Stabilus, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 836 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 161
836
Stabilus, Inc. and International Union, United Auto-
mobile, Aerospace & Agricultural Implement
Workers of America (UAW). Cases 11–CA–
20386, 11–CA–20396, 11–CA–20443, and 11–RC–
6567
August 27, 2010
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND BECKER
On September 26, 2005, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Respondent filed exceptions and a supporting brief.
The Charging Party filed an answering brief, and the
Respondent submitted a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision, Order,
and Direction of Second Election.2
Introduction
The Respondent manufactures gas springs for the
automotive and furniture industries at its facility in Gas-
tonia, North Carolina. On February 16, 2004, the Union
began a campaign to organize the Respondent’s employ-
ees at the facility.3 In an election held pursuant to a
Stipulated Election Agreement on May 20 and 22, 242
votes were cast for and 244 against the Union, with two
nondeterminative challenged ballots. The Union filed

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
There are no exceptions to the judge’s recommended dismissal of
the complaint allegations that the Respondent violated Sec. 8(a)(1) by
(a) engaging in surveillance of employees; (b) creating the impression
of surveillance; (c) threatening that bargaining would begin from
scratch; (d) threatening job loss in the event of a strike; (e) threatening
maintenance employees with changed working conditions; (f) dispar-
ately enforcing bulletin board posting policy; and (g) soliciting griev-
ances and promising to remedy them by forming departmental advisory
committees in May–July 2004. There are also no exceptions to the
judge’s dismissal of allegations that the Respondent violated Sec.
8(a)(2) by forming the departmental advisory committees.
2 We will modify the judge’s conclusions of law and recommended
Order, which is set forth in full below, to conform more closely to the
findings herein. We shall also substitute a new notice in conformity
with the Order as modified.
3 All dates are 2004, unless otherwise noted.
objections to the election and unfair labor practice
charges. The judge found that the Respondent commit-
ted a number of unfair labor practices, and that some of
these unlawful acts also constituted objectionable con-
duct affecting the election. As discussed below, we
adopt the judge’s findings that certain conduct by the
Respondent violated Section 8(a)(3) and (1) of the Act,
and his determination that the results of the election must
be set aside and a second election directed. We reverse
his finding, however, that the Respondent violated Sec-
tion 8(a)(1) by disparately enforcing its food and drink
policies against a union supporter.
For the reasons the judge stated, we adopt his finding
that the Respondent violated Section 8(a)(3) by discharg-
ing employee Dennis McSwain.4 The judge additionally
found that the Respondent violated Section 8(a)(3) and
(1) by granting pay increases to maintenance employees
in April and to lead operators in May. For the reasons
the judge stated, we agree with his finding that the Re-
spondent violated Section 8(a)(1) by increasing the pay
of the maintenance employees and the lead operators.
We find it unnecessary to pass on the judge’s finding that
the pay increases also violated Section 8(a)(3), as such a
finding would not materially affect the remedy.5
For the reasons the judge stated, we adopt his findings
that the Respondent violated Section 8(a)(1) of the Act
by (a) soliciting employee grievances; (b) threatening to
terminate employees who picket in support of the Union;
(c) promising an employee he would not be fired if he
removed his prounion T-shirt and insignia; (d) coercively
interrogating, by Human Resources Director Douglas
Lea on April 1, employee McSwain; (e) threatening, by
Supervisor Robert Hasson on February 18, employees
Tina Shuler, Donald Grant, and Robin Braswell with
plant closure if the Union were to come in;6 (f) threaten-

4 In adopting the judge’s finding that McSwain’s discharge was
unlawful, we do not rely on his speculations that Supervisor John Nich-
ols orchestrated the discharge or that the Respondent knew of employee
Billy Hudspeth’s bad relationship with McSwain and therefore secured
a damaging statement from Hudspeth.
5 In finding the 8(a)(1) violation, the judge properly analyzed the
pay-increase allegations under NLRB v. Exchange Parts Co., 375 U.S.
405 (1964). In the course of his analysis, however, the judge stated that
the Respondent had failed to rebut “the presumption” that its increases
were intended to interfere with employee free choice. We disavow that
statement. “The Board makes no presumption that increases granted
during an organizing campaign are unlawful, but it will draw an infer-
ence of improper motivation and interference with employee free
choice from all the evidence and Respondent's failure to establish a
legitimate reason for the timing of the increases.” Cardinal Home
Products, 338 NLRB 1004, 1016 (2003) (citing Speco Corp., 298
NLRB 439 fn. 2 (1990)). For the reasons the judge explained, how-
ever, we agree that such an inference is warranted here.
6 In adopting the judge’s finding that Hasson unlawfully threatened
Shuler, Grant, and Braswell with plant closure, we note that there are
STABILUS, INC. 837
ing, by Supervisor John Nichols in April and May, em-
ployee McSwain with unspecified reprisals for engaging
in union activity; (g) restricting, by Supervisor Dennis
Mehaffey on May 21, employee Fred Sisk from talking
about the Union; (h) threatening, by Mehaffey on May
21, employee Sisk with discipline if he continued to talk
about the Union; (i) closely monitoring, by Supervisor
Bill Vinesett in April and May, employees Clarence
McClure and Scott Stiles after they openly supported the
Union;7 and (j) restricting, by Supervisor Mike Ellington
on May 21, the movements of employees Tony Bollinger
and William Phelps.8
In agreement with the judge, but for different reasons,
we find that the Respondent also violated Section 8(a)(1)
by prohibiting employees from wearing prounion T-
shirts during the election. We need not reach the judge’s
conclusion that the Respondent failed to make the re-
quired showing that special circumstances justified the
application of its uniform policy under the facts of this
case because we find that, even if the Respondent had
made the required showing, its actions here would have
violated the Act for two independent reasons. First, quite
apart from the Respondent’s failure to establish special
circumstances, the record shows that the Respondent
enforced its policy in a selective and overbroad manner
against union supporters. Second, the policy was applied
in a disparate manner to Section 7 activity relative to
comparable non-Section 7 activity.

no exceptions to the judge’s admission into evidence of a written
statement about the February 18 conversation signed by the three em-
ployees, or to the judge’s reliance on that statement as corroboration of
their testimony.
7 In adopting the judge’s finding that Vinesett closely monitored
McClure and Stiles after they came out in favor of the Union, we find it
unnecessary to rely on the judge’s finding that Vinesett did not explain
why he needed to take breaks with both employees or how he had the
time to take breaks with them as well as with other employees.
8 Having adopted the judge’s findings of the foregoing unfair labor
practices, we find it unnecessary to pass on the following additional
8(a)(1) violation findings because they would be cumulative and not
affect the remedy: (a) Lea’s alleged questioning of employee Rick
Myers in mid-February; (b) Manufacturing Manager Thomas Napoli’s
alleged questioning of employee McSwain on April 1; (c) Lea’s alleged
threat of plant closure to employee Myers in mid-February; (d) Me-
haffey’s alleged threat of plant closure to employees Sisk and Robert
Parrot in January; (e) Supervisor Reggie Ballard’s alleged threat of
plant closure to employee Stiles on April 8; (f) Ballard’s alleged threat
of plant closure to employee Sisk in early May; (g) Ballard’s alleged
threat of unspecified reprisals to a group of employees on May 24; (h)
Lea’s alleged restricting, on April 1, of maintenance employees and
employee Scott Mayes from talking about the Union; (i) Supervisor
Kathy Crumbley’s alleged restricting, on April 18, of employees Brian
St. Laurent and Jerry Lockridge from talking about the Union; (j) Me-
haffey’s alleged restricting, in early May, of employee Sisk from talk-
ing about the Union; and (k) Nichols’ and Supervisor Layne Turner’s
alleged closer supervision and monitoring of employee McSwain in
April.
The Respondent maintained a uniform policy, set forth
in its employee handbook. Under that policy, the Re-
spondent required employees to wear shirts bearing the
company name. The Respondent explained that the pur-
pose of this policy was to present a uniform appearance
to customers and to instill a sense of teamwork among
employees. However, the policy did not require tempo-
rary employees to wear a company uniform of any kind.
Moreover, one acceptable style of company shirt but-
toned completely down the front and the Respondent
permitted employees to wear it unbuttoned with T-shirts
underneath displaying various messages. Finally, on
several occasions not long before the election, the Re-
spondent relaxed its enforcement of the policy for short
periods of time based on special circumstances, such as
on the anniversary of the tragedy on 9-11, when the local
football team was in the Super Bowl, and on Halloween.
On May 5, employee Dennis McSwain purchased T-
shirts with prounion slogans inscribed on the front and
back and distributed the T-shirts to other prounion em-
ployees. On at least one occasion in May, Human Re-
sources Director Lea told McSwain that he could not
wear his prounion T-shirt in the plant. At about 3 p.m.
on May 22, the second day of the 2-day election, Super-
visor Jimmy Walker told employee Robert Nix to change
out of his prounion T-shirt into a company shirt. Nix
complied with the instruction and also reported it to em-
ployee Robin Braswell who also changed her shirt.
Shortly thereafter, however, Walker told Braswell that
she could still wear the union shirt as long as she wore a
company shirt over it. In addition, also on the second
day of balloting, Lea asked McSwain as a “favor” to take
his prounion T-shirt off and not display support for the
Union that day. Lea promised McSwain that, if he com-
plied, nobody would fire him. The judge found that
Lea’s promise to McSwain was unlawful. We have
adopted the judge’s finding in this regard. Based on the
foregoing facts, the judge found that the Respondent vio-
lated Section 8(a)(1) of the Act by prohibiting employees
from wearing prounion T-shirts.
Applying a “special circumstances” analysis, see Great
Plains Coca-Cola Bottling Co., 311 NLRB 509, 515
(1993), the judge found that the Rspondent did not claim
that its uniform policy was necessary in order to maintain
production or discipline, or because the employees
worked directly with customers or interacted with the
public as part of their job. He further found that the re-
spondent’s purported desire to portray a uniform appear-
ance for visitors and to instill a sense of teamwork was
undermined by the absence of a requirement that tempo-
rary employees wear company shirts. Thus, the judge
found no special circumstances justifying the union T-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
shirt ban. The Rspondent filed exceptions, arguing that
nondiscriminatory enforcement of a uniform policy does
not violate the Act.
A.
As the Supreme Court has held, employees have a Sec-
tion 7 right to wear union insignia on their employer’s
premises, which may not be infringed, absent a showing
of “special circumstances.” Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 801–803 (1945). These protections
of Section 7 expression have always extended to articles
of clothing, including prounion T-shirts.9 There is no
basis in precedent for treating clothes displaying union
insignia as categorically different from other union in-
signia, such as buttons. See, e.g., Great Plains Coca-
Cola Bottling Co., 311 NLRB at 515 (“The Board treats
article[s] of clothing the same as a button.”).
An employer cannot avoid the “special circumstances”
test simply by requiring its employees to wear uniforms
or other designated clothing, thereby precluding the
wearing of clothing bearing union insignia. The Board
has consistently applied that test where employers have
required employees to wear particular articles of clothing
and have correspondingly prohibited them from wearing
clothing displaying union insignia. For example, in
Great Plains Coca-Cola Bottling Co., supra, the Board
found that the employer had unlawfully banned the wear-
ing of union jackets shortly before an election, based on
the employer’s policy of permitting employees to wear
only company jackets.10 The many Board cases finding
that special circumstances existed amply illustrate that
there is no need to depart from existing precedent to en-
sure that employers’ legitimate interests, for example, in
maintaining a particular public image, are accorded
proper weight.11

9 E.g., Wal-Mart Stores, 340 NLRB 637, 638–639 (2003), enfd. in
relevant part 400 F.3d 1093 (8th Cir. 2005); Aldworth Co., 338 NLRB
137, 203 (2002), enfd. sub nom. Dunkin’ Donuts Mid-Atlantic Distribu-
tion Center v. NLRB, 363 F.3d 437 (D.C. Cir. 2004); Broadway, 267
NLRB 385, 404 (1983); United Parcel Service, 195 NLRB 441, 448 fn.
24 (1972); De Vilbiss Co., 102 NLRB 1317, 1321 (1953).
10 See also Meijer, Inc., 318 NLRB 50, 56–57 (1995) (union jacket
instead of required jacket; test not met with respect to employee in no-
customer-contact area), enfd. 130 F.3d 1209 (6th Cir. 1997).
11 E.g., Con-Way Central Express, 333 NLRB 1073, 1075–1077
(2001) (union cap instead of required hats; test met); Produce Ware-
house of Coram, 329 NLRB 915, 916–918 (1999) (same); Noah’s New
York Bagels, 324 NLRB 266, 275 (1997) (employee defaced the em-
ployer T-shirt he was required to wear, employer prohibited him from
wearing it, the Board applied the “special circumstances” test and
found no violation); Casa San Miguel, Inc., 320 NLRB 534, 540 (1995)
(employee marked her required hospital smock with a prounion mes-
sage, hospital objected, the Board found that the employer had met the
“special circumstances” test).
While the judge found that the Respondent failed to es-
tablish special circumstances, we find it unnecessary to
pass on his conclusion for the following two reasons.12
B.
First, even if the Respondent had carried its burden of
proving that special circumstances justified its uniform
policy here, we would find that the Respondent impinged
on employees’ Section 7 rights because its agents went
beyond enforcing the uniform policy in requiring union
supporters to remove union T-shirts and other displays of
support for the Union that could have been worn consis-
tent with the policy.13 As the judge found, Supervisor
Walker initially told employee Nix, and through Nix
employee Braswell, during the second and final day of
the election, that they could not wear their union T-shirts,
but, shortly thereafter, told Braswell that she could wear
her union T-shirt under a company shirt. Also on the
second and final day of the election, when Respondent’s
human resources director, Lea, solicited employee Den-
nis McSwain to remove his union T-shirt and other union
insignia, Lea observed that “this vote is going to be very,
very close” and “everybody was watching what
McSwain did.” Moreover, as the judge also found, Lea
asked McSwain to take off the union shirt, not to put on
his company shirt or to wear the company shirt over the
union shirt and, unlike Walker, Lea did not clarify the
request at any subsequent time. In addition, Lea asked
McSwain to remove all other visible displays of support
for the Union, displays that unquestionably were consis-
tent with the uniform policy, and McSwain complied by
removing the T-shirt as well as a protractor with a union
logo on it and a union hat. Thus, Respondent’s intention
with respect to McSwain was not to enforce the uniform
policy but to induce an influential employee, on the sec-
ond and final day of the election, to remove all displays
of support for the Union, including his union T-shirt,
which (as acknowledged by Walker) could have been
worn consistent with the uniform policy and in a manner
that still publicly displayed support for the Union.14 The

12 The dissent offers an extended analysis of the question of whether
the judge correctly required a showing of special circumstances. Be-
cause we do not rely on the judge’s reasoning in this regard, we do not
address the dissent’s analysis.
13 The dissent states that this theory was not advanced by the General
Counsel, but the complaint plainly alleges that the Respondent
“[p]rohibited its employees from wearing prounion 'T' shirts because of
their participation in union activities.” Moreover, the facts material to
the incidents in which this prohibition was enforced were fully liti-
gated.
14 The dissent characterizes the request that McSwain remove his un-
ion T-shirt as merely an “incidental aspect of the coercive overtures,”
but the request was hardly incidental as the T-shirt was the most promi-
nent display of support for the Union McSwain was wearing. The
dissent’s further suggestion that Lea’s failure to ask McSwain to put on
STABILUS, INC. 839
Respondent’s overbroad and targeted use of its policy to
force McSwain to take an action that would influence
“everybody” who “was watching what [he] did” would
have been unlawful even if the Respondent had justified
a narrow application of its uniform policy.15 The Re-
spondent thereby violated Section 8(a)(1).16
C.
Second, even if the Respondent had justified its uni-
form policy under the “special circumstances” test and
the Respondent had enforced that policy consistently and
narrowly against union supporters during the election,
the Respondent nonetheless acted unlawfully by dispar-
ately enforcing the policy against statutorily protected
activity while not enforcing it against other similar activ-
ity under similar circumstances.
The Respondent concedes that it permitted all employ-
ees to wear noncompany clothing for short periods of
time on various occasions: employees were permitted to
wear clothing with the logo of the Carolina Panthers, the
hometown football team, leading up to the team’s par-
ticipation in the Super Bowl; employees were permitted
to wear costumes during the Halloween period; and em-
ployees were also permitted to depart from the uniform
policy on the anniversary of the September 11 terrorist
attacks. Given this background, forbidding employees to
wear union T-shirts on the last day of the 2-day election
constituted disparate enforcement.17

a company shirt instead of to remove his union T-shirt or to clarify that
the union shirt could be worn under a company shirt is “meaningless” is
best answered by asking whether Lea would have been satisfied if this
influential union supporter had responded to his request in the waning
hours of a very close election by putting on a fully unbuttoned, button-
down company shirt over his union T-shirt, thereby continuing to dis-
play his support for the Union while fully complying with the Com-
pany’s uniform policy.
15 The dissent mischaracterizes this basis of our holding as based on
discriminatory application of the uniform policy. In fact, the evidence
reveals an overbroad application, i.e., that the Respondent ordered or
asked employees to take off their union T-shirts when the policy did not
require the requests.
16 We need not pass on whether Walker’s statement to Nix would
have constituted a separate violation of Sec. 8(a)(1), absent the dis-
criminatory enforcement discussed below, as such a conclusion would
be cumulative and would not affect the remedy.
17 See Honda of America, 260 NLRB 729 (1982) (rule against wear-
ing union insignia disparately enforced where employer allowed em-
ployees to wear certain other items containing emblems). The cases
cited by the dissent, such as Hertz Rent-A-Car, 305 NLRB 487, 488
(1991), are inapposite as in those cases the Board held that “occasional
lapses in enforcement” involving individual employees did not privi-
lege continued wearing of union insignia in violation of an employer’s
dress policy. See also Kendall Co., 267 NLRB 963, 965 (1983) (“iso-
lated instances where employees wore nonwork-related items (such as a
stickpin worn by an employee for several days”)); United Parcel Ser-
vice, Inc., 195 NLRB 441, 450 (1972) (“The examples of violation only
show that UPS is having problems in attempting to carry out its neat
uniform policy effectively. The evidence does not in any way show
Accordingly, quite apart from whether the Respon-
dent’s uniform policy was or could have been justified
under the special circumstances test, we would find that
the restrictions the Respondent imposed on the wearing
of union T-shirts violated Section 8(a)(1).
The Respondent maintained an unwritten policy pro-
hibiting food in work areas, and a written policy prohibit-
ing beverages in work areas except in a company-
provided spill-proof container. The judge found that on
April 1, the Respondent violated Section 8(a)(1) by dis-
parately enforcing its food and drink policies against a
union supporter. For the reasons that follow, we reverse.
On April 1, maintenance employee Brian St. Laurent,
an open supporter of the Union, was assigned to work on
the 7 p.m. shift in the final assembly area under the su-
pervision of Production Supervisor Kathy Crumbley.
When St. Laurent arrived for work, he brought with him
a bag of food from Wendy’s and a bottle of Pepsi. Al-
though his first scheduled break was not for 3 hours, at
about 7:15 p.m. he sat down and began eating his dinner
at a table in the maintenance work area, near the produc-
tion floor. Crumbley approached and told St. Laurent
that he was not allowed to eat or drink on the production
floor and that he should take his dinner to the cafeteria.
St. Laurent complied.
St. Laurent testified that, at the time Crumbley spoke
to him, more than 10 other employees were either eating
or drinking beverages from noncompany containers, yet
Crumbley did not talk to any of them. He testified that
Jerry Lockridge, another open union supporter, was
standing behind him when Crumbley spoke to him.
Lockridge testified at the hearing, but he did not testify
about this incident. Crumbley denied seeing anyone else
violating the policies when she spoke to St. Laurent. St.
Laurent also testified more generally that he had seen
employees eating and drinking in the production area
without being told they could not do so. Employees Cla-
rence McClure and James McKinney similarly testified
that employees did not always follow the food and drink
policies.
The judge found that Crumbley told St. Laurent he
could not eat in the production area, that other employees
have been known to violate the food and drink policies,
and that there was no evidence that the Respondent had
enforced these rules before April 1. Although acknowl-
edging that the allegation might seem trivial, he found
that the Respondent violated Section 8(a)(1) by dispar-
ately enforcing its food and drink policies as part of a

UPS is letting down on this effort." Only “occasional lapses” shown
during 40-year period.) Here, in contrast, the exceptions were deliber-
ate and companywide and for occasions analogous to and no less sig-
nificant than a union election (e.g., Halloween and the Super Bowl).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
general crackdown on union supporters after the Union
filed its petition. We disagree.
St. Laurent acknowledged that he was violating food-
and-drink rules on the evening in question.18 He testified
that others were as well, and that Crumbley spoke only to
him. Crumbley denied seeing anyone else violating the
policies at that time. The judge did not discredit either
witness, but St. Laurent’s testimony did not directly con-
tradict Crumbley’s denial. Reading their testimony to-
gether, it is reasonable to find that Crumbley did not no-
tice other employees breaking the food-and-drink rules.
Moreover, Lockridge, who could have corroborated St.
Laurent’s testimony, failed to testify about the incident.19
The judge relied on the general testimony of McKin-
ney and McClure that other employees disregarded the
policies. His reliance on their testimony is misplaced.
Both employees worked in a different department with
different supervision. Their testimony about lax en-
forcement is not directly probative of the manner in
which supervisors in the final assembly area, particularly
Crumbley, enforced these policies. St. Laurent acknowl-
edged that Crumbley was a “my way or else” type of
supervisor who enforced the Respondent’s rules and
policies more strictly than did other supervisors.20
Crumbley, furthermore, testified about having previously
enforced the food or drink policies with other employ-
ees.21 In these circumstances, testimony that other su-
pervisors in other departments were lax in enforcing food
and drink rules does not prove that an exacting supervi-
sor’s enforcement of the rules in this instance was dispa-
rate.22 And, as stated above, the evidence fails to demon-
strate that Crumbley cracked down on St. Laurent while
knowingly letting other violators off the hook. Accord-

18 The judge suggested that St. Laurent was not in a work area. St.
Laurent admitted that the work table was not a recognized break area,
however. St. Laurent also acknowledged that he was not supposed to
be on break at the start of the shift when this incident occurred. The
judge observed that Crumbley did not reprimand St. Laurent for taking
an early unscheduled break. But her leniency in that regard weakens
any inference that she was singling out St. Laurent as part of a “general
crackdown” on union supporters.
19 The lack of corroboration from Lockridge weakens the General
Counsel’s case. See C & S Distributors, 321 NLRB 404, 404 fn. 2
(1996) (failure to call a potentially corroborative witness may be con-
sidered in determining whether the General Counsel has established a
violation by a preponderance of the evidence), citing Queen of the
Valley Hospital, 316 NLRB 721, 721 fn. 1 (1995).
20 St. Laurent also acknowledged that he and Lockridge did not like
to work for Crumbley and had complained to their maintenance super-
visor about her.
21 Although not specifically related to the food or drink policies, the
record contains evidence of Crumbley’s prior strict enforcement of
other respondent rules.
22 For the same reason, the absence of evidence about enforcement
of the policies before April 1 does not suffice to prove the policies were
disparately enforced on this single occasion.
ingly, we reverse the judge’s finding and dismiss the
allegation.
AMENDED CONCLUSIONS OF LAW
1. The Respondent, Stabilus, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. By the following acts and conduct, the Respondent
has violated Section 8(a)(1) of the Act:
(a) Interrogating an employee about his union sympa-
thies.
(b) Threatening employees with plant closure.
(c) Threatening to fire employees who picketed on be-
half of the Union.
(d) Threatening an employee with unspecified reprisals
for engaging in union activity.
(e) Prohibiting a prounion employee from talking with
employees about the Union at work.
(f) Threatening an employee with discipline for talking
about the Union.
(g) More closely monitoring and supervising prounion
employees.
(h) Restricting the movement of prounion employees.
(i) Soliciting employee grievances and impliedly
promising to remedy the grievances.
(j) Promising an employee he would not be fired if he
agreed not to display support for the Union.
(k) Granting pay increases to its lead operators and
maintenance employees.
(l) Prohibiting employees from wearing prounion T-
shirts.
3. The Respondent has violated Section 8(a)(3) of the
Act by suspending Dennis McSwain on June 14, 2004,
and discharging him on June 17, 2004.
ORDER
The National Labor Relations Board orders that the
Respondent, Stabilus, Inc., Gastonia, North Carolina, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about their un-
ion sympathies.
(b) Threatening employees with plant closure, dis-
charge, or other unspecified reprisals if they select a un-
ion to represent them or otherwise engage in union ac-
tivities.
(c) Promising employees they will not be fired if they
refrain from engaging in activities in support of the Un-
ion.
(d) Impliedly promising to remedy employees’ griev-
ances by soliciting their grievances.
STABILUS, INC. 841
(e) Prohibiting employees from engaging in nondisrup-
tive conversations about the Union that do not interfere
with work.
(f) Threatening employees with discipline for engaging
in nondisruptive 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) More closely monitoring and supervising employ-
ees who support the Union.
(i) Granting pay increases to employees in order to in-
duce them to not support the Union.
(j) Prohibiting employees from wearing prounion T-
shirts.
(k) Suspending, discharging, or otherwise discriminat-
ing against any employee for supporting the Union or
any other labor organization.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, 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 Dennis McSwain whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Dennis McSwain's unlaw-
ful suspension and discharge, and within 3 days thereaf-
ter 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Gastonia, North Carolina, copies of the at-
tached notice marked "Appendix."23 Copies of the notice,

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed 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 re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
[Direction of Second Election omitted from publica-
tion.]

MEMBER SCHAUMBER, dissenting in part.
My colleagues find for the first time that the well-
recognized right of employees to display union insignia
extends to substituting a prounion T-shirt for a required
company uniform. Under their theory, unless an em-
ployer can carry the burden of establishing the existence
of “special circumstances,” employees can cavalierly
disregard preexisting and consistently enforced uniform
policies and, presumably, show up to work dressed head-
to-toe in clothing touting union causes. And even if an
employer could carry the “special circumstances” bur-
den, my collegues will still find a violation on disparate
enforcement grounds if the employer has ever permitted
isolated exceptions to its uniform policy, as, for example,
to celebrate Halloween or commemorate the 9-11 trag-
edy. Because my colleagues’ decision represents a radi-
cal rebalancing of the relevant interests and a sharp cur-
tailment of legitimate management prerogatives, I re-
spectfully dissent.1
I.
For a number of years, the Respondent had maintained
a uniform policy requiring employees to wear shirts bear-
ing the company name. The expressed purpose of this
policy was to present a uniform appearance to customers
and to instill a sense of teamwork among employees.
While on rare occasions, the Respondent relaxed the pol-

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 In all other respects, I join my colleagues’ decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
icy, it was generally consistently enforced. Employee
witnesses acknowledged that they were expected to wear
only company shirts at work.
Before the election, and without interference from the
Respondent, many employees wore or otherwise dis-
played union buttons, pins, stickers, and other union in-
signia in the workplace. In early May, employee Dennis
McSwain purchased T-shirts with prounion slogans and
distributed them to prounion employees. The judge
found that on at least one occasion in May, Human Re-
sources Director Lea told McSwain that he could not
wear his prounion T-shirt in the plant. On May 22, Su-
pervisor Jimmy Walker also instructed employees Robin
Braswell and Robert Nix, who were wearing the proun-
ion T-shirts, to comply with the uniform policy. Apply-
ing a “special circumstances” analysis, the judge found
no “special circumstances” justifying the union T-shirt
ban and that the Respondent’s enforcement of its uniform
policy violated Section 8(a)(1).
While my colleagues assert they do not reach this con-
clusion by the judge, they, nevertheless, affirm the
judge’s “special circumstances” analysis, conclude that
the right to display union insignia extends to wearing
articles of clothing, and further assert that an “employer
cannot avoid the ‘special circumstances’ test simply by
requiring its employees to wear uniforms or other desig-
nated clothing, thereby, precluding the wearing of cloth-
ing bearing union insignia.” Unlike my colleagues, I
disagree that a “special circumstances” analysis applies
in this case and find that the Respondent lawfully en-
forced its preexisting uniform policy.
The Board, with Supreme Court approval, has long
held that the wearing of union buttons or insignia is pro-
tected under Section 7 of the Act.2 But the law is equally
well settled that there is no absolute right to wear union
insignia, or other union attire, in the workplace. Rather,
a balance must be struck between the employees’ right to
self-organize and the employer’s right to maintain pro-
duction and discipline. Republic Aviation, 324 U.S. at

2 In Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), the Su-
preme Court affirmed the Board’s conclusion in Republic Aviation
Corp., 51 NLRB 1186 (1943), enfd. 142 F.2d 193 (2d Cir. 1944), that
the employer had unlawfully discharged three employees for wearing
union steward buttons. Quoting the Board, the Court approved the
conclusion that “‘the right of employees to wear union insignia at work
has long been recognized as a reasonable and legitimate form of union
activity, and the respondent’s curtailment of that right is clearly viola-
tive of the Act.’” Id. at 802 fn. 7 (quoting 51 NLRB at 1187–1188).
The Board based its conclusion on Armour & Co., 8 NLRB 1100
(1938), which held that a union officer was entitled to wear a button
signifying his position in the labor organization and that the employer
unlawfully discharged him for refusing to remove it. See 51 NLRB at
1188.
797–798; United Parcel Service, 312 NLRB 596, 597
(1993), enf. denied 41 F.3d 1068 (6th Cir. 1994).
In general, this balancing of employee and employer
rights involves application of the “special circumstances”
principle. Since 1945, a substantial body of law has
evolved as to what constitutes “special circumstances”
justifying restrictions on the wearing of union insignia.
The Board has found such “special circumstances” where
the display of union insignia may jeopardize employee
safety, damage machinery or products, exacerbate em-
ployee dissension, or unreasonably interfere with an em-
ployer’s public image, or when necessary to maintain
decorum and discipline among employees. See Airport
2000 Concessions, LLC, 346 NLRB 958, 960 (2006);
Komatsu America Corp., 342 NLRB 649, 650 (2004);
Nordstrom, Inc., 264 NLRB 698, 700 (1982).
The question of whether there are “special circum-
stances,” however, has arisen either in cases where (i) an
employer without a uniform policy or dress code prohib-
ited employees from wearing union insignia or attire,3 or
(ii) an employer with a uniform policy or dress code pro-
hibited employees from adding union insignia (such as a
button or pin) to the required attire.4 But the Board has

3 In some of these cases, no “special circumstances” were estab-
lished justifying a restriction on wearing union insignia or attire. See,
e.g., NLRB v. Autodie International, Inc., 169 F.3d 378, 384 (6th Cir.
1999) (absent dress code, employer failed to demonstrate “special
circumstances” or “an announced policy of general applicability justify-
ing its restrictions of protected Section 7 activity”); NLRB v. Mead
Corp., 73 F.3d 74(6th Cir. 1996) (absent dress code, employer unlaw-
fully prohibited union pins and T-shirts with protected message); North
Hills Office Services, 346 NLRB 1099 (2006) (absent a requirement
that a uniform be worn by night-shift employees, employer unlawfully
directed them to remove union T-shirts); Painting Co., 330 NLRB
1000, 1006 (2000), enfd. 298 F.3d 492 (6th Cir. 2002) (absent a dress
code or rule about wearing T-shirts, employer unlawfully prohibited
union T-shirts while permitting other T-shirts); Boise Cascade Corp.,
300 NLRB 80, 84–85 (1990) (absent a dress code, employer unlawfully
prohibited T-shirts with protected message).
In other cases, even in the absence of a dress code or uniform policy,
employers have established “special circumstances” justifying restric-
tions on union attire. In these cases, the restrictions were generally
justified because the message was obscene, denigrated the employer, or
might arouse dissension among the employees. See, e.g., Southwestern
Bell Telephone Co., 200 NLRB 667, 669–671 (1972) (permitting em-
ployer to ban sweatshirt criticizing the employer in an obscene man-
ner); Midstate Telephone Corp. v. NLRB, 706 F.2d 401, 404 (2d Cir.
1983) (employer could ban wearing of T-shirts that denigrated public
utility’s image by suggesting that company was coming apart); Bor-
man’s, Inc. v. NLRB, 676 F.2d 1138 (6th Cir. 1982) (permitting em-
ployer to ban employees from wearing T-shirts bearing the slogan “I’m
tired of bustin’ my ass,” which employer perceived as unfair and inac-
curate); Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 358–359 (7th
Cir. 1956) (permitting employer to forbid the wearing of buttons bear-
ing a slogan disruptive of production and employee discipline).
4 See, e.g., NLRB v. St. Francis Healthcare Centre, 212 F. 3d 945,
959–960 (6th Cir. 2000) (prohibition on union pins unlawful, in part,
because hospital did not show “an announced policy of general appli-
STABILUS, INC. 843
never held that, where an employer lawfully maintains
and consistently enforces a policy requiring employees to
wear a company uniform, its employees have a right un-
der Section 7 to disregard the policy and wear union at-
tire in place of the required uniform.5 Indeed, the Board
has implicitly recognized that an employer may promul-
gate and enforce a nondiscriminatory uniform rule. See
Noah’s New York Bagels, 324 NLRB 266, 275 (1997)
(finding that employer lawfully enforced policy requiring
employee to wear company T-shirt and lawfully insisted
that she remove a company shirt with an added phrase
mocking its products, but that employer unlawfully pro-
hibited employee from wearing union buttons on com-
pany T-shirt); Casa San Miguel, Inc., 320 NLRB 534,
540 (1995) (employer lawfully refused to allow nursing

cability justifying its restrictions”), quoting Autodie International, Inc.,
supra; Meijer, Inc. v. NLRB, 130 F.3d 1209 (6th Cir. 1997) (employer
unlawfully prohibited union pins and buttons on uniforms); United
Parcel Service, supra at 1073 (employer lawfully enforced uniform
policy to ban lapel pins on uniforms); Pay’n Save Corp. v. NLRB, 641
F.2d 697 (9th Cir. 1981) (employer unlawfully maintained and dispar-
ately enforced ban of buttons on store jackets); Burger King Corp. v.
NLRB, 725 F.2d 1053 (6th Cir. 1984) (employer lawfully prohibited
wearing buttons on uniforms); NLRB v. Harrah’s Club, 337 F.2d 177
(9th Cir. 1964) (employer lawfully prohibited wearing buttons on uni-
forms); Hertz Rent-A-Car, 305 NLRB 487 (1991) (employer lawfully
prohibited union steward pins on rental car employees’ uniforms);
Malta Construction Co., 276 NLRB 1494 (1985) (employer unlawfully
prohibited union stickers on company hardhats), enfd. 806 F.2d 1009
(11th Cir. 1986); Kendall Co., 267 NLRB 963, 964–965 (1983) (em-
ployer lawfully prohibited nonwork-related items such as pins and key
chains because of safety concerns under lawful dress code); Honda of
America, 260 NLRB 725, 729 (1982)(employer unlawfully maintained
and disparately enforced rule prohibiting wearing of union insignia on
required uniform); United Parcel Service, supra, 195 NLRB at 441 fn.
2 (employer lawfully prohibited union buttons on drivers’ uniforms).
5 None of cases cited by the majority address or decide the issue
posed here. Great Plains Coca-Cola Bottling Co., 311 NLRB 509
(1993), does not involve the substitution of union attire for required
company attire under a nondiscriminatory uniform policy. In that case,
supervisors told different employees that they should not be wearing
union attire but should be wearing, in one incident, a “Coke jacket”
and, in another incident, a “Coke uniform.” Id. at 515. The judge cited
no evidence of a uniform policy and the employer did not argue that the
supervisors were enforcing an established policy. Id. The judge’s
cursory discussion of these incidents suggests that if there were any
“policy”, it was not well established nor was it strictly enforced or
consistently followed. Further, it was applied disparately to union
supporters in that case. Id.
Meijer, Inc., 318 NLRB 50, 56–57 (1995), enfd. 130 F.3d 1209 (6th
Cir. 1997), likewise does not involve nondiscriminatory enforcement of
a uniform policy to preclude substituting union attire for company
attire. The employer’s dress code applied to employees dealing with
customers. The judge found that the respondent disparately enforced
the dress code by prohibiting employees from wearing union pins and
also found that, on one occasion, a supervisor unlawfully prevented an
employee from wearing a union jacket in a noncustomer area. It is not
clear that there were exceptions to that finding as the discussion by the
Board and the court of appeals centers on the wearing of union pins.
assistant to wear required uniform smock with prounion
slogan printed directly onto the uniform fabric).6
Furthermore, in Republic Aviation, supra, the Supreme
Court predicated the right to wear union insignia on an
employee’s right to communicate with other employees
regarding self-organization at the workplace. Here, the
Respondent did not interfere with its employees’ rights in
this regard. As the judge found, employees freely wore
and otherwise displayed union insignia. They were sim-
ply not permitted to substitute a prounion T-shirt for the
required company shirt.
I conclude that, in balancing employee and employer
rights as required under Republic Aviation, supra, a “spe-
cial circumstances” analysis is inappropriate here. If
employees have the right to wear union attire instead of a
company uniform, the employer’s right to promulgate
and enforce reasonable, nondiscriminatory apparel rules
is negated entirely. Such a result would not strike a bal-
ance between employee and employer rights; rather, it
would completely submerge the employer’s rights.7

6 In these cases, the finding that the employer lawfully prohibited the
employee from wearing union attire did not turn on a showing of “spe-
cial circumstances.” Rather, the critical fact in both cases was that the
employer was enforcing its nondiscriminatory uniform requirement.
See Flamingo Hilton-Laughlin, 330 NLRB 287, 292–293 (1999) (find-
ing that absent evidence of discriminatory application, hotel lawfully
enforced preexisting, nondiscrimnatory rule against wearing hotel
uniform off hotel premises without permission).
7 As the cases cited above demonstrate, neither the Board nor any
court has squarely faced and decided the issue of whether Sec. 7 per-
mits an employee to substitute union attire for a uniform or attire re-
quired by an employer’s lawful, nondiscriminatory uniform policy or
dress code. The case before us presents that precise issue and, hence, is
a case of first impression.
The majority asserts that a “special circumstances” test applies and
that, under Republic Aviation, only by showing “special circumstances”
can any restriction be placed on employees’ Sec. 7 right to wear union
insignia. I disagree that the “special circumstances” analysis is appli-
cable here.
As noted earlier, the scope of what constitutes “special circum-
stances” has developed through cases deciding whether employees
could add or attach union insignia to a uniform or attire required by
their employer’s policy. The “special circumstances” analysis, there-
fore, focuses on the effect that the added or attached insignia might
have on safety, production, public image, or other employer concerns
that would justify its prohibiting the wearing of insignia on the uniform.
Significantly, unquestioned in that analysis is the employer’s right to
establish the uniform policy or dress code in the first place. Aside from
cases of unlawfully promulgated or disparately enforced policies, the
employer’s right to institute the policy is undisputed. Thus, the nature
of the “special circumstances” analysis is distinctly different and, con-
sequently, ill-suited for considering the question posed here: does an
employee have a right to substitute union attire for the attire required by
the employer.
Further, the majority’s assertion that only a showing of “special cir-
cumstances” can overcome an employee’s Sec. 7 rights gives primacy
to the employee’s rights over the employer’s competing right to estab-
lish reasonable rules. The elevation of employee rights over the em-
ployer’s rights simply is not supported by Republic Aviation or any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
Thus, I would hold that where, as here, an employer
maintains and consistently enforces a lawful uniform
rule, Section 7 does not guarantee employees the right to
wear union attire in place of the required company uni-
form. Accordingly, I would find that the Respondent did
not violate the Act by prohibiting employees from wear-
ing union T-shirts in place of company shirts.8
II.
I also cannot agree with my colleagues’ alternative
conclusions that the Respondent violated Section 8(a)(1)
by disparate enforcement of its policy or by Lea’s “selec-
tive” enforcement of the policy against McSwain on May
22. The General Counsel litigated, and the judge found, a
violation, incorrectly in my view, on the basis that the
Respondent did not show any “special circumstances”
justifying enforcement of its policy. Neither of the ma-
jority’s alternative theories was litigated by the General
Counsel, and it is inappropriate to substitute them at this
stage in the proceedings.
Moreover, in any event, the judge found that the Re-
spondent consistently enforced the policy. The only ex-
ceptions were when the Carolina Panthers went to the
Super Bowl in 2004, on Halloween, and on the anniver-
sary of the September 11 terrorist attacks. The judge did
not find that these few exceptions established that the
Respondent had disparately enforced its uniform policy.

case law. Indeed, the core principle of Republic Aviation, and subse-
quent Board cases, is one of balancing and accommodating the equal
but competing rights of employees and employers. Inherent in the
notion of balancing and accommodating those competing rights is that
both employer and employee interests must be fairly considered and
weighed. The “special circumstances” test as applied by the judge
totally ignores the employer’s undisputed right to establish reasonable
workplace rules and policies and, thus, would not fairly weigh and
balance the competing interests. Accordingly, I find that the “special
circumstances” analysis inappropriate here.
8 The judge in his analysis said that the failure to apply the policy to
temporary employees undermined the policy’s stated purpose of por-
traying a uniform appearance and instilling a sense of teamwork among
employees. I disagree. Contrary to the judge, the analysis is unaffected
by the fact that Respondent did not require temporary employees to
wear a company uniform. Because I find that the employees have no
Sec. 7 right to disregard the Respondent’s uniform policy, it is not
relevant that the policy did not extend to temporary employees. In
addition, as stated above, one of the reasons for the uniform was to
instill a sense of teamwork among employees. The Respondent could
reasonably decide that the “team” consisted of its regular employees,
excluding temporaries. I do not second guess the Respondent’s busi-
ness judgment to establish a uniform policy nor fault its decision not to
extend the policy to temporary employees. See, e.g., NLRB v. Colum-
bus Marble Works, 233 F.2d 406, 413 (5th Cir. 1956) (“[A]s we have
so often said: management is for management. Neither Board nor Court
can second-guess it or give it gentle guidance by over-the-shoulder
supervision.”).
I agree that the evidence does not support a finding of
disparate enforcement.9
My colleagues next find that Lea’s request that
McSwain remove all union paraphernalia on May 22,
including his prounion T-shirt, constituted unlawful se-
lective enforcement of the uniform policy. While I agree
that Lea’s interaction with McSwain on that date violated
the Act, I would not find that the request to remove the
union T-shirt, standing alone, was unlawful. On May 22,
Lea asked McSwain, as a “favor,” not to display any
support for the Union that day. He also asked him to
take off his prounion T-shirt, his union hat, and the pro-
tractor with a union logo attached to his badge and to
“vote no today.” Lea promised McSwain that, if he
complied, nobody would fire him.
As my colleagues correctly observe, “[Lea’s] intention
with respect to McSwain was not to enforce the uniform
policy but to induce an influential employee . . . to re-
move all displays of support for the union. . . .” Lea’s
obvious goal was to have McSwain eschew all union
support for the day, including wearing even those insig-
nia that the Respondent had tolerated throughout the
campaign. Those requests were coupled with the unlaw-
ful promise that McSwain would be retained if he com-
plied. Lea’s request that McSwain remove his T-shirt,
therefore, was simply an incidental aspect of the coercive
overtures to McSwain to refrain from showing support
for the Union. On that basis I would agree there was a
violation. Merely asking McSwain to remove the shirt,
however, standing alone would not constitute selective or
overbroad enforcement, as it was consistent with the pol-
icy and the Respondent’s established practice.
My colleagues point out that, when Lea requested that
McSwain remove his T-shirt, he did not give McSwain
the option of wearing the front-buttoning shirt open over
the prounion T-shirt, as the policy permitted. But the
record does not show whether McSwain even wore the
front-buttoning style of company shirt. Further, the re-
cord reflects that employees were well aware that the
uniform policy permitted the option of wearing the front-
buttoning shirt open over a noncompany shirt, so the fact
that Lea did not reiterate that option is meaningless.10

9 See Hertz Rent-A-Car, 305 NLRB 487, 488 (1991) (finding occa-
sional lapses in an otherwise consistent application of a detailed uni-
form policy do not establish inconsistent and discriminatory enforce-
ment) ; Kendall Co., 267 NLRB 963, 965 (1983) (same)); United Par-
cel Service, 195 NLRB 441, 450 (1972) (same).
10 My colleagues ask rhetorically whether Lea would have been sat-
isfied if, in response to his request, McSwain continued to wear his
prounion T-shirt exposed under an unbuttoned company shirt. Obvi-
ously, that is not the case in this instance, since, as already noted, Lea
was not attempting to enforce the policy but was trying to persuade
McSwain to abandon all visible support for the Union that day.
STABILUS, INC. 845
Thus, I do not agree that the incidental request alone to
remove the prounion T-shirt constituted unlawful en-
forcement of the T-shirt policy. 11
For the foregoing reasons, I dissent in part.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT coercively question you about your un-
ion sympathies.
WE WILL NOT threaten you with plant closure, dis-
charge, or other unspecified reprisals if you select Inter-
national Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America (UAW) (the
Union) to represent you or if you otherwise engage in
union activities.
WE WILL NOT promise you, directly or implicitly, that
we will not terminate your employment if you refrain
from supporting the Union.
WE WILL NOT solicit your grievances and impliedly
promise to remedy them if you refrain from supporting
the Union.
WE WILL NOT prohibit you from engaging in nondis-
ruptive conversations about the Union that do not inter-
fere with your work, and WE WILL NOT threaten you with
discipline for engaging in nondisruptive 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 more closely monitor and supervise you
because you support the Union.
WE WILL NOT grant you pay increases in order to in-
duce you to not support the Union or any other union.

11 For the same reason, I would not find that Walker’s statement to
Nix was a violation even if he may not have mentioned the front-
buttoning shirt option. Although Nix did not testify whether or not
Walker mentioned that option, Walker testified that he did mention it.
WE WILL NOT prohibit you from wearing prounion T-
shirts.
WE WILL NOT suspend, discharge or otherwise dis-
criminate against any of you for supporting the Union 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 the Board’s
Order, offer Dennis McSwain full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Dennis McSwain whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to Dennis
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.

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 on 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, 2004,2 alleging that
Stabilus, Inc. (the Respondent) violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act (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 discrimina-

1 The charge in Case 11–CA–20386 was filed on June 14, 2004. The
charge in Case 11–CA–20396 was filed June 22, 2004, and the charge
in Case 11–CA–20443 was filed August 9, 2004.
2 All dates are in 2004, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
tory suspension and discharge of one employee. On October 13,
the Respondent filed its answer denying the unfair labor prac-
tice allegations. By order dated October 12, the complaint was
consolidated for hearing with election objections filed by the
Union in Case 11–RC–6567.
The Union filed the petition in Case 11–RC–6567 on March
30, seeking to represent a unit of employees employed by the
Respondent at the Gastonia plant. Pursuant to a Stipulated Elec-
tion 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 em-
ployees, quality employees, shipping and receiving employ-
ees, schedulers, warehouse employees, and plant clerical em-
ployees employed by Stabilus, Inc., at its Gastonia, North
Carolina facility; but excluding all office clerical employees,
manufacturing engineers, special technical engineers, associ-
ate 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 af-
fecting the results of the election. After conducting an initial
investigation, the Regional Director issued a Report on Objec-
tions 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 wit-
nesses and cross-examine opposing witnesses, to offer docu-
mentary evidence and present oral arguments as to evidentiary
and procedural issues. On March 11, 2005, the General Coun-
sel, the Respondent, and the Charging Party filed well-written
briefs advocating their respective positions. On the entire re-
cord, after having considered the arguments raised on brief, I
make the following

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.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures gas springs for
the automotive and furniture industries at its facility in Gasto-
nia, 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.
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 Ameri-
can operations also included a manufacturing facility in Mex-
ico. The evidence in the record indicates that the Respondent at
one time had another manufacturing facility in Colmar, Penn-
sylvania, which was the subject of an unfair labor practice pro-
ceeding. See Gas Spring Co., 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 on the findings and
conclusions therein to establish animus, motive, or any other
element of the General Counsel’s case because the events por-
trayed 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 presi-
dents. The next level of management consisted of 10 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 Re-
spondent’s production manager during the organizing campaign
with responsibility for the manufacturing operations that em-
ployed the unit employees. The Respondent had three focus
area managers reporting to Napoli, i.e., Brett Whobrey,4 Reggie
Ballard, and John Nichols, responsible for final and paint, tub-
ing 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

4 Whobrey’s name is misspelled in the record as Red Jubri.
STABILUS, INC. 847
unit employees.5 Finally, the Respondent employed a number
of lead persons in each department who acted as nonsupervi-
sory group leaders. The lead persons were included in the stipu-
lated 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 oc-
curred around this time. The Union continued to hold regular
meetings with the employees over the next 3 months, until the
election on May 20 and 22. The complaint alleges that the Re-
spondent 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 Respondent’s facil-
ity.
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 Respon-
dent focused its efforts at restricting the wearing of union T-
shirts and hats pursuant to a purported uniform policy. The
testimony further revealed that, within the last few weeks be-
fore the election, alleged discriminatee Dennis McSwain paid
to have T-shirts silk-screened with prounion slogans and dis-
tributed these free of charge to other employees. Several of the
unfair labor practice allegations relate to the Respondent’s reac-
tion to the display of these T-shirts in and around the Respon-
dent’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 Man-
agers, 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 contra-
dicted the testimony of the witnesses. They thus became a tool
to test the credibility of the witnesses.

5 Lea identified the departments as the rod department, tubing and
main assembly, final assembly and paint, and warehouse and shipping
department.
On March 31, the Union, through a group of 10–15 employ-
ees, 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 web-
site could be accessed by anyone, including the Respondent’s
supervisors and managers. The evidence establishes that al-
though 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 allega-
tions 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 cam-
paign to convince its employees to vote against the Union. Lea
initially testified that he first became aware of the union cam-
paign 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 cir-
culated 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
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 in-
tense campaign that are alleged to have crossed the line and
threatened or coerced the employees in their choice in the elec-
tion. In mid-April and mid-May, the Respondent granted wage
increases to maintenance employees and group leaders, respec-
tively. 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 communica-
tion 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 848
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 depart-
ment. 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 oppor-
tunity 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 prac-
tice charges. Another of Lea’s recommendations was to con-
duct 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 prepar-
ing for the election.
At the end of the hard-fought campaign, the election was
held on two nonconsecutive dates, May 20 and 22. The result-
ing 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 Coun-
sel alleges functioned as labor organizations which were domi-
nated 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 sus-
pension and discharge, I shall discuss those allegations when
reviewing the 8(a)(3) allegations.
B. The 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 em-
ployees in mid-February and early April, and that Production
Manager Napoli interrogated employees in early April. Only
the first instance of 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 Resolu-
tion of this allegation turns exclusively on credibility.

6 The incident involving Myers contains two other allegations that
will be addressed here, a statement alleged in par. 8(c) to have created
the impression of surveillance, and a threat of plant closure alleged in
par. 8(d).
Myers was hired by the Respondent October 4, 1993. At the
time of the hearing, he was a training and certification coordi-
nator 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 partici-
pate in the group which presented the Union’s demand for rec-
ognition to Richeson on March 31. Myers signed a union au-
thorization card on March 8 but could not recall when he at-
tended 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, “[W]hat 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, 5 to 5-1/2 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 smok-
ing 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 supervi-
sors 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 con-
ceded it could have occurred in February. In any event, accord-
ing to Lea, the conversation was no more than a greeting and
STABILUS, INC. 849
was not the conversation Myers claimed. With respect to the
subject of plant 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 Re-
spondent 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 Respon-
dent points to the alleged timing of the conversation, before the
union campaign was formally launched at Brymer’s first meet-
ing 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 the General
Counsel, that he was probably aware of union activity among
employees as early as mid-February. The Respondent also ar-
gues 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 informa-
tion 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 de-
nial 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 state-
ments 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 circum-
stances, 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 back-
ground 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 them-

7 269 NLRB 1176 (1984), enfd. sub nom UNITE HERE Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985).
selves, 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 cam-
paign 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 smok-
ing area during a break, was not inherently coercive, the infor-
mation 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 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 con-
text 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 impres-
sion of surveillance. The Board’s test for such allegations is
whether employees could reasonably assume from the state-
ment in question that their union activities had been placed
under surveillance. Flexsteel Industries, 311 NLRB 257 (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 em-
ployer had embarked on a course of monitoring its employees’
union activities. Clark Equipment Co., 278 NLRB 498, 503
(1986). Accord Register Guard, 344 NLRB 1142 (2005). Simi-
larly, 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’ un-
ion activities. The evidence in the record reveals that employ-
ees had been discussing the Union since January and the Un-
ion’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 Myers 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 state-
ment, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 850
Respondent would rather close the plant and relocate than deal
with a union. This type of threat has routinely been found viola-
tive 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 find-
ing that Lea’s questioning of Myers as to his thoughts on ongo-
ing union activity was unlawful. What might otherwise be a
spontaneous, casual inquiry took on a coercive tone when ut-
tered in the context of this threat. Accordingly, I find that the
Respondent unlawfully interrogated and threatened Myers dur-
ing 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 went to the meeting in a caravan. Several of these em-
ployees 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 until 9 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, corrobo-
rated 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 a.m.,
the time at which the 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 ques-
tion him about this incident, the Respondent inquired about it
on cross-examination. Resolution of this allegation turns pri-
marily 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 re-
sources department to which she had only recently been pro-
moted. At the time of the alleged unfair labor practice, Bollin-
ger 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 a.m., she heard coworker 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, Bloome, and Scott Stiles, who was leaving the meeting at
the same time, returned to the union hall and wrote out a state-
ment documenting this alleged unfair labor practice. The state-
ment she signed at the time, offered into evidence by the Gen-
eral 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-exami-
nation, 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 2 months before he testified at
the hearing. Bloomer attended union meetings and openly dis-
played his support for the Union by wearing buttons and stick-
ers to work. Bloomer testified that he also attended this meeting
after working all night. He was in the same caravan of cars as
Bollinger. According to Bloomer, as he was leaving the meet-
ing, 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 restau-
rant 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 re-
called that this happened about 5–10 minutes after the employ-
ees 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 and that Lea was not there. On redirect, the
General Counsel was able to have Bloomer testify that someone
could have exited the restaurant unseen during the 5–10 min-
STABILUS, INC. 851
utes 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 state-
ment 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 fur-
ther 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 tes-
tify 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 inci-
dent, 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, “[T]here’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 restau-
rant, or that Lea was with a woman. His recollection, thus, dif-
fers dramatically from that of the other witnesses. This differ-
ence 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
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

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 the testimony through
leading questions.
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 5 minutes
after the others, he did not see Bollinger and Stiles come back
into the hall to write out a statement. On redirect by the Charg-
ing 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 Respon-
dent 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 testi-
fied 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 Bumgard-
ner’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 pur-
portedly prepared contemporaneously. Because of these incon-
sistencies, 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852
Respondent was spying on them. I find this to be more likely
than that they deliberately fabricated evidence of such surveil-
lance. 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
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. Ac-
cordingly, because I find that the General Counsel has not sus-
tained his burden of proof as to this allegation, I shall recom-
mend dismissal of that portion of paragraph 8(b) alleging sur-
veillance by Lea.
b. May 18 incident
On May 18, 2 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 approxi-
mately 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 evi-
dence a handwritten statement, signed by the three witnesses
and a fourth employee, Roddy Orr, who did not testify, pur-
portedly documenting this incident.10 Ballard testified as a wit-
ness for the Respondent, denying that he was anywhere near the
meeting. Again, resolution of this allegation turns on credibil-
ity.
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 imme-
diate supervisor in the past. He was an active union supporter, a
member of the VOC and was among the employees who pre-
sented the Union’s demand for recognition to Richeson on
March 31. Bradley testified that, at about 2 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 em-
ployees in the room all looked and saw him.
Carnatzie, who is Gentle’s girlfriend, has worked for the Re-
spondent 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 meet-

9 My credibility finding here is similar for Lea. Although I found
many aspects of his 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.
ing at about 2 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 an “ULP”
had been committed. According to Carnatzie, she responded,
“[Y]ou just seen Reggie Ballard, didn’t you?” Carnatzie re-
called 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 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 testi-
mony 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 win-
dow. Gentle testified, as did the others, that he made a com-
ment 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. Accord-
ing 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 acknowl-
edged 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 particu-
lar, I note that the only witnesses called to establish this viola-
tion 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 wit-
ness 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

11 On cross-examination, Gentle testified that he said, “[T]here’s a
ULP. That’s Reggie Ballard outside.”
STABILUS, INC. 853
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 dis-
missal 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 Me-
haffey, his supervisor at the time, sometime around the end of
January. Sisk recalled that Robert Parrott, another maintenance
employee, was also present. According to Sisk, the conversa-
tion 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 go-
ing, 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 un-
derway. On cross-examination, Sisk acknowledged that Me-
haffey 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 3 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, “[I]f 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 Me-
haffey 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 7 days a week trying to keep up with produc-
tion commitments, that it would be impossible for the Respon-
dent 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 conflict-
ing 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 Re-
spondent, 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 sup-
ported 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 clos-
ing was not even a matter of discussion in the months leading
up to the union vote. This testimony was contradicted by nu-
merous other witnesses and by the text of the captive audience
speeches given by Lea and Richeson which specifically ad-
dressed the topic of plant closure.
Based on the credited testimony of Sisk, I find that the Re-
spondent, 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 state-
ment 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 al-
leged.
b. Hasson
Three employees testified for the General Counsel regarding
a conversation with Bob Hasson, a quality engineer and admit-

12 TIPS is an acronym for “Threats, Interrogation, Promises, and
Surveillance,” often used as shorthand for teaching supervisors what
not to do during a union campaign.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 854
ted supervisor, that occurred in the outside smoking area on
February 18. This was 2 days after union organizer Brymer’s
first meeting with the Respondent’s employees. The three em-
ployees were Tina Shuler, a quality lab technician employed by
the Respondent since July 1985, Donald Grant, a rework opera-
tor 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 state-
ment was transcribed to a piece of paper, they signed it again.
This later statement is in evidence and corroborates their testi-
mony.
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 de-
nied 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 train-
ing from the Respondent. According to Hasson, the last time he
received such training was at least 5 years before this conversa-
tion, at a time when he did not work for the Respondent.
I found the testimony of Shuler, Grant, and Braswell regard-
ing 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
rewrite history by claiming to have merely reported his experi-
ences 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 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 train-
ing 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 vio-
lated 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 conversa-
tion 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 dis-
crepancy 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 Re-
spondent 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 dur-
ing 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 un-
ionized 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 atmos-
phere 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 conversa-
tion 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 ob-
served that Ballard seemed to be afflicted with the same per-
sonality trait as Lea, i.e., a certain loquaciousness that led him
to speak freely and often to anyone who would listen. It is per-
fectly 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
STABILUS, INC. 855
restrictions. Accordingly, I find that Ballard did threaten Stiles
that the Respondent would 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 testi-
fied 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 inquir-
ing about the union campaign, said he thought things were go-
ing 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 fre-
quently 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. Ac-
cording 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 testi-
mony about having frequent conversations with Ballard is con-
sistent 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 Re-
spondent’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 gener-
ally had only a vague recollection of what was said at these
meetings. The General Counsel’s witnesses did recall, not sur-
prisingly, 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

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.
same words: “this is what you start with when you go into ne-
gotiations, 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 con-
ceded that neither Lea nor Richeson ever said that the employ-
ees would automatically lose the wages and benefits they cur-
rently enjoyed if the Union were selected as their bargaining
representative. The General Counsel’s witnesses also acknowl-
edged 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 pro-
jections that were used and recalled Lea or Richeson making
the statements that appear in the projections.
Lea admitted holding three series of meetings with employ-
ees 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 de-
nied 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 meet-
ings he conducted as a prop to show the employees how collec-
tive bargaining works. According to Lea, what he told employ-
ees was that he had been in a union environment and had nego-
tiated 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 employ-
ees.
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 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 bar-
gaining 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 projec-
tions 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 856
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 717 (2005); Noah’s New York Ba-
gels, Inc., 324 NLRB 266, 267 (1997), and cases cited therein.
See also La-Z-Boy, 281 NLRB 338, 339 (1986) (employer’s
reference to a blank sheet of paper not unlawful). Even credit-
ing 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 proc-
ess 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 repre-
sentative, 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 Respon-
dent 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 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 tech-
nician 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 meet-
ing, 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.

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.
The copy of the overhead used at this meeting, placed in evi-
dence by the Respondent, tends to corroborate Phillips’ testi-
mony. 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 em-
ployees specifically. The following overheads reflect the state-
ments 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 facili-
ties 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

 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 produc-
tion 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 state-
ment, 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 cor-
rectly 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 addi-
tion, Richeson also advised the employees that, if the Respon-
dent chose to permanently relocate the transferred operations, it
STABILUS, INC. 857
would have to bargain with the Union about it. I find that noth-
ing in these statements crossed the line of permissible speech.
Accordingly, I shall recommend that this allegation of the com-
plaint 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 un-
specified reprisals for engaging in union activities. The alleged
threats attributed to Lea and Nichols involved 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 2 days after the election, on May 24, to a group of em-
ployees he encountered in the cafeteria. The General Counsel
called one of the employees who was present, James McKin-
ney. The Respondent called as its witnesses, in addition to Bal-
lard, 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 2 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, “[I]f 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 em-
ployees while they were eating lunch a couple days after the
election. Ballard could not recall everyone who was there but
he did remember Jenkins and McKinney being there.15 Ballard
also did not remember being called over by one of the employ-
ees. 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: “[T]he 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

15 Ballard recalled that another employee, Keith Nix, was there. The
other witnesses who were there do not identify Nix as being present.
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. Hud-
son 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 talk-
ing 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 man-
ager, 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 pro-
duction, or get more done. The other comment Hammett re-
called 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 “every-
body needs to cross their t’s and dot their i’s.” A little later in
the conversation, Ballard said, “[W]e’ve got to get back to busi-
ness and get production rolling.”
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 some-
one 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

16 As noted at the beginning of this decision, the tally at the election
showed the Union lost by two votes with two challenged ballots. This
conversation occurred before the Union filed its objections to the elec-
tion.
17 The Q-1 status was a certification the Respondent needed to re-
main a vendor for Ford Motor Company.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 858
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 pro-
duction 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 Respon-
dent. 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 testi-
mony. In addition, Hammett’s recollection of the critical state-
ment 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 produc-
tion 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 postelection 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 bargain-
ing 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 supervi-
sor, 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, main-
tenance employees were supervised by a maintenance supervi-
sor. 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 em-
ployees’ unhappiness with this arrangement had been the sub-
ject 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, however, that he was aware that
the maintenance employees did not like working under produc-
tion 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 mainte-
nance employees taking orders from maintenance supervisors
only. This change was fully implemented by August, about 5
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 prom-
ise was made based on Bloomer’s testimony. The statement
described by Bloomer is ambiguous. It is unclear what Ken-
drick meant when he said, “[D]epending on the outcome of the
election.” Significantly, he did not tell Bloomer that the Re-
spondent 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 conver-
sation 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. Para-
graph 8(m) alleges that the Respondent prohibited employees
from wearing prounion T-shirts.18 Finally, at paragraphs 8(o)

18 The complaint also alleges, at par. 8(n), that Lea promised
McSwain he would not be terminated if he removed his union T-shirt.
STABILUS, INC. 859
and (p), the General Counsel alleges that the Respondent pro-
hibited 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 as-
signed to work in the final assembly area. As described above,
he had dual supervision, from Mehaffey, the maintenance su-
pervisor, and Kathy Crumbley, a production supervisor in final
assembly. St. Laurent testified that, on April 1, he arrived for
work at about 7 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 produc-
tion floor, that he had to take it to the cafeteria. Jerry Lock-
ridge, another union supporter, was present. Although Lock-
ridge 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. Cla-
rence McClure corroborated St. Laurent in this regard by testi-
fying that he routinely carries food and beverages in non-
Stabilus containers throughout the work area, in view of super-
visors, 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 20 times, including at times when su-
pervisors were present. According to McKinney, no supervisor
has ever said anything to him about this. St. Laurent did con-
cede, 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 p.m.

As with the other allegations involving McSwain, this will be discussed
later in the decision.
19 Although Lockridge testified as a witness for the General Counsel,
he did not testify regarding this incident.
Crumbley, testifying for the Respondent, recalled an incident
where she saw St. Laurent sitting at a worktable 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 cafete-
ria. 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 drafted to document her
enforcement of various rules in 2001, 2002, and 2003. How-
ever, 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 Coun-
sel’s witnesses were not contradicted on this point, that em-
ployees have been known to violate the unwritten policy re-
garding 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 peti-
tion. In fact, this incident occurred the day after a group of
employees presented the Union’s demand for recognition to
Richeson and 2 days after the petition was filed. Under the
circumstances, I find that the Respondent did disparately en-
force 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 ma-
chine. 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 ap-
proval 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

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 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 860
allowed nonwork-related notices to be posted without approval
from human resources.
The Respondent’s employee handbook contains the follow-
ing 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 remov-
ing 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 nondiscriminatory application of its rules.
The Board, in St. Joseph’s Hospital, 337 NLRB 94, 95
(2001), reaffirmed the principles applicable to this type of alle-
gation, as set forth in Honeywell, Inc., 262 NLRB 1402 (1982),
enfd. 722 F.2d 405 (8th Cir. 1983):

In general, there is no statutory right of employees or a union
to use an employer’s bulletin board. However, where an em-
ployer 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 ad-
vertisements, or, in general, any nonwork related matters, it
may not validly discriminate against notices of union meet-
ings 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 1074 (2004).
The evidence here establishes that, while the Respondent al-
lows 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 Re-
spondent 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 dis-
cussed later in this decision. Employees Braswell and Nix testi-
fied 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 prounion 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 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 en-
forced 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 em-
ployees, had worn non-Stabilus shirts and hats at work, the
exceptions to the rule appear to be rare. Most employees ac-
knowledged that they were expected to wear only company-
logo clothing at work. At the same time, the Respondent’s wit-
nesses acknowledged that it did not require temporary employ-
ees to wear company clothing. At the time of the union cam-
paign, there were temporary employees in street clothes work-
ing side-by-side with the Respondent’s employees in their Sta-
bilus 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 noncompany clothing
during other special occasions. For example, when the home-
town Carolina Panthers wear in the Super Bowl in 2004, em-
ployees 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 Hal-
loween without interference by the Respondent.
The Board and the courts have consistently held that an em-
ployee’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 530 (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
STABILUS, INC. 861
would unreasonably interfere with a public image which the
employer has established as part of its business plan. Quantum
Electric, Inc., 341 NLRB 1270, 1280 (2004), and cases cited
therein. Accord Ogihara America Corp., 343 NLRB 809
(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 demon-
strated no special circumstances that would justify such a re-
striction 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 in-
distinguishable 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 Re-
spondent’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 Ser-
vice, 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 toolboxes, 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 restric-
tion 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 mainte-
nance department employees working on the night crew on
April 1 to address the subject of union activity in the work-
place. 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 meet-
ing along with Production Supervisors Crumbley and Vinesett.
All three employees recall Lea saying that they were not al-
lowed 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 “worktime 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 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 nonwork 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 ap-
pears 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 super-
visors did not contradict this understanding of the practice at
the Respondent’s plant.
Lea testified that he went to the plant that night, an admit-
tedly unusual event, because he had received a call from Super-
visor 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 toolcrib
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 talk-
ing 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 Crum-
bley to parrot the words Lea claimed he used. When first asked
what Lea told the employees, Crumbley said, “[T]hey could do
it [talk about the Union] on their breaktime, in the parking lot,
anytime that it was nonworking production floor area or work
time.” Lea, Whobrey, and Crumbley all acknowledged being
aware that the maintenance department employees overwhelm-
ingly supported the Union.
It is well established that an employer violates Section
8(a)(1) of the Act if it imposes restrictions on employees’ con-
versations that prohibit union talk while allowing other non-
work-related topics to be discussed in the workplace. Industrial
Wire Products, 317 NLRB 190 (1995). See also Opryland Ho-
tel, 323 NLRB 723, 729 (1997). Such rules are much broader
than a nonsolicitation 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 free to adopt nondiscriminatory policies that
forward its legitimate objectives of maintaining plant produc-

21 Bloomer recalled Lea making a similar statement about “drawing
battle lines.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 862
tivity 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 di-
rected only at discussions concerning the Union, the NLRB’s
conclusion that the prohibition violated the NLRA is sup-
ported by substantial evidence.

Brandeis Machinery & Supply Co. v. NLRB, supra, 412 F.3d 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 nonwork 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 workplace. 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 Who-
brey 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 2 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 em-
ployees in many different departments. The Respondent used
its putative concerns about production to single out these em-
ployees 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
worktime 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
workstation and asked to speak to him. Mayes’ machine was
running at the time. He and Lea stepped away from the ma-
chine. According to Mayes, Lea said he looked upon Mayes as
one of the leaders of the organizing committee. Lea then pro-
ceeded 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 conversa-
tion 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, be-
cause 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 consis-
tent 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
any violation of the Act. Because of the timing of his conversa-
tion 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 de-
sire to represent the employees, to quash any effort by pro-
union employees to organize their coworkers. 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 em-
ployer to target union-related conversations, while allowing
other nonwork conversations, violates Section 8(a)(1) and I so
find.
Several weeks later, the Respondent again found an opportu-
nity to caution union supporters about conversations suppos-
edly interfering with production. It is undisputed that, on April
8, Crumbley spoke to St. Laurent and Lockridge, the two main-
tenance 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 con-
ceded on cross-examination that in response to this new direc-
tive, 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, Crum-
bley’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 mainte-
nance 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 support-
ers. According to Crumbley, she spoke to Lockridge after ob-
serving him standing and talking for 25 minutes with one of the
STABILUS, INC. 863
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 prob-
lem, 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 Lock-
ridge’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 mainte-
nance 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 evi-
dence that union-related conversations by St. Laurent, Lock-
ridge, 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 nonwork-
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 unlawful
interference in violation of Section 8(a)(1) of the Act. Crum-
bley’s conduct in this regard was simply a continuation of
Lea’s efforts since April 1 to limit union talk among the em-
ployees.23 Accordingly, I find that the Respondent violated
Section 8(a)(1) of the Act on April 18, as alleged in the com-
plaint.
The complaint also alleges that Maintenance Supervisor Me-
haffey 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 employ-
ees, Mehaffey approached him at work and said, “[I]t’s nothing
personal between you and Doug Lea, but you’re no longer al-
lowed 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 ap-
proached 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

22 When asked about this by the Respondent’s counsel on cross-
examination, Lockridge denied that he stood around talking to an op-
erator for 20 minutes.
23 Shuler and Mayes both testified that Lea told employees, at meet-
ings they attended during the month of April, that they could not talk
about the Union at work, that these conversations were limited to
breaktimes and nonwork 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 prounion employees activities within the plant.
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 some-
thing Sisk said about the Union. Sisk denied that Mehaffey
warned him not to “intimidate” or “harass” employees. Accord-
ing 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 tell-
ing Sisk that he was not allowed to talk to more than one em-
ployee 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 Me-
haffey, 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 com-
plaints had been filed and that people felt threatened and in-
timidated by his comments. Mehaffey told Sisk he had no in-
tention 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 uncom-
fortable. 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 is unbe-
lievable. 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 prounion
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 mo-
bility and frequent opportunity to communicate with the more
stationary production employees. If the Respondent allowed
this group of prounion 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.

24 Whobrey corroborated this portion of Mehaffey’s testimony and
identified the two employees who had complained about Sisk “bother-
ing them” about the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 864
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 Me-
haffey’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 supervis-
ing and monitoring the work of prounion 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 con-
duct toward them changed noticeably once they openly dis-
played 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 cam-
paign, 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 ac-
knowledged on cross-examination that, despite this apparent
loser 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 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 employ-
ees.25
I found Vinesett’s explanation for his activities during the
union campaign unbelievable. He had worked for the Respon-
dent for 10 years, had been a supervisor for 2 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 ar-
gues 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 pat-
tern of the Respondent’s behavior toward the maintenance de-
partment, toward other leading union supporters like Scott
Mayes and, as will be shown, toward McSwain. The Respon-
dent, 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 coworkers 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 Sec-
tion 8(a)(1) of the Act by more closely supervising and moni-
toring the work of prounion 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 prounion 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 Elling-
ton, 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 re-
sponded, 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 remov-
ing hazardous waste from the paint line. Bollinger relayed El-
lington’s instruction to Phillips and he and Phillips worked

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.
STABILUS, INC. 865
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 dis-
pute that Ellington usually conveyed work instructions to one
or the other and expected the instruction to be relayed to the
other.
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 sup-
porter, 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 toolbox, 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 rea-
son to fabricate this incident since they are still being super-
vised by Ellington on a daily basis. Ellington’s denial was self-
serving. Accordingly, I find that Ellington in fact instructed
Bollinger, 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
prounion maintenance employees had to campaign for the Un-
ion. On May 21, there had already been 1 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 con-
duct violated Section 8(a)(1) of the Act as alleged in the com-
plaint.
10. Solicitation of grievances via formation of
employee committees
Paragraph 8(q) of the complaint alleges that various supervi-
sors, on various dates before and after the election, “initiated,
sponsored, promoted, and formed department advisory commit-
tees 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 8(a)(2) allegation in paragraphs
13 and 14. I will address those allegations together in the last
section of this decision.
C. The 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 Section 8(a)(1) and (3) of the Act. There is no dis-
pute that the Respondent gave its employees in these two cate-
gories wage increases in April and May, respectively. The issue
is whether the increases were granted for discriminatory rea-
sons and/or to influence the outcome of the election, or whether
the raises were part of a plan already in place before the Re-
spondent 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 sys-
tems, 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 con-
sisting of five levels (job classifications). Within each level,
employees could increase their rate of pay by obtaining addi-
tional 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 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 sys-
tem, maintenance employees were classified either as a level V
maintenance technician or a level VI maintenance specialist.26
Within each level, employees progressed at 1-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 ex-
perience in electronics. Joel Kendrick, who was a maintenance
supervisor during the campaign and became the assistant main-
tenance 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 percent of the mainte-
nance 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 engen-
dered considerable unhappiness among the maintenance techni-
cians. 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 meet-
ings held in January and February, lead operators and mainte-
nance 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.

26 Level V techs were paid at the rate of $19.53 per hour and level VI
specialist received $20.09 per hour.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 866
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 Re-
spondent 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 ex-
pected 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 testi-
fied.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 em-
ployee questions. Although Kendrick did not recall Twist say-
ing that the employees had to complete training before receiv-
ing 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 com-
bined job classification or about their rate of pay. They also
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 mainte-
nance 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. Accord-
ing 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 mainte-
nance employees. Bollinger and Phillips received the same
raise in their April 22 paycheck without being required to un-
dergo any additional training. Rice essentially corroborated
Bollinger and Phillips, acknowledging that the facilities main-
tenance 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 con-
firmed the testimony of the General Counsel’s witnesses. Ken-
drick 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 em-
ployees 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

27 St. Laurent, Lockridge, and Gentle also testified about this meet-
ing.
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 manage-
ment of the maintenance department.
Although the stated rationale for giving a raise to mainte-
nance 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 em-
ployees a 50-cent-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 em-
ployees 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 imple-
mented. Kendrick also testified that he did not know why the
facilities maintenance employees received a raise in April be-
cause 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. Al-
though 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 wage in-
crease 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
cents 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 em-
ployees. By mid-April, when the raise went into effect, the
Union had filed its petition and an election was imminent.
STABILUS, INC. 867
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 bene-
fits during an election campaign is not per se unlawful, the
Board will draw an inference of improper motivation and inter-
ference 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), affd. 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 545 (2002), and cases cited
therein. Accord Sun Mart Foods, 341 NLRB 161 (2004).
I find that the Respondent has not rebutted the presumption
here with respect to either the timing of the increase or its an-
nouncement. 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. Al-
though 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 activ-
ity among its employees. At most, the Respondent had decided
to combine its level V and level VI maintenance jobs and pro-
vide training to the lower-paid employees so that they, eventu-
ally, 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 em-
ployees 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 purport-
edly 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.
Based on the above, I find that the Respondent violated Sec-
tion 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 op-
erators 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 Re-
spondent had decided to recertify all the leads on every ma-
chine in the plant, give them a new base wage and eliminate the
need to recertify 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 longstanding 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 with-
out 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 recertify every year. In a
busy department with more employees, the leads were pressed
for time and had difficulty recertifying. 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 nonpay-for-
skills level V at meetings in early March. According to Lea and
Rice, some of the lead operators at the meeting voiced objec-
tion to this idea and the Respondent decided to hold off imple-
menting it until Rice had a chance to meet with the lead opera-
tors 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 plantwide
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 reclassify 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 four lead operators were already receiving $19.53 per
hour and received no raise. The other lead operators received

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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 868
raises ranging from $.66 to $3.21 per hour. In all, 28 lead per-
sons received raises in May.
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 ad-
justment for lead operators. Then, almost 2 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 an-
nouncement 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 employ-
ees’ 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 Re-
spondent 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
8(a)(1) allegations in the complaint that I have previously de-
ferred ruling on. I will now consider all of these allegations
together because credibility of McSwain and his opposing wit-
nesses is key to their resolution.
McSwain had been employed by the Respondent at the Gas-
tonia plant since December 11, 1998. During the relevant pe-
riod, from January to June, 2004, he worked in the tubing de-
partment, running line 4 on the A shift, working from 7 a.m.
until 7 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 re-
ported 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

30 Although the degree of union support among lead persons was not
as strong as it was among the maintenance employees, the Respon-
dent’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.
illness and subsequent death, he was a hardworking, depend-
able 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 Re-
spondent’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
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 re-
turned 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 top-
ics. On April 1, Lea asked McSwain how he felt about the Un-
ion. 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 big-
gest 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 elec-
tion when he saw McSwain wearing a union button. According
to Lea, he said, “I’m surprised at that Dennis.” McSwain an-
swered 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 T-shirts that
McSwain had made and was distributing in the shop, conversa-
tions 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 discrep-
ancy during cross-examination, McSwain testified that he did

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.
STABILUS, INC. 869
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 su-
pervisors 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 inves-
tigator what happened during specific instances. The Respon-
dent 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. Never-
theless, 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 reason-
able 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 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. Ac-
cording 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 ques-
tioned 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 Na-
poli 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 some-
one 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 Respon-
dent could address these concerns was by setting up a commit-
tee. 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 certifica-
tions 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.
Because none of the other employees showed up for this first
meeting, another was scheduled for the following week. Every-
body showed up for this meeting. The committee first met with
Bill Jordan, the individual in charge of the Respondent’s Kai-
zen program.33 Jordan gave a class on the guidelines the com-
mittee had to follow to change company procedures. The com-
mittee then moved to a conference room in the human re-
sources 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, Wil-
liams 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

32 As noted above, Napoli admitted asking McSwain to participate in
such a committee.
33 Kaizen is a process improvement program first developed in Japa-
nese manufacturing facilities which uses work teams to solve produc-
tion and similar problems. The Respondent had utilized such a program
since about 1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
Napoli and Rice had promised McSwain that he would run the
committee and that Nichols would not be involved. Rice re-
sponded 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 com-
plaint 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 meet-
ing in Rice’s office and Napoli admitted soliciting McSwain to
be on the committee. Napoli and Rice dispute McSwain’s tes-
timony 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 de-
partment, would be responsible for its activities. Rice also cor-
roborated 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 com-
plained that Nichols called him a “flunky.” Npoli, on the other
hand, denied receiving any complaints from McSwain after the
committee was formed. According to Napoli, after the commit-
tee 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.”
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 commit-

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-xamination that, had McSwain not
come forward with the issues he raised, no committee would have been
formed.
tee. 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 com-
mittee 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 backup 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 organiz-
ing a committee with a leader, subleader, 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 regard-
ing 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 recom-
mendations 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 re-
sult of Napoli’s solicitation of grievances during his conversa-
tion 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 cam-
paign that the Respondent was attempting to resolve their
grievances without the need for a union. As such, the conduct

36 Shortly after the election, Jackson was promoted to supervisor.
STABILUS, INC. 871
amounted to an implied promise of benefits and violated Sec-
tion 8(a)(1) of the Act as alleged at paragraph 8(q) of the com-
plaint. Traction Wholesale Center Co., 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 matter of perception on McSwain’s
part. None of the other employees who were at the initial or-
ganizational meeting of the committee corroborated McSwain
in this regard. Although it is true that all testified for the Re-
spondent 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 let-
down 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 commit-
tee. 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 opera-
tions clearly conveyed to McSwain that this was the role left for
him.
McSwain testified further that, at one of the committee meet-
ings, 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, Penn-
sylvania. 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 Re-
spondent’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, “[T]his is just UAW bullshit.”
McSwain told Nichols that this wasn’t just something the Un-
ion 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 em-
ployees 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, “[L]et me tell you
something, I’ll fire any s— of a b— that pickets with the Un-

37 The article quotes a union official as saying that the Respondent
would owe striking employees “more than $1 million” in backpay.
ion.” 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 Nich-
ols 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 com-
mittee’s existence at which he was in the room with only Jack-
son 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. Al-
though he did not recognize the flyer when shown it at the hear-
ing, he acknowledged being aware of it.38 Nichols also denied
making the specific threat attributed to him by McSwain. Ac-
cording 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 con-
ducted 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.
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 pre-
sent but sat by silently was contradicted by Mason and Wil-
liams 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 com-
plaint 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 credi-
bility. 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 Nich-
ols in a discussion of what happened in Pennsylvania. His rec-

38 Napoli testified that he had seen this flyer when someone left it in
his mailbox at work.
39 In this respect, Mason and Williams corroborate McSwain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 872
ollection that “words were exchanged” supports McSwain’s
testimony as to the heated nature of the conversation. More-
over, 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 Respon-
dent, 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
toolbox. McSwain testified that, not long after displaying these
indicia of union support, sometime near the end of April, Nich-
ols 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. Ac-
cording to Nichols, he said nothing to McSwain about union
buttons, hats, or T-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.
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 T-shirts supporting the Union and distributed them to
his coworkers. When the Union told him it was okay to do this,
McSwain and his wife had a number of T-shirts printed up, at
their own expense, with slogans on the front and back suppor-
tive of the Union. On the front of the T-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!

40 Lea testified, for example, that he had several conversations with
McSwain, before and during the union campaign, about Nichols. Ac-
cording to Lea, McSwain expressed his belief that Nichols was an idiot
and didn’t know what he was doing.
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 ma-
chine, 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 T-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 sug-
gesting 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 “conse-
quences” to McSwain’s changed position and now open sup-
port for the Union was an implied threat of unspecified repri-
sals. Accordingly, I find this violation as alleged in the com-
plaint.
McSwain testified further that Lea saw him giving one of his
shirts to another employee on May 12, the same day that Nich-
ols threatened him. According to McSwain, Lea asked him who
was selling those shirts. McSwain said no one, that he was giv-
ing them out to employees who supported the Union.41 Lea then
told McSwain that although he was allowed to display anything
he wanted, he could not wear the T-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 T-shirts on the side
of the van. According to Kelly 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 K.
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 T-shirts on company property. K. McSwain

41 The Respondent attempted, without success, to show that
McSwain tried to make money from the sale of these T-shirts. Not a
single employee testified that he paid for these shirts. They all corrobo-
rated McSwain’s testimony that the shirts were free. The Respondent
was also unable to show that McSwain was reimbursed by the Union
for the cost of making these shirts.
STABILUS, INC. 873
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, “Den-
nis, you work more hours than anybody. Everybody was look-
ing 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, “[W]hat 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 re-
frain, “there’s going to be consequences.”
McSwain testified about one more conversation with Lea re-
garding his T-shirts. On May 22, the final day of voting,
McSwain wore his T-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 T-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 au-
thority 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 un-
ion T-shirt, a protractor with the union logo on it, and his union
hat. He went to work and engaged in no other activity in sup-
port of the Union that day.
Lea generally denied making any threats to McSwain regard-
ing his union activities and he specifically denied the conversa-
tion on May 22 in which he allegedly promised that McSwain
would not be fired if he removed his T-shirt and other union
paraphernalia. As noted previously, Lea admitted to having a
conversation with McSwain, about 1–2 weeks before the elec-
tion, regarding the union T-shirts. According to Lea, he saw
McSwain coming out of the employee entrance from the pro-
duction area during a break, wearing one of these T-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,
“[Y]ou know the rules.” Lea asked McSwain to change his shirt
and McSwain agreed. According to Lea, he had no further con-
versation with McSwain that day and did not see him wearing
the T-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 T-shirts hang-
ing on the doors. Because he didn’t recognize her, Lea stopped
and asked K. 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 oth-
erwise 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 en-
countered 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 K.. 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 pro-
hibition on McSwain’s wearing of the union T-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 T-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 individ-
ual like Nichols to have a favored expression and use it repeat-
edly, 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 when-
ever 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 T-shirt even if he did not threaten any “con-
sequences.”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 T-shirts in
the parking lot is patently unbelievable. Why would McSwain
have “tore up” his wife for doing something that he fully sup-
ported? It is clear that McSwain and his wife voluntarily made
up the T-shirts and distributed them to other union supporters.
McSwain simply would not have been upset about his wife

42 As noted above, Lea admitted expressing surprise when he first
saw McSwain wearing a union button.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 874
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 Re-
spondent violated the Act when Lea promised, on May 22, that
McSwain would not be terminated if he removed his union T-
shirt. I find McSwain’s version of this conversation more
credible than Lea’s denial. I note that Lea had a practice of
asking employees to remove union T-shirts whenever he saw
them being worn. I have also found credible McSwain’s testi-
mony 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 T-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 treat-
ment of him after he openly displayed his support for the Union
in April. Although McSwain may not have had the best work-
ing 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 scru-
tinize his work. According to McSwain, after he started wear-
ing 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 es-
tablished 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 3
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 re-
sponded 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 a.m. 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, “[T]hey were screaming for
parts.” McSwain started up his line and began work. At about 7
a.m., 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 a.m., 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, “[D]on’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 em-
ployees. McSwain left his machine running, expecting to eat
quickly and return. He recalled seeing Billy Hudspeth, an em-
ployee 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 upset about having to work alone. The only con-
versation 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, “[Y]ou’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
p.m. 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 p.m., 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,
“[Y]ou 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
STABILUS, INC. 875
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 be-
fore 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 con-
firmed that McSwain had clocked out, but then said, “[W]e’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. McSwain objected, saying, “[T]hat
s.o.b. is not going to walk me out of the plant.” Napoli then
intervened and said he would walk McSwain out. Before leav-
ing, Rice asked him to sign the paper, presumably his discipli-
nary 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 jok-
ing with her in the morning about going home when he found
out Paysour wasn’t coming in. She testified that she didn’t be-
lieve 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
and 1:30 p.m., 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

43 The form, which is in evidence contains the notation, with Rice’s
initials: “refused to sign.”
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 hadn’t clocked out.44 After speaking to
Turner, Hagan went back to McSwain’s line to run it. Accord-
ing 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 1-1/2 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 6–13–04 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, “[J]ust between
you and me, there’s people saying it could be the Union.” Al-
though Turner and Ballard contradicted Hagan as to these con-
versations, 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

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 p.m., as he testi-
fied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 876
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 rea-
son 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 un-
der 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

45 Even Kelly Rice, testifying for the Respondent, said it was a mat-
ter of “common sense.”
out that Dennis had left Karen went over to start the machine
up. We found that the machine would not run due to the car-
riage 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 morning. The reason I am writing this is because I
truly believe that 1 of the reason he left was due to the ex-
tensive 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 Respon-
dent seized upon this memo as a basis for initiating the investi-
gation 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. Al-
though Turner did say this in his testimony, I found his belated
attempt to rewrite 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 bur-
dens 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 inci-
dent 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 re-
sources 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
well being. 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 Nich-
ols involvement other than his presence at a meeting where the

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 inves-
tigation 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.
STABILUS, INC. 877
decision was made.48 Also significant in considering the credi-
bility 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 to his attention and that he con-
ducted 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 infrac-
tion.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 meet-
ing 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

48 Nichols attempted to explain his apparent noninvolvement 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 morn-
ing.
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.
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 wit-
nesses, he researched the Respondent’s past practice and came
up with two prior instances where the Respondent had termi-
nated an employee for walking off the job. Based on this, he
recommended to Lea that McSwain be terminated. Rice admit-
ted 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 for-
warded to Rice the next day. Turner also contradicted Rice on
this point.
The Respondent’s witnesses then describe a meeting that oc-
curred 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 a discussion of McSwain’s dedica-
tion 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 main-
tained by the former human resources manager. Rice had no
independent knowledge of the specifics leading to her termina-
tion. He only knew what was contained in the disciplinary re-
cords. As to Brown, Rice testified that Turner brought this inci-
dent to his attention because he had been the supervisor in-
volved. 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 reassigned to a job she did not like, she became angry and
told the leadman she was going home. The leadman 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 testi-
fied 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 878
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, the
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
the General Counsel and the Charging Party, records of three
other employees who were disciplined for leaving work without
authorization. These terminations occurred on July 31, Novem-
ber 13, and February 23, 2000. The only information about
these incidents is what is contained in the records. The Respon-
dent 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 Respon-
dent’s motives at the time it made the decision to terminate
McSwain.50
In Wright Line,51 the Board held that, in cases where em-
ployer motivation is the issue, the General Counsel must first
establish, by a preponderance of the evidence, that union or
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 circum-
stantial evidence to establish elements such as knowledge and
animus, acknowledging the reality that direct proof of motiva-
tion 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 Gen-
eral 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 em-
ployer “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 1003 (2004).

50 The 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 su-
pervisor. 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).
I find here that the General Counsel has met his initial bur-
den of proving that McSwain’s union activity was a motivating
factor in the decision to suspend him on June 14 and to dis-
charge 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 T-shirts bearing statements of union support
that had to be troubling to the Respondent because they sug-
gested 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 Re-
spondent’s management to feel betrayed.
The evidence in the record also clearly establishes the Re-
spondent’s antiunion animus. I have found that the Respondent
committed a number of independent 8(a)(1) violations in re-
sponse 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 Respon-
dent’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 Respondent’s harsh treat-
ment 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 em-
ployee like this leave in the middle of the day, which seemed to
be Turner’s concern, the Respondent undertook an investiga-
tion designed to lead to his termination. I conclude that the
General Counsel has met his burden and presented sufficient

52 Heffner, McSwain’s lead person, testified, for example, that just 3
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 expla-
nation.
STABILUS, INC. 879
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 bur-
den, 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. Respon-
dent claimed to have suspended and then fired McSwain be-
cause 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, Nich-
ols, 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 be-
cause 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

53 Respondent’s attempt at the hearing to cast McSwain’s willing-
ness in terms of greed, i.e., “he liked making the overtime,” is un-
seemly. There is nothing wrong with an employee trying to earn as
much as he can to support his family. Respondent certainly took advan-
tage 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 sched-
uled hours of work!
54 Even if McSwain didn’t tell Hagan he was sick on June 13, he cer-
tainly 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 encoun-
tered 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
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 ter-
minated in 1999 and 2000. Even with respect to this evidence,
one employee who was terminated by Turner in the 2000 inci-
dent 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 rea-
sonable 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 rerun election was a possibility. By suspending
McSwain on June 14 and terminating him on June 17, the Re-
spondent has violated Section 8(a)(1) and (3) of the Act. Mid-
night Rose Hotel & Casino, supra, and cases cited therein; Doc-
tors’ Hospital of Staten Island, Inc., 325 NLRB 730 fn. 3
(1998). See also SCA Tissue North America, 338 NLRB 1130,
1136–1138 (2003).
D. The 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 render-
ing aid, assistance and support to and dominating these com-
mittees. 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” em-
ployers; and (3) these dealings concern conditions of employ-
ment 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 represent-
ing the employees. Id. at 996. Accord: E. I. du Pont & Co., 311
NLRB 893, 894 (1993).
There is no dispute that, on June 9, the Respondent distrib-
uted a notice to its employees announcing the creation of 10
“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 depart-
ment manager, supervisor, and one hourly employee from each
shift (3 or 4 employees in total depending on whether the de-
partment operated on three or four shifts). The announcement
invited employees to nominate themselves or a coworker to be
on the committee and stated that team members would rotate

the 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 880
off the committee at predetermined times to give other employ-
ees 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 bimonthly departmental meetings.
The record indicates that, after the period for submitting
nominations expired, several employees were notified by hu-
man resources that they had been selected to participate in 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 an-
nouncement 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 nonmanagement employees. One or
two manager/supervisors would also serve on each committee,
but would have no greater authority than the employee mem-
bers. 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 meet-
ings, 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 top-
ics 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 limit-
ing 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 top-
ics 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 determina-
tion.
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 au-
thority to direct the implementation of whatever course of ac-
tion was decided upon, “subject only to budgetary or financial
restraints.” The guidelines continued:

In this regard, it is the intent to give actual management au-
thority 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 represent the interests of, other Associates.57

The guidelines envisioned that topics might be raised in the
committees that, “because of unusual sensitivity, plantwide
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 depart-
ments as to the decisions made and implemented by the com-
mittee.
Grant and Phillips testified for the General Counsel regard-
ing 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 Respon-
dent provides space for the meetings, that the meetings are held
during worktime 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 func-
tions. After each meeting, the Respondent prepares and distrib-
utes 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

57 The Respondent refers to its employees as associates.
STABILUS, INC. 881
the same time, there is no dispute that issues involving safety,
pay, certifications, raises, coverage during vacations, overtime,
profitsharing, environmental conditions in the shop, and pot-
holes 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 whom-
ever 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 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 Respon-
dent 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. du Pont & Co., supra, the Board
provided a more precise definition of “dealing”, citing exten-
sively 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 at 894 (footnotes and citations omitted). The Board
further explained the concept of dealing by noting that a “brain-
storming” 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 infor-
mation and management may do what it wishes with the ideas

58 360 U.S. 203 (1959).
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 1074
(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 commit-
tees function as part of management with the power to imple-
ment 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 192
(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 dis-
cussed, 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 commit-
tee. Only in rare instances have discrete labor issues been ad-
dressed and resolved by one of these committees. The Board
held in E. I. du Pont & Co., supra, that such evidence is insuffi-
cient 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 em-
ployees’ wages, hours, and other terms and conditions of em-
ployment, I conclude that they are not labor organizations
within the meaning of Section 2(5) of the Act. It is therefore not
necessary to address the allegations regarding unlawful domi-
nation and assistance. Accordingly, I shall recommend dis-
missal of paragraphs 14 and 16 of the complaint.
III. THE UNION’S ELECTION OBJECTIONS
The Union’s election objections, set forth in Appendix A, es-
sentially parallel the unfair labor practices alleged in the com-
plaint. 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 encom-
passed by Objections 1 and 3; that Lea, at a meeting with the
maintenance department employees on April 1, told the em-
ployees that they could not talk about the Union while working,
encompassed by Objection 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
12. Although not mentioned in the objection, the raise given to
the Respondent’s maintenance employees in April is suffi-
ciently similar to the allegation in Objection 12 to be consid-
ered as part of this objection. I have also found that the Re-
spondent engaged in other unfair labor practices during the
critical period between the filing of the petition and the elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 882
tion, which are not specifically covered by any of the objec-
tions, but would warrant a new election. Thus, I found that the
Respondent engaged in a pattern of restricting the movement of
prounion employees and more closely monitoring and supervis-
ing them during the months of April and May. The Respondent
also prohibited several employees from wearing union T-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 rea-
sonable effect of destroying the “laboratory conditions” neces-
sary 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 objec-
tionable 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. Air-
stream, 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 allega-
tion, 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 Objec-
tions 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:
(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 state-
ments 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 prounion 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 T-shirts, dur-
ing the month of May 2004.
(g) Disparately enforcing work rules against prounion em-
ployees on April 1.
(h) More closely monitoring and supervising prounion em-
ployees in April and May 2004.
(i) Restricting the movement of prounion 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 employ-
ees 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 un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. To remedy the Respondent’s viola-
tions of Section 8(a)(1) of the Act, I shall recommend that the
Respondent post and abide by the attached notice to employees.
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 quar-
terly 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).
[Recommended Order omitted from publication.]