor” by
taking the shirt off and not supporting the Union that day. McSwain replied by expressing his
fear that, if he removed the tee-shirt, Nichols would fire him if the Union lost the vote. Lea then
said that nobody could fire him, not Nichols, not Napoli, nobody could fire him but Lea. Lea told
McSwain he was his best worker, that he would not fire him. When Lea again asked McSwain to
do him a favor and remove all displays of support for the Union, McSwain expressed doubt and
repeated his fear that he would be fired. Lea reassured him by saying that Richeson gave him
the authority to make changes and that he had the balls to make changes. He then promised
McSwain that nobody would fire him. At that point, according to McSwain, he removed his Union
tee-shirt, a protractor with the Union logo on it, and his Union hat. He went to work and engaged
in no other activity in support of the Union that day.

Lea generally denied making any threats to McSwain regarding his Union activities and
he specifically denied the conversation on May 22 in which he allegedly promised that McSwain
would not be fired if he removed his tee-shirt and other union paraphernalia. As noted
previously, Lea admitted to having a conversation with McSwain, about 1-2 weeks before the
election, regarding the Union tee-shirts. According to Lea, he saw McSwain coming out of the
employee entrance from the production area during a break, wearing one of these tee-shirts. He
said, “Dennis, you know you can’t wear that shirt to work.” McSwain said, “Doesn’t it look nice?”
to which Lea replied, “you know the rules”. Lea asked McSwain to change his shirt and
unable to show that McSwain was reimbursed by the Union for the cost of making these shirts.

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McSwain agreed. According to Lea, he had no further conversation with McSwain that day and
did not see him wearing the tee-shirt again. Lea testified further that, the same day, when he
was walking outside for a smoke break, he saw the McSwains’ van in the visitor lot with the
Union tee-shirts hanging on the doors. Because he didn’t recognize her, Lea stopped and asked
Mrs. McSwain if she was an employee. When she told him she was Dennis McSwain’s wife, Lea
told her that, while Dennis would be allowed to display the shirts, handbill, or otherwise engage
in union activity on the property, she could not because she was not an employee. Lea told her
she would have to remove the shirts. As he was returning to the plant, Lea encountered
McSwain leaving. When he relayed to McSwain what had just happened with his wife, McSwain
said that he would take care of it. The next day, according to Lea, McSwain told him he didn’t
have to worry about it anymore because McSwain, “tore her up for messing with my business.”
Lea denied apologizing for the way he talked to Mrs. McSwain. In Lea’s view, he had nothing to
apologize for, since he had been polite to her.

The General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act
during Lea’s encounters with McSwain on May 12 and 20 in two respects. At paragraph 8(h),
Lea’s statements “there will be consequences”, are alleged as threats of unspecified reprisals.
At paragraph 8(m), Lea’s prohibition on McSwain’s wearing of the Union tee-shirt is alleged as
unlawful. Because there is no dispute that Lea did tell McSwain on at least one occasion that he
could not wear a union tee-shirt in the plant, and based on my finding above that such a
prohibition violated the Act, I find that the General Counsel has established the violation alleged
in paragraph 8(m).

The allegation that Lea also threatened McSwain in these conversations is more difficult.
Although I generally found McSwain to be a credible witness and have expressed my doubts
about Lea’s credibility, McSwain’s testimony in this instance does not ring true. While it is one
thing for an individual like Nichols to have a favored expression and use it repeatedly, it seems
more than a coincidence that Lea would say the same thing on two other occasions. At the
same time, McSwain’s testimony that Lea referred to McSwain’s change of position and
expressed concern about how others would be influenced by what McSwain did is believable.
There is no question that the Respondent considered McSwain a loyal, dependable employee
because of his willingness to work whenever needed. It is also undisputed that Lea had
considered McSwain as an employee he could talk to freely about issues in the plant.
McSwain’s sudden change of position on the Union had to have concerned Lea. Thus, I find it
probable that Lea would have expressed these feelings when he saw McSwain wearing the
Union tee-shirt even if he did not threaten any “consequences”.42 I also had serious doubts
about Lea’s version of the conversation with McSwain. Lea’s testimony indicating that McSwain
was upset with his wife’s display of the tee-shirts in the parking lot is patently unbelievable. Why
would McSwain have “tore up” his wife for doing something that he fully supported? It is clear
that McSwain and his wife voluntarily made up the tee-shirts and distributed them to other Union
supporters. McSwain simply would not have been upset about his wife displaying them on the
van in the parking lot. Because neither version of these conversations is fully credible, I find that
the General Counsel has not met his burden of proving that Lea actually threatened McSwain
with unspecified reprisals on May 12 and 20.

The complaint also alleges, at paragraph 8(n), that the Respondent violated the Act
when Lea promised, on May 22, that McSwain would not be terminated if he removed his Union
tee-shirt. I find McSwain’s version of this conversation more credible than Lea’s denial. I note
42 As noted above, Lea admitted expressing surprise when he first saw McSwain wearing a
Union button.

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that Lea had a practice of asking employees to remove union tee-shirts whenever he saw them
being worn. I have also found credible McSwain’s testimony above that Lea expressed concern
on May 12 and 20 about how other employees would view McSwain’s support of the Union.
Because McSwain was a loyal employee whom Lea had confided in previously, it is believable
that he would not want other employees to be influenced by McSwain’s actions. When McSwain
expressed fear that he would be fired if he removed the tee-shirt and the Union lost, Lea made
the promise that he would make sure that did not happen. By doing so, the Respondent violated
the Act as alleged.

In addition to the discrete incidents described above, McSwain also testified to a general
change in Nichol’s treatment of him after he openly displayed his support for the Union in April.
Although McSwain may not have had the best working relationship with Nichols before he got
involved with the Union, at least Nichols did not check his production paperwork looking for
mistakes, time his breaks or otherwise closely scrutinize his work. According to McSwain, after
he started wearing his Union buttons, Nichols and supervisor Turner increased their monitoring
of his work and breaks. Their conduct in this regard is similar to how Vinesett treated union
supporters McClure and Stiles who worked on the same line as McSwain on a different shift.
Because I find this was part of a pattern of conduct engaged in by the Respondent, I shall credit
McSwain and find the violation alleged at paragraph 8(k).

After the election, there is no dispute that the Respondent established a number of
department advisory committees made up of employees to address workplace issues. Lea
invited McSwain to participate in one of these committees, as well as on another committee to
address concerns about the job bidding procedure. According to McSwain, Lea told him the only
way that changes would be made is if employees participated in these committees. McSwain
also testified that, after one of these meetings, Lea called him aside. Lea showed McSwain a
paper that showed the hours McSwain had worked in the past three months and told McSwain
that he was Lea’s best employee. He then asked McSwain if he wanted Lea to set up a meeting
with Napoli and Nichols, presumably to address the concerns McSwain had expressed before
the election. McSwain responded that Lea had given him his word that he would not be fired
and that was good enough for McSwain. According to McSwain, Lea patted him on the back
and again assured him that he would not be fired. McSwain testified further that Lea also asked
him how he was holding up working all those hours, to which McSwain replied that he was
experiencing stomach problems but was trying to make it until a scheduled vacation when he
was going to see his doctor about the problem. This conversation occurred on or about June 8.

McSwain testified that on June 13, he reported to work as usual at 6:30 am and learned
from Calvin Moony, the lead on the night shift, that his line had not run because no one came
into work. Moony told McSwain, “they were screaming for parts.” McSwain started up his line
and began work. At about 7:00 am, his supervisor, Turner, told McSwain that Paysour, his
partner on the line, had called to say he would be late. McSwain continued working alone,
something he was routinely required to do because of Paysour’s frequent absences. At about 8
am, Karren Hagan, who was acting as the lead that day because Heffner was out, stopped by
McSwain’s line to see how he was doing. She told McSwain that Turner told her that Paysour
was not coming in. McSwain said he already knew that and, joking, told Hagan that he was
going home too, that he would let her run the line. When Hagan said, “don’t do that”, McSwain
said he was just kidding. McSwain worked the rest of the morning without taking a break. At
about noon, he went to the canteen to eat a boxed lunch he had purchased from a church group
that regularly provided this service to the employees. McSwain left his machine running,
expecting to eat quickly and return. He recalled seeing Billy Hudspeth, an employee who works
on the line next to his, with whom he had a documented history of conflict, in the canteen.
McSwain denied having any conversation with Hudspeth about problems on the line or being

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upset about having to work alone. The only conversation he had with Hudspeth was Hudspeth
asking McSwain if Paysour was coming into work and McSwain saying he didn’t know. After
quickly eating his lunch of meatloaf and potato salad, McSwain returned to the line.

McSwain testified further that, after lunch, the production scheduler, Frank Nichols, had
McSwain stop the line and change over to producing another part that was a hot order. At some
point during the changeover, McSwain began feeling ill. According to McSwain, he was
experiencing stomach pains and diarrhea. McSwain testified he went to look for Turner but
couldn’t find him so he went to Hagan, his lead. McSwain told Hagan that he had an upset
stomach and was going home. Hagan asked if he was kidding. McSwain told her he was not
kidding, that he was sick and going home. He placed her hand on his forehead and she felt it
and said, “you’re just hot.” McSwain told Hagan he was sorry and left. According to McSwain,
he did not notice if any other employees were around. There were machines running at the time
and the noise level was high. McSwain testified that he clocked out at 1:08 pm and the
Respondent’s records confirm this. McSwain rested at home the remainder of the day and
returned to work the next morning. According to McSwain, he worked a full day, saw Turner and
Napoli during the day, and no one questioned him or said anything to him about the previous
day until about 3:00 pm, when Lea asked to speak to him.

McSwain met with Lea and Rice in Lea’s office. When Lea asked McSwain where he
had been all day, McSwain said, working. Lea seemed surprised at this, looked to Rice and
said, “you told me he wasn’t here.” After Lea and Rice whispered something to one another, Lea
asked McSwain what happened yesterday. McSwain told him he had an upset stomach and
was bleeding, so he went home. Lea told McSwain he was under investigation for leaving the
plant without authorization and that he needed to make a statement. McSwain then wrote the
following statement:

I told my lead that I was sick at my stomach and I did not feel well so that
I left at 1:30.

After he wrote this statement, Lea told McSwain he would have to leave the plant until further
notice, pending an investigation. Lea then asked McSwain if he had any witnesses. McSwain
gave him the names of Hagan, Matt Parker and Glen Brown. McSwain explained that he gave
Brown’s name because Brown, his material handler, told McSwain that morning that people
were talking about McSwain leaving early the day before and that Parker had been questioned
about it. According to McSwain, he had asked Parker what he knew about it and Parker told him
that he was working at the neat band machine near Hagan when McSwain told her he was
leaving. McSwain testified that Parker told him he had heard McSwain say he was sick. After
providing these names to the Respondent, McSwain punched out and went home.

McSwain heard nothing further from the Respondent until June 16, when Lea called him
to come in for a meeting the next morning. The following day, June 17, McSwain met in Rice’s
office with Lea, Rice, Napoli and Nichols. According to McSwain, he was handed a document
that said he left the plant unauthorized. McSwain asked what they were talking about, he didn’t
leave unauthorized. He told them he had never been written up, he worked all those hours for
them and this is what they do? He told them it was b—s--. Rice then told McSwain they were
not there to discuss it, that he was fired. When McSwain asked what was he fired for, Rice
replied, for leaving the plant unauthorized without clocking out. McSwain disputed this and Lea
left the room briefly. When he returned, Lea confirmed that McSwain had clocked out, but then
said, “we’re not here to discuss anything. You’re fired.” When McSwain again tried to argue his
case, suggesting they call his doctor, Rice interrupted and again said they were not going to
discuss it. At that point, Nichols got up, saying he would walk McSwain out of the plant.

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McSwain objected, saying, “that s.o.b. is not going to walk me out of the plant.” Napoli then
intervened and said he would walk McSwain out. Before leaving, Rice asked him to sign the
paper, presumably his disciplinary action form, and McSwain refused to sign it.43 McSwain was
then escorted out of the plant.

Hagan was called as a witness by the General Counsel. She essentially corroborated
McSwain. She recalled McSwain joking with her in the morning about going home when he
found out Paysour wasn’t coming in. She testified that she didn’t believe McSwain because he
never went home early, in contrast to many of the Respondent’s other employees. According to
Hagan, she saw McSwain later that day, sometime between 1:00 and 1:30 pm, when McSwain
came to her and said he was going home. Hagan thought he was still joking so she said,
“Dennis, you can’t go home, you’re not sick.” McSwain took her hand and placed it on his
forehead. Hagan testified that he was sweating a lot. She told him, joking, that he couldn’t go
home because he wasn’t running a fever. McSwain then walked away and Hagan thought
nothing of it. Later, when Hagan went to look for a part for her machine, she went to McSwain’s
line and he wasn’t there. Hagan looked for McSwain and, when she couldn’t find him, she went
to see the supervisor, Turner. Hagan asked Turner if he had seen McSwain. She told him that
McSwain told her he was going home and asked Turner if he had left. Turner looked something
up on his computer and told Hagan that McSwain he hadn’t clocked out.44 After speaking to
Turner, Hagan went back to McSwain’s line to run it. According to Hagan, she could not get the
line to run and had to call maintenance to fix it. Hagan testified that it was not unusual to have
problems starting up a line after it had been shut down for awhile. Maintenance was able to get
the line running again after about 1-1½ hours. Hagan expressed the view that McSwain had
nothing to do with the problem on the line.

Hagan testified that she saw McSwain the next day. She told him that she hadn’t
believed him when he said he was going home. McSwain told her he got sick eating some
meatloaf. Hagan learned later that McSwain had been sent home. Either that day or the next,
Turner told her they wanted to see her in Rice’s office. Rice asked her to tell him what
happened, which she did. He asked her if she would write a statement and Hagan agreed.
Hagan’s statement is as follows:

On 2-13-04 around 1:30 pm, Dennis McSwain told me he was going home. He had
already told me this earlier in the morning, kiddingly, after finding out that Chris
Paysour would not be in. I thought at 1:30 he was only kidding. He did not say he
was sick or that he had gotten an emergency call from home. He did not even tell
me to tell Layne Turner. Layne and I asked for him all over the plant when we could
not find him. Layne checked time clock and he had punched out & went home. I was
then asked to run line four but it was not operational.

Hagan was off work for several days after this and, when she returned to work on June
19, she learned that McSwain had been fired. Hagan spoke to Turner about it, telling him that
she hadn’t meant for McSwain to get fired. According to Hagan, Turner said it wasn’t her fault,
that there was more to it than that. Hagan also went to see Ballard, one of the Respondent’s
managers, about McSwain’s discharge. Hagan testified that she told Ballard that she didn’t think
what McSwain had done was reason to be terminated. Ballard responded, “just between you
43 The form, which is in evidence contains the notation, with Rice’s initials: “refused to sign”.
44 Turner, who testified for the Respondent, explained that when Hagan came to his office,
the computer didn’t reflect that McSwain clocked out because he hadn’t updated the
timekeeping system. Turner confirmed that McSwain in fact clocked out at 1:08, as he testified.

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and me, there’s people saying it could be the Union.” Although Turner and Ballard contradicted
Hagan as to these conversations, I found her to be a far more credible witness that either
Ballard or Turner.

In addition to the testimony of McSwain and Hagan, the General Counsel offered
testimony from a number of employee witnesses regarding the practice in the plant for leaving
work early. Many witnesses testified that it was there practice to simply tell their lead person
they were leaving. Although some employees testified that they would give the lead person a
reason for leaving early, this appeared to be more out of courtesy than any requirement
imposed by management.45 Some of the General Counsel’s witnesses testified that they would
tell a supervisor they were leaving, if the supervisor was around, but many employees felt free
to leave with notification to no one higher up than their lead person. Although the Respondent,
during the presentation of its case, attempted to establish the existence of a rule requiring an
employee to get authorization from a supervisor before leaving work early, Lea conceded no
such written rule exist. When the supervisors who testified for the Respondent were asked
about their practice in dealing with employee’s leaving early, it became clear that there was no
consistent rule. For example, supervisors Crumbley, Kendrick and Vinesett conceded that they
would not normally require an employee to provide a reason if they said they had to leave early
“for personal reasons”. Crumbley testified that she would not pry into an employee’s reasoning if
it was “personal”. Vinesett, who had been a lead before becoming a supervisor, testified that it
was not essential for an employee to explain why he was leaving. If they told their lead they
were going home, that was sufficient. Even McSwain’s supervisor, Turner, acknowledged on
cross-examination that other employees under his supervision had gone home early after
notifying only their lead person without being disciplined.

The evidence in the record also shows that, at least initially, Turner did not perceive that
McSwain had done anything wrong when he left early on June 13. Hagan testified that, when
she first went to see Turner after she could not find McSwain, Turner did not say anything to her
indicating that he felt McSwain should be disciplined for leaving early. In fact, even the memo
that Turner wrote to Nichols about the situation does not convey the impression that McSwain
might be fired for what he had done. On the contrary, Turner expressed concern for McSwain’s
well-being due to the number of hours he was being asked to work. Turner’s memo, in its
entirety, reads as follows:

Today at appox. 2:20pm Karen came to my office and ask me if I had seen Dennis
McSwain. I told her not since around 1:00pm. She then told me he had informed her
he was leaving a little after 1:00pm. Karen said she thought he was joking. I then
went to look for him myself. I was unable to locate him. I then check Uni-time and
found he had clocked out at 1:08pm. This put us in a very bad situation due to the
fact that the other operator (different issue that will be dealt with in the morning) on
the line had already called in this morning. Early in the morning I had talked to
Dennis about needing some help. He told me it would be nice to have a weld
operator due to the amount of changeovers but, he would do the best he could. I did
try to call several people in but, had no replies. I also tried to call in 3 different
people from the rod department to stack parts out but, had no replies. The issue is
this! After I found out that Dennis had left Karen went over to start the machine up.
We found that the machine would not run due to the carriage that holds to the
shuttle bar had a broke pin in it and was making the machine fault out due to short
tubes. This problem took us until 4:00pm to fix. I will find out why Dennis left in the
45 Even Kelly Rice, testifying for the Respondent, said it was a matter of “common sense”.

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morning. The reason I am writing this is because I truly believe that 1 of the
reason he left was due to the extensive amount of hours he has been working
for a long period of time. Even after our discussion last week about this
subject he was still allowed to work 67.5 hrs. I think if he does not get some
time off during 4 day cycle this kind of situation will get worse. Let me know if
you have any input on how you want this situation handled.

(emphasis added). The case presented by the Respondent shows that, rather than address
Turner’s concerns, the Respondent seized upon this memo as a basis for initiating the
investigation that led to McSwain’s termination.46

The Respondent, in its brief, claims that it was Turner who initiated the investigation
because he perceived McSwain’s “walking off the job” to be a “very serious” infraction. Although
Turner did say this in his testimony, I found his belated attempt to re-write history unbelievable.
Turner testified that he wrote the above quoted memo on the afternoon McSwain left work.
Despite the “serious” nature of the incident, he made no recommendation in the memo, nor did
he otherwise suggest, that disciplinary action be considered. On the contrary, he asked that
McSwain be given some relief from the work burdens imposed on him by the Respondent. In
fact, as the memo indicates, and Turner confirmed in his testimony, Turner had spoken to
Nichols about this problem a week before the incident in question and nothing had been done to
assist McSwain.47

At the hearing, Turner did not even mention his concerns about McSwain’s being
overworked in his direct testimony. Instead, Turner testified that he went to see Rice in Human
Resources on Monday morning because he viewed what McSwain had done to be a very
serious disciplinary issue. Only when confronted on cross-examination with the words he wrote
in the memo, did he acknowledge having any concern for McSwain’s wellbeing. On direct
examination, Turner testified further that it was Rice who decided to launch the investigation
after Turner described what had happened. Although his memo was addressed to Nichols,
Turner did not mention speaking to Nichols about the incident until this was brought out on
cross-examination. It was significant that all of the Respondent’s witnesses who testified about
the investigation and decision to terminate McSwain scrupulously avoided any mention of
Nichols involvement other than his presence at a meeting where the decision was made.48 Also
significant in considering the credibility of Turner’s testimony is his admission that, although he
was very concerned about McSwain walking off in the middle of the job, Turner never bothered
to ask McSwain, when he saw him at work on June 14, why he left work.

Rice followed up Turner’s testimony by claiming that it was Turner who brought the issue
46 Interestingly, although Turner indicated in his memo he would “take care of” the issue with
McSwain’s partner not showing up for work, there is no evidence that the Respondent ever
launched an investigation into why he was late or absent so frequently. Apparently, they merely
accepted his claims that his wife had medical problems even though his failure to show up for
work on a consistent basis led to severe production problems on that line.
47 Nichols acknowledged having a discussion with Turner about the hours McSwain was
working.
48 Nichols attempted to explain his apparent non-involvement in the investigation by claiming
he was on vacation on June 14 and did not learn of the incident until he returned to work on
June 15. Nichols was contradicted in this regard by Turner, who testified that he went to see
Nichols about the incident on Monday morning, and by Napoli, who claimed that he learned of
the incident from Nichols on Monday morning.

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to his attention and that he conducted the investigation after consulting Lea. According to Rice,
as part of his investigation, he took statements from Hagan and another employee, Billy
Hudspeth. Rice claimed that Hagan recommended that he talk to Hudspeth because Hudspeth
might know why McSwain left work. This testimony was contradicted by Hagan who denied
saying anything about Hudspeth to Rice and by Hudspeth’s manager, Ballard, who recalled that
Rice interviewed Hudspeth before he spoke to Hagan. Hudspeth gave the Respondent a
statement that was very damaging to McSwain, claiming that McSwain told him during lunch
that he was mad because Paysour hadn’t come into work and Turner didn’t get anyone to help
him. Hudspeth told Rice that McSwain said he had a lot of work to do in his shop and he was
going to go home. Rice apparently accepted this testimony from Hudspeth without question
even though there was a history of conflict between Hudspeth and McSwain known to the
Respondent’s supervisors and even though Hudspeth was on final warning at the time for a
serious infraction.49

Rice testified that, after taking these statements from Hagan and Hudspeth, he met with
Lea and reviewed what he had learned. Lea suggested they call in McSwain. Rice claimed that
Lea met alone with McSwain because McSwain objected to his presence. Lea did not
corroborate Rice in this regard and McSwain credibly testified that he met with both men. This
meeting was presumably McSwain’s opportunity to tell his side of the story yet, surprisingly,
Rice and Lea didn’t bother to mention to him that they had the damaging statement from
Hudspeth. Thus, McSwain was never given an opportunity to rebut this accusation. Rice
testified further that, after the meeting with McSwain, he continued his investigation by talking to
Parker, the witness identified by McSwain. Although Parker corroborated McSwain’s claim that
he told Hagan he was going home, he did not corroborate the statement that McSwain told
Hagan he was sick. Parker, in his statement, said he did not hear McSwain say this. At the
hearing, when testifying as a witness for the Respondent, Parker said he was not present for the
entire conversation between Hagan and McSwain because he had only gone into the area to
retrieve a part.

Rice testified that, after completing his interviews of the witnesses, he researched the
Respondent’s past practice and came up with two prior instances where the Respondent had
terminated an employee for walking off the job. Based on this, he recommended to Lea that
McSwain be terminated. Rice admitted that, as part of his investigation, he also reviewed
Turner’s June 13 memo which documented the incident. Rice claims that this memo was
prepared by Turner at his request when he asked Turner to write down what happened. Of
course, this is not true because the memo was addressed to Nichols and only forwarded to Rice
the next day. Turner also contradicted Rice on this point.

The Respondent’s witnesses then describe a meeting that occurred sometime on June
15 in Richeson’s office. In addition to Richeson, Lea, Rice, Napoli and Nichols were there.
Turner, who had been off work that day, was included by speaker phone. Richeson asked what
happened and Turner relayed the events of June 13. Rice then reviewed all the statements he
had obtained and the evidence of past practice he had uncovered. At that point, Turner was
asked for his recommendation and he recommended termination. Everyone in the room agreed
with this recommendation. Although several of the witnesses who were at the meeting recalled
49 Hudspeth was not a very credible witness. His testimony about McSwain working in his
shop was contradicted by evidence on rebuttal from McSwain’s neighbor that McSwain did not
have an auto shop or any other business at his home. Moreover, Hudspeth’s attempts to
downplay his problems with McSwain were contradicted by the lead operator, Heffner, who was
a very credible witness.

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a discussion of McSwain’s dedication to his job being discussed, only Richeson acknowledged
that Lea made the point that McSwain had also been active in support of the Union. These two
factors made no difference in the Respondent’s decision, according to the witnesses. As noted
above, the Respondent conveyed its decision to McSwain on June 17.

The two prior instances of past practice relied upon by Rice involved Anita Truesdale
and George Brown. Rice testified he found the Truesdale discipline in a log that had been
maintained by the former Human Resources manager. Rice had no independent knowledge of
the specifics leading to her termination. He only knew what was contained in the disciplinary
records. As to Brown, Rice testified that Turner brought this incident to his attention because he
had been the supervisor involved. Truesdale’s disciplinary action form shows that she was
terminated October 19, 2000 for “walk[ing] off the job – violation of company policy.” Memos
from the leadman, Bill Vinesett, and the supervisor, Leroy McCaskill attached to the form
describe what happened. They reflect that, after Truesdale was re-assigned to a job she did not
like, she became angry and told the leadman she was going home. The lead man apparently
relayed this to the supervisor. The supervisor told the lead that they could not make her stay.
This was relayed to Truesdale who, at some point after this, left work. The memo from the
leadman indicates that she was slamming parts before she left.

The second incident, in which Turner was involved, actually involved three employees
who were terminated when they walked off the job. This incident occurred in 1999. Turner
testified that the three employees, George Brown, Eric (last name unknown) a/k/a Chico, and
Reggie Butler, left in the middle of the shift. Although Turner believed that all three left together
without telling anyone, he learned subsequently, after Butler complained about his termination,
that Butler left separately from the others. According to Turner, although the other two
employees sneaked out the back, Butler walked out down the main aisle and waved to his lead
person. Turner testified that Butler got his job back because it was determined he had made
contact with the highest authority at the time. In rebuttal, General Counsel called Butler as a
witness. Butler testified that he was told, in a meeting with Human Resources to discuss his
termination, at which Turner was present, that it was sufficient that he communicated to his lead
person that he was leaving. Butler’s description of the Respondent’s policies in 1999 is
remarkably similar to what current employees, lead persons and supervisors described as the
practice in 2004.

At the hearing, the Respondent offered over the objection of General Counsel and
Charging Party, records of three other employees who were disciplined for leaving work without
authorization. These terminations occurred on July 31, 2000, November 13, 2000, and February
23, 2000. The only information about these incidents is what is contained in the records. The
Respondent acknowledged at the hearing that it was not aware of these other incidents when it
made the decision to discharge McSwain. Although I received the records into evidence, I now
conclude they are irrelevant to a determination of the Respondent’s motives at the time it made
the decision to terminate McSwain.50

In Wright Line,51 the Board held that, in cases where employer motivation is the issue,
the General Counsel must first establish, by a preponderance of the evidence, that union or
50 General Counsel placed in evidence a record of a December 2002 verbal warning issued
to maintenance lead Farrar by supervisor Kendrick for leaving work early without notifying the
production supervisor. This warning merely highlights the inconsistent nature of the
Respondent’s treatment of employees who leave work early.
51 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).

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protected concerted activity was a “motivating factor” in the decision to discharge an employee.
In order to meet his initial burden, the General Counsel must show that the employee was
engaged in protected activity, that the employer was aware of this activity and that the employer
exhibited animus against such activity. The Board has approved reliance upon circumstantial
evidence to establish elements such as knowledge and animus, acknowledging the reality that
direct proof of motivation will seldom be available. Naomi Knitting Plant, 328 NLRB 1279 (1999);
Abbey’s Transportation Services, 284 NLRB 698, 701 (1987), enfd. 837 F.2d 575 (2d Cir. 1988).
Only if the General Counsel has made the requisite showing will the burden shift to the
Respondent to “demonstrate [by a preponderance of the evidence] that the same action would
have been taken even in the absence of the protected conduct.” Id. See also NLRB v.
Transportation Management Corp., 462 U.S. 393, 399-403 (1983). Where an employer asserts,
as here, that some type of employee misconduct was the reason for discharge, the employer
“does not need to prove that the employee actually committed the alleged offense. It must show,
however, that it had a reasonable belief the employee committed the offense, and that the
employer acted on that belief in taking the adverse action against the employee.” Midnight Rose
Hotel & Casino, 343 NLRB No. 107 (December 16, 2004).

I find here that the General Counsel has met his initial burden of proving that McSwain’s
union activity was a motivating factor in the decision to suspend him on June 14 and to
discharge him on June 17. The evidence clearly establishes that McSwain became an open,
active Union supporter beginning in late April, after his run-in with Nichols during his
involvement with the employee committee. There is no question that the Respondent was aware
of his Union activities. Although it is true, as the Respondent argues, that there were many
strong Union supporters among the Respondent’s employees and some who had been involved
with the campaign longer, McSwain clearly distinguished himself from the others by preparing
and distributing the tee-shirts bearing statements of union support that had to be troubling to the
Respondent because they suggested the Respondent was profiting from the “sweat” of its
employees. In addition, McSwain had been an employee the Respondent considered to be on
its side because he had always been someone the Respondent could depend on to do
whatever was asked. Lea himself had a close relationship with McSwain and spoke frequently
to him about workplace issues. When McSwain switched sides, it would be reasonable for the
Respondent’s management to feel betrayed.

The evidence in the record also clearly establishes the Respondent’s anti-union animus.
I have found that the Respondent committed a number of independent Section 8(a)(1) violations
in response to the Union’s organizing campaign, including unlawful conduct directed at
McSwain personally. Nichols, in particular, had threatened McSwain on two occasions that there
would be “consequences” to his having switched sides. When Nichols received Turner’s June
13 memo indicating that McSwain left early, he was presented with an opportunity to carry out
this threat. The circumstances of McSwain’s discharge also support an inference that his union
activity played a role in the Respondent’s actions. Thus, the Respondent’s management took a
memo expressing concern for McSwain’s well-being and used it to launch an investigation that
would lead to his termination. In addition, the conduct for which he was terminated appeared to
be no different than conduct engaged in by other employees without any discipline.52 When the
Continued
52 Heffner, McSwain’s lead person, testified, for example, that just three weeks before
McSwain’s discharge, Paysour came to Heffner and said he had to leave. According to Heffner,
Paysour gave no reason, left work and nothing was done about it, despite the fact that
Paysour’s frequent tardiness and absences were causing considerable problems with meeting
production goals on the line he and McSwain operated. Paysour admitted that he occasionally
left work early after telling his lead that he had to leave “for personal reasons”, without further

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Continued
Respondent’s harsh treatment of McSwain is considered against his good record, with no prior
discipline and a history of working as many hours as the Respondent required, the motivation
becomes suspect. I note in particular that McSwain was not the kind of employee to walk off his
job with no reason, that he was always there working. Rather than try to find out what would
make an employee like this leave in the middle of the day, which seemed to be Turner’s
concern, the Respondent undertook an investigation designed to lead to his termination. I
conclude that the General Counsel has met his burden and presented sufficient evidence to
support an inference that McSwain’s union activity motivated the Respondent’s disciplinary
decisions in this case.

Because the General Counsel satisfied his prima facie burden, the burden was on the
Respondent to establish that it would have taken the actions it did even if McSwain had not
been a union supporter. I find, in agreement with the General Counsel, that the Respondent has
not met this burden. Respondent claimed to have suspended and then fired McSwain because it
reasonably believed he abandoned his job, relying on the statements obtained in the
investigation. The problem with the Respondent’s argument is that no investigation would have
been conducted had McSwain not been active in support of the Union and had the Respondent
not demonstrated its hostility to that activity. The objective evidence shows that the only thing
the Respondent knew on June 14 is that McSwain left work early the day before, that he told his
lead he was leaving but she thought he was joking, and that the Respondent encountered some
problems getting his machine up and running after he left. These facts were communicated to
McSwain’s nemesis, Nichols, by a supervisor who was concerned that the Respondent was
taking advantage of McSwain’s willingness to work as many hours as the Respondent would
give him.53 The only thing Turner recommended in his memo was that some way be found to
give McSwain time off. I don’t think that Turner had in mind the solution the Respondent came
up with.

With this information in hand on the morning of June 14, Respondent chose to conduct a
disciplinary investigation when it could have simply asked McSwain what happened. McSwain’s
conduct on June 13 was, as far as everyone who testified was concerned, out of character.
McSwain simply never left work early so he must have had a good reason. Yet Respondent
didn’t care to find out until it had built a case to fire him.54 The case the Respondent built is also
suspect because there is no credible evidence in the record to explain Hudspeth’s involvement
in the investigation. In light of the history of animosity between Hudspeth and McSwain, it is
unlikely that McSwain would have chosen to tell Hudspeth he was leaving to work in a shop he
didn’t have. Aside from the damaging statement of Hudspeth, which the Respondent never gave
McSwain an opportunity to rebut, all that the investigation disclosed is that McSwain left work
after telling his lead he was going home.55 This was something that many other employees
explanation.
53 Respondent’s attempt at the hearing to cast McSwain’s willingness in terms of greed, i.e.
“he liked making the overtime”, is unseemly. There is nothing wrong with an employee trying to
earn as much as he can to support his family. Respondent certainly took advantage of this
“greed” to deal with critical productivity need in the face of other employees who could not be
relied on to show up for their scheduled hours of work!
54 Even if McSwain didn’t tell Hagan he was sick on June 13, he certainly would have told
Turner, or anyone else who asked, that this was the reason he left. Turner himself conceded
that, if McSwain told Hagan he was leaving because he was sick, he would not have been fired.
55 Although Turner, in his memo, described the problems encountered with McSwain’s
machine after he left, this never became the subject of the Respondent’s investigation and was
not cited as a reason for his discharge. Based on the testimony of Hagan, as well as that of the

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have done over the years without repercussion. Even if McSwain hadn’t given a reason for
leaving, as Hagan and Parker reported in their statements to the Respondent, such conduct
was not outside the norm in the Respondent’s plant. The “past practice” relied upon by
Respondent at the time of its decision amounted to a total of three employees who were
terminated in 1999 and 2000. Even with respect to this evidence, one employee who was
terminated by Turner in the 2000 incident got his job back when it was determined he waved
good-bye to he lead person on the way out.

Based on the above, I find that the Respondent has not proven, by a preponderance of
the evidence, that it had a reasonable belief that McSwain engaged in the kind of misconduct
that would warrant discharge of a valuable employee like McSwain. On the contrary, I find that
the Respondent seized upon the incident on June 13 as a pretext to rid itself of a strong union
supporter, at a time when the Union’s objections were pending and a re-run election was a
possibility. By suspending McSwain on June 14 and terminating him on June 17, the
Respondent has violated Section 8(a)(1) and (3) of the Act. Midnight Rose Hotel & Casino,
supra, and cases cited therein; Doctors’ Hospital of Staten Island, Inc., 325 NLRB 730, fn. 3
(1998). See also SCA Tissue North America, 338 NLRB 1130, 1136-1138 (2003).

D. Section 8(a)(2) Allegations

The complaint alleges, at paragraph 14, that the Respondent violated Section 8(a)(1)
and (2) of the Act, since in or about late April, by initiating, forming, sponsoring and promoting
department advisory committees and, since that date, by rendering aid, assistance and support
to and dominating these committees. The threshold question for determining whether an
employer has violated Section 8(a)(2) is whether the entity involved is a labor organization
within the meaning of Section 2(5) of the Act. In Electromation, Inc.,56 the Board held that an
entity is a labor organization if (1) employees participate, (2) it exists, at least in part, for the
purpose of “dealing with” employers, and (3) these dealings concern conditions of employment
or other statutory subjects. The Board held further that, if an employer representation committee
or plan is involved, there must be evidence that the committee is in some way representing the
employees. Id at 996. Accord: E. I. DuPont & Co., 311 NLRB 893, 894 (1993).

There is no dispute that, on June 9, the Respondent distributed a notice to its employees
announcing the creation of ten “Advisory Committees” representing various areas of the plant.
The stated purpose of the committees was to meet every other week at predetermined times to
discuss “Issues, Solutions and Implementation.” Each committee would consist of the
Department Manager, Supervisor and one hourly employee from each shift (3 or 4 employees in
total depending on whether the department operated on three or four shifts). The announcement
invited employees to nominate themselves or a co-worker to be on the committee and stated
that team members would rotate off the committee at predetermined times to give other
employees an opportunity to participate. A representative from the Human Resources
Department would serve as a facilitator for each committee. Feedback from the committee
meetings would be posted by each Area Manager after the meetings and “team members” were
expected to provide updates to their respective shifts at bi-monthly departmental meetings.

The record indicates that, after the period for submitting nominations expired, several
employees were notified by Human Resources that they had been selected to participate in
maintenance mechanics who repaired the machine, McSwain had nothing to do with the
breakdown.
56 309 NLRB 990 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994).

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these committees. As noted above, McSwain was informed shortly before he was fired that he
was to be on the tubing department advisory committee. Donald Grant testified that he was
notified by a letter from Lea, given to him by his supervisor on or about July 12, that he had
been nominated by his fellow employees to be on the committee for his department, main
assembly and testing. Grant did not know how he was selected. Phillips, the facilities
maintenance tech, was also selected to be on one of these committees, for the maintenance
department, after he submitted his name on the nomination form. Phillips received the same
letter as Grant. Attached to the letter was a copy of the “Operating Structure and Guidelines” for
the committees. These Guidelines explained in more detail than the initial announcement how
the committees were to function.

The written Guidelines provide that each committee would have a minimum of three and
a maximum of ten members, a majority of whom must be non-management employees. One or
two manager/supervisors would also serve on each committee, but would have no greater
authority than the employee members. No member would have veto power and decisions were
to be made by consensus. Each committee was also assigned a representative from the Human
Resources Department to act as facilitator, whose function was to schedule and arrange
meetings, keep the meetings moving along in an orderly fashion and answer questions that
might arise regarding company policy. The facilitator could also suggest topics for the
committee to consider but would not be able to vote. The guidelines also provided that any
member of the committee could suggest topics for discussion and the committee would then
prioritize the topics. As to the type of subjects that could be raised, the Guidelines provided as
follows:

Each Departmental Committee may address any issue of concern or relevance to
their department. Without limiting the topics that may be raised, appropriate topics
would include operations, safety, quality, productivity, training, scheduling,
preventive maintenance, overtime, supplies, staffing, etc. While there are no specific
limitations on topics that may be suggested, there may be legal or policy reasons
why a particular topic cannot be addressed. The facilitator is responsible for making
any such determination.

If an issue is raised that relates more appropriately to some other department, the
facilitator may refer that issue to the appropriate Departmental Committee. If an
issue is raised that more appropriately relates to the entire plant or multiple
departments, the facilitator may convene a special committee to address the issue.
In such circumstances, specific and unique guidelines will be established for the
operation of such special committee.

Under the Guidelines, each committee would have the authority to direct the
implementation of whatever course of action was decided upon, “subject only to budgetary or
financial restraints.” The Guidelines continued:

In this regard, it is the intent to give actual management authority to the committee.
The committee is not intended to function as a labor organization, and there will be
no bilateral dealing between management and the committee. Although committee
member come from specific departments, they are expected to bring their own
unique views, opinions, talents, and observations. They may look to guidance from
any source they choose, but they are not required to seek the opinions, or to

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represent the interests of, other Associates.57

The Guidelines envisioned that topics might be raised in the committees that, “because of
unusual sensitivity, plant-wide impact, legal concerns, financial concerns, or company policy,
will need to be submitted to higher management for review and approval.” It was the facilitator’s
responsibility to determine which subjects required higher review. The facilitator would forward
the committee’s recommendation as to such subjects to the appropriate level of management
and would communicate the decision to the committee. If management approved the
recommendation, it would be sent back to the committee for implementation. If the
recommendation was not approved, the facilitator would report to the committee the reasons
and the committee could “revisit” the topic. Finally, each committee was responsible for
communicating to their respective departments as to the decisions made and implemented by
the committee.

Grant and Phillips testified for the General Counsel regarding how their respective
committees functioned. Kelly Rice, who was a facilitator for the warehouse committee, testified
for the Respondent. In addition, minutes of committee meetings for several of the departments
that had been held from August, when they started meeting, through the hearing are in
evidence. As previously noted, the committees were still meeting as of the close of the hearing.
There is no dispute that the Respondent provides space for the meetings, that the meetings are
held during work time and that employees receive their regular pay for time attending the
meetings. The Respondent also provides whatever materials the committee needs to carry out
its functions. After each meeting, the Respondent prepares and distributes the minutes. The
minutes are posted on department bulletin boards so that other employees will be informed of
decisions and recommendations made by the committees.

Based on the testimony of Grant, Phillips and Rice, as well as the minutes of the
meetings, it is clear that employees have raised all kinds of issues in the course of these
meetings. Most of the issues raised are production, process, machinery and similar issues not
related to working conditions. These are also the types of issues that have been prioritized for
solution. The evidence in the record shows that the committees have actually implemented
some solutions to these manufacturing issues. At the same time, there is no dispute that issues
involving safety, pay, certifications, raises, coverage during vacations, overtime, profit-sharing,
environmental conditions in the shop and potholes in the parking lot have been raised and
discussed in these meetings. Grant testified that, in his committee, when such issues were
raised, either Lea, the facilitator, or Ballard, the management member of the committee, told
employees that there was nothing the committee could do about the particular issue, that it was
outside their authority, or that the issue was in the nature of a complaint and that the committee
should focus on making the plant function better. Phillips, who was only able to attend the first
two meetings of his committee, testified that, when employees raised issues involving pay, for
example, the facilitator, Lea, told them the issue could not be addressed in the committee. Lea
said the issue would be passed on to whomever could address it. Nevertheless, Phillips recalled
that an issue with respect to vacation by seniority was addressed and resolved in the
committee. Phillips also testified that he would solicit his fellow employees before going to
meetings as to issues they wanted to be addressed by the committee and he then raised these
issues at the meetings.

The evidence in the record establishes that the Respondent’s Department Advisory
Committees satisfy at least two prongs of the test for a labor organization, i.e. employees
57 The Respondent refers to its employees as associates.

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participate and the committees discuss subjects that are terms and conditions of employment.
The real question in this case is whether these committees exist for the purpose of “dealing
with” the Respondent as to these statutory subjects. In NLRB v. Cabot Carbon Co.,58 the
Supreme Court held that the term “dealing with” in Section 2(5) of the Act is broader than the
term “collective bargaining”. Whereas bargaining connotes a process by which two parties seek
to compromise their differences and arrive at an agreement, the concept of “dealing” does not
require that compromise be sought. In E. I. DuPont & Co., supra, the Board provided a more
precise definition of “dealing”, citing extensively from its earlier decision in Electromation, Inc,
supra. According to the Board, “dealing”

involves only a bilateral mechanism between two parties. That “bilateral mechanism”
ordinarily entails a pattern or practice in which a group of employees, over time,
makes proposals to management, management responds to these proposals by
acceptance or rejection by word or deed, and compromise is not required. If the
evidence establishes such a pattern or practice, or that the group exists for the
purpose of following such a pattern or practice, the element of dealing is present.
However, if there are only isolated instances in which the group makes ad hoc
proposals to management followed by a management response of acceptance or
rejection by word or deed, the element of dealing is missing.

311 NLRB supra, at 894 (footnotes and citations omitted). The Board further explained the
concept of dealing by noting that a “brainstorming” group or a committee that exists for the
purpose of sharing information are ordinarily not engaged in “dealing” because these groups
simply develop ideas or pass along information and management may do what it wishes with
the ideas and information received. In those situations, the committee is not making proposals
that require a response. Id. See also Miller Industries Towing Equipment, Inc., 342 NLRB No.
112 (September 17, 2004). The Board has also declined to find “dealing” where an employer
establishes employee committees and delegates to those committees managerial authority such
that the committees function as part of management with the power to implement solutions
within certain parameters. Crown Cork & Seal Co., 334 NLRB 699 (2001); General Foods Corp.,
231 NLRB 1232 (1977). See also Georgia Power Co., 342 NLRB No. 18 (June 30, 2004).

After considering the evidence and legal precedent, I find that the General Counsel has
not met his burden of proving that the Department Advisory Committees at issue here “deal
with” the Respondent regarding employees’ terms and conditions of employment. Although such
topics have been raised and discussed, they are not the primary focus of these committees.
Rather, as explained in the written guidelines, and as carried out in practice, the committees
have focused on manufacturing and production issues. As to these issues, the committees have
the authority to determine a course of action and implement it subject only to budgetary,
financial or similar constraints. In these areas, they function as a level of management. In those
situations where employee working conditions have been raised in a committee, the issues are
ordinarily passed along to higher management for action without any proposal from the
committee. Only in rare instances have discrete labor issues been addressed and resolved by
one of these committees. The Board held in E. I. DuPont & Co., supra, that such evidence is
insufficient to convert an employee committee into a statutory labor organization.

Having found that the Respondent’s committees do not exist for the purpose of dealing
with the Respondent regarding employees’ wages, hours and other terms and conditions of
employment, I conclude that they are not labor organizations within the meaning of Section 2(5)
58 360 U.S. 203 (1959).

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of the Act. It is therefore not necessary to address the allegations regarding unlawful domination
and assistance. Accordingly, I shall recommend dismissal of paragraphs 14 and 16 of the
complaint.

III The Union’s Election Objections

The Union’s election objections, set forth in Appendix A, essentially parallel the unfair
labor practices alleged in the complaint. I have found merit to some of these allegations. Thus, I
have found that Respondent’s supervisor, Ballard, threatened employees with plant closure in
early May, which is encompassed by Objections No. 1 and 3; that Lea, at a meeting with the
maintenance department employees on April 1, told the employees that they could not talk
about the Union while working, encompassed by Objection No. 9, and that on or about May 10,
the Respondent gave raises to its lead operators to discourage them from supporting the Union,
which is encompassed by Objection No. 12. Although not mentioned in the objection, the raise
given to the Respondent’s maintenance employees in April is sufficiently similar to the allegation
in Objection No. 12 to be considered as part of this objection. I have also found that the
Respondent engaged in other unfair labor practices during the critical period between the filing
of the petition and the election, which are not specifically covered by any of the objections, but
would warrant a new election. Thus, I found that the Respondent engaged in a pattern of
restricting the movement of pro-union employees and more closely monitoring and supervising
them during the months of April and May. The Respondent also prohibited several employees
from wearing Union tee-shirts in the last month before the election.

The Board has long held that it will set aside an election where one party engages in
conduct which could have the reasonable effect of destroying the “laboratory conditions”
necessary to ensure that employees have the opportunity to make an uninhibited choice on the
question of representation. General Shoe Corp., 77 NLRB 124, 127 (1948). Conduct may be
objectionable even where it does not rise to the level of an unfair labor practice. Conversely,
conduct which violates the Act is, a fortiori, conduct which interferes with an election unless it is
so de minimis that it is virtually impossible to conclude that the violation could have affected the
results of the election. Airstream, Inc., 304 NLRB 151, 152 (1991); Dal-Tex Optical Co., 137
NLRB 1782, 1786 (1962). The unfair labor practices found above could hardly be called de
minimis. Accordingly, I shall sustain the Union’s Objections 1, 3, 9 and 12. Because I have
recommended dismissal of the bargaining from scratch allegation, the allegation that Richeson
threatened that employees would lose their jobs if they went on strike, and the surveillance
allegation at Rankin Lake Park, I shall recommend that Objections 2, 7 and 10 be overruled.

The objectionable conduct and related unfair labor practices found here were sufficiently
serious and pervasive to warrant setting aside the election. I note, in particular, that the raises
given to the lead operators and the maintenance employees affected a significant portion of the
bargaining unit. Because of the closeness of the vote, even an unfair labor practice affecting
only one or two employees could have changed the outcome of the election. Accordingly, I shall
recommend that the election conducted on May 20 and 22, 2004 be set aside and a new
election be conducted, after the Respondent has remedied the unfair labor practices found here.

Conclusions of Law

1. By the following acts and conduct, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act:

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(a) interrogation of employees by supervisors Lea, in mid-February and on April 1, and
by Napoli on April 1, 2004.

(b) threatening employees with plant closure through statements of supervisors
Mehaffey in late January, Lea in mid-February, Hasson on February 18, and Ballard on April 8
and in early May, 2004.

(c) threatening to fire employees who picketed on behalf of the Union in mid-April , 2004
(Nichols).

(d) threatening employees with unspecified reprisals in late April and on May 12
(Nichols), and on May 24, 2004 (Ballard).

(e) prohibiting pro-union employees from talking about the Union at work, on April 1
(Lea), April 18 (Crumbley), in early May and on May 18, 2004 (Mehaffey).

(f) prohibiting employees from wearing union tee-shirts, during the month of May, 2004.

(g) disparately enforcing work rules against pro-union employees on April 1.

(h) more closely monitoring and supervising pro-union employees in April and May,
2004.

(i) restricting the movement of pro-union employees on May 21, 2004.

(j) soliciting employees’ grievances and impliedly promising to remedy them in early
April, 2004 (Napoli and Rice).

(k) promising not to fire an employee if he agreed not to wear union insignia on May 22,
2004 (Lea).

2. By granting its lead operators and maintenance employees raises in mid-April and
mid-May, 2004, respectively, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

3. By suspending Dennis McSwain on June 14, 2004, and discharging him on June 17,
2004, because of his activities on behalf of the Union and to discourage other employees from
engaging in such activities, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.

4. The Respondent has not engaged in any other unfair labor practices alleged in the
complaint.

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. To remedy the Respondent’s violations of Section 8(a)(1) of
the Act, I shall recommend that the Respondent post and abide by the attached Notice to
Employees.

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The Respondent having discriminatorily discharged Dennis McSwain, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended59

ORDER

The Respondent, Stabilus, Inc., Gastonia, North Carolina, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Coercively interrogating any employee about union support or union activities.

(b) Threatening employees with discharge, plant closure, or other unspecified reprisals if
they select a union to represent them or otherwise engage in union activities.

(c) Promising employees they will not be fired if they refrain from engaging in activities in
support of the Union.

(d) Impliedly promising employees improvements in their wages, hours or working
conditions by soliciting their grievances.

(e) Prohibiting employees from wearing union clothing.

(f) Prohibiting employees from engaging in non-disruptive conversations about the Union
that do not interfere with work.

(g) Restricting employees’ movements around the plant because of their union support
or activities.

(h) Disparately enforcing work rules against employees who support the Union.

(i) More closely monitoring and supervising employees who support the Union.

(j) Granting raises to employees in order to discourage them from supporting
International Union, United Automobile, Aerospace & Agricultural Implement Workers of
America (UAW), or any other union.

(k) Suspending, discharging or otherwise discriminating against any employee for
supporting the Union or any other labor organization.

59 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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(l) 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 Dennis McSwain full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make McSwain whole for any loss of earnings and other benefits suffered as a result
of the discrimination against him 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 McSwain’s unlawful suspension and discharge, and within 3 days thereafter notify
him in writing that this has been done and that the suspension and discharge will not be used
against him in any way.

(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 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.

(e) Within 14 days after service by the Region, post at its facility in Gastonia, North
Carolina, copies of the attached notice marked “Appendix B.”60 Copies of the notice, on forms
provided by the Regional Director for Region 11, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since January 2004.

(f) 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.
60 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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DIRECTION OF SECOND ELECTION

IT IS FURTHER ORDERED that a second election by secret ballot be conducted in
Case No. 11-RC-6567 in the stipulated appropriate unit at such time and place as the Regional
Director deems appropriate. The Regional Director shall direct and supervise the election,
subject to the Board’s Rules and Regulations. Eligible to vote are those employed during the
payroll period ending immediately before the date of the Notice of Second Election, including
employees who did not work during the period because they were ill, on vacation, or temporarily
laid off. Also eligible are employees engaged in an economic strike that began less than 12
months before the date of the election directed herein and who retained their employee status
during the eligibility period and their replacements. Those in the military service may vote if they
appear in person at the polls. Ineligible to vote are employees who have quit or been discharged
for cause since the payroll period, striking employees who have been discharged for cause
since the strike began and who have not been rehired or reinstated before the date of the
election directed herein, and employees engaged in an economic strike that began more than
12 months before the date of the election directed herein and who have been permanently
replaced. Those eligible shall vote whether they desire to be represented for collective
bargaining by International Union, United Automobile, Aerospace & Agricultural Implement
Workers of America (UAW).

To ensure that all eligible voters have the opportunity to be informed of the issues in the
exercise of their statutory right to vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Accordingly, it is
directed that an eligibility list containing the full names and addresses of all the eligible voters
must be filed by the Employer with the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care Facility, 315 NLRB 359 (1994). The
Regional Director shall make the list available to all parties to the election. No extension of time
to file the list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the election if proper
objections are filed.

Dated, Washington, D.C.

____________________
Michael A. Marcionese
Administrative Law Judge
JD(ATL)–43–05

APPENDIX A

PETITIONER’S OBJECTIONS

1. Management and or it’s agents interfered with employee’s rights to a free and fair election by
making threats that the Stabilus employees would lose their jobs if they chose the UAW as their
collective representative.

2. On 1/16/04, in a captive audience meeting with fifty (50) employees, Doug Lea, HR Manager,
stated “If we join a Union we are Anti-American and held up a blank piece of paper and said this
is where your wages & benefits start at the bargaining table if you get your Union. This meeting
was held in the company training room.

3. On 2/18/04 Bob Hasson, Manager, stated if the UAW is voted in the plant will close.

4. [Withdrawn]

5. [Withdrawn]

6. [Withdrawn]

7. On 5/2/04, while in an anti-union meeting, Doug Lea stated that if they go on strike they could
be replaced with permanent workers.

8. [Withdrawn]

9. On 4/1/04 all maintenance men were summoned to the training room for a meeting with Doug
Lea. He stated that we are not to discuss union matters with anyone while on the production
floor.

10. On 5/18/04 Reggie Ballard, manager of the Tubing Dept and Main assembly, rode by where
the union meeting was being held.

11. [Withdrawn]

12. On 5/10/04 all lead persons were moved from a level 4 to level 5 with a $.50 raise.

12 (sic) [Withdrawn]

APPENDIX B

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

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

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT coercively question you about your union support or activities.

WE WILL NOT threaten you with plant closure, discharge or other unspecified reprisals if you
select the union to represent you or otherwise engage in union activities.

WE WILL NOT promise you, directly or implicitly, that we will improve your wages, hours, or
working conditions if you refrain from supporting the Union.

WE WILL NOT prohibit you from wearing union clothing.

WE WILL NOT prohibit you from engaging in non-disruptive conversations about the Union that
do not interfere with your work.

WE WILL NOT restrict your movements around the plant because you support the Union

WE WILL NOT disparately enforce work rules against you because you support the Union.

WE WILL NOT more closely monitor and supervise you because you support the Union.

WE WILL NOT grant you raises in order to discourage you from supporting International Union,
United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), or any
other union.

WE WILL NOT suspend, discharge or otherwise discriminate against any of you for supporting
International Union, United Automobile, Aerospace & Agricultural Implement Workers of
America (UAW), or any other union.

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 this Order, offer Dennis McSwain full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.

WE WILL make McSwain whole for any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of this Order, remove from our files any reference to
McSwain’s unlawful suspension and discharge, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the suspension and discharge will not be used
against him in any way.

STABILUS, INC.
(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.
4035 University Parkway, Republic Square, Suite 200
Winston-Salem, North Carolina 27106-3323
Hours: 8 a.m. to 4:30 p.m.
336-631-5201.
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, 336-631-5244.