Taylor Motors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jul 14, 2015

10-CA-141565 (N.L.R.B. Jul. 14, 2015)

JD(ATL)–12–15
Fort Campbell, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
TAYLOR MOTORS, INC.
and CASES 10-CA-141565
10-CA-141578
AMERICAN FEDERATION OF 10-CA-145467
GOVERNMENT EMPLOYEES 10-RC-137728
(AFGE), AFL-CIO, LOCAL 2022
Katherine Miller, Esq., for the General Counsel.
Christopher Caiaccio, Esq. and Michael G. Johnson, Esq.
(Christopher Caiaccio, Esq.), of Atlanta, Georgia, and
Nashville, Tennessee, for the Respondent.
Ms. Judy Hansford, of Fort Campbell, Kentucky,
for the Charging Party.
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. Respondent unlawfully discharged
an employee because of a mistaken belief that he had engaged in misconduct while trying to
persuade other employees to vote for the Union in a representation election that day. This
unfair labor practice, and two others, require that the election be set aside.
Procedural History
On September 29, 2014, the American Federation of Government Employees (AFGE),
AFL–CIO, Local 2022, AFL–CIO (here called the Union or the Charging Party) filed a petition
in Case 10–RC–137729, seeking to represent certain employees of Taylor Motors, Inc. (the
Respondent).
Thereafter, the Union and the Respondent entered into a Stipulated Election Agreement
which described the appropriate unit as follows: "All full time and regular part-time bus
drivers, aides, mechanics and clerical employees, employed by the Employer at its Fort
Campbell, Kentucky facility but excluding all other employees, professional employees,
JD(ATL)-12-15
2
confidential employees, guards and supervisors as defined by the Act."
The Board conducted an election on November 6, 2014. The tally of ballots showed 33
votes cast for the Union and 32 votes against. On November 12, 2014, the Respondent filed
objections. On December 8, 2014, the Union and Respondent entered into a stipulation to set 5
the election aside and to conduct a second election on January 15, 2015.
Between the November 6, 2014 election and the December 8, 2014 stipulation to set it
aside, the Union filed the first of the unfair labor practice charges which are consolidated in the
present complaint. Specifically, on November 24, 2014, it filed charges docketed as Cases 10–10
CA–141455 and 10–CA–141578. The Union amended each of these charges on January 30,
2015, and further amended the charge in Case 10–CA–141565 on February 12, 2015. The
Union also filed an unfair labor practice charge, docketed as Case 10–CA–145467, on January
30, 2015.
15
The Board conducted the second election in Case 10–RC–137729 on January 15, 2015.
The tally of ballots showed that 28 employees had cast ballots in favor of the Union and 33 had
voted against. The Union filed objections.
On February 20, 2015, the Regional Director for Region 10 issued a report on 20
objections and order directing hearing. On February 23, 2015, the Regional Director issued an
order consolidating cases, consolidated complaint, and notice of hearing. (For brevity, this
pleading, as amended at the hearing,1The General Counsel orally amended Complaint
paragraph 10 to allege that Respondent discharged employee Anthony Williams on November
13, 2014, rather than November 30, 2014, will be referred to as the Complaint.) The 25
Respondent filed a timely answer.
On April 19, 2015, the Union filed a request to withdraw two of its objections, and the
Regional Director approved this request on April 21, 2015. As a result, the only objections
remaining in issue in this proceeding concern matters also alleged to be unfair labor practices.30
On April 22, 2015, a hearing opened before me in Nashville, Tennessee. The parties
presented evidence on that date and on April 23 and 24, 2015. After all sides rested, I
adjourned the hearing until June 5, 2015, so that counsel would have time to receive and review
the hearing transcript and prepare for oral argument. On June 5, 2015, the hearing resumed by 35
telephone conference call, counsel presented oral argument and the hearing closed.
Admitted Allegations
Based upon admissions in the Respondent's Answer, I find that the General Counsel has 40
proven the allegations raised in complaint paragraphs 1(a), 1(b), 1(c), 2, 3, 4, 6, 9, and 10.
More specifically, I find that the unfair labor practice charges were filed, amended, and served

1 During the hearing, the General Counsel orally amended complaint par. 1(a) to reflect that the Charging
Party filed aa second amended charge in Case 10–CA–141565 on February 12, 2015, and served it on the
Respondent the next day. The record supports this allegation and I so find.
JD(ATL)-12-15
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as alleged.2
Further, I find that at all material times, the Respondent has been a corporation with an
office and place of business in Fort Campbell, Kentucky, and that it furnishes school bus
services. Additionally, I find that it is an employer engaged in commerce within the meaning 5
of Section 2(2), (6), and (7) of the Act and that it satisfies both the statutory and discretionary
standards for the Board's assertion of jurisdiction.
Additionally, I find that its owner, Peggy Taylor, its general manager, Robert Gregory
DeLancey, and its transportation director, Charlotte Moore, are Respondent's supervisors 10
within the meaning of Section 2(11) of the Act and its agents within the meaning of Section
2(13) of the Act.
Respondent has admitted that it suspended employee Anthony Williams on November
7, 2014, as alleged in complaint paragraph 9. I so find.15
Respondent amended its answer at hearing to admit that the Union is a labor
organization within the meaning of Section 2(5) of the Act. I so find.
Complaint paragraph 10, originally alleged that Respondent discharged employee 20
Anthony Williams on November 30, 2014. Respondent's answer admitted that allegation.
However, at hearing, the General Counsel moved to amend the complaint to allege that
Respondent discharged Williams on November 13, 2014. I granted that unopposed motion.
Williams' termination notice and all other evidence in the record indicates that the discharge 25
took place on November 13, 2014, and I so find.
Unfair Labor Practice Allegations
The Respondent's answer denies that it committed any unfair labor practices. Likewise, 30
it denies that the alleged unfair labor practices affected commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The individual allegations will be discussed in the order
they appear in the complaint.
Complaint Paragraph 7(a)35
Complaint paragraph 7(a) alleges that on about August 22, 2014, on its parking lot, the
Respondent, by Charlotte Moore, (i) interrogated an employee about the employee's union
activities, and (ii) gave its employees the impression that their union activities were under
surveillance by Respondent by telling the employee that Respondent knew the employee had 40
union authorization cards and had distributed the cards to other employees.

2 At hearing, the General Counsel moved to amend complaint par. 1(a) to reflect that the unfair labor
practice charge was amended a second time, on February 12, 2015, and that this amended charge was
served on Respondent on February 13, 2015. The Respondent did not oppose this amendment, which I
granted.
JD(ATL)-12-15
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The Respondent denies these allegations. It also denies the conclusion alleged in
complaint paragraph 12, that these actions violated Section 8(a)(1) of the Act.
Transportation Director Charlotte Moore is in charge of Respondent's facility at Fort
Campbell, Kentucky. There, the Respondent keeps the school buses driven by some of the 5
employees in the unit described above, and maintained by other employees in that unit.
On August 22, 2014, Moore received a report from a driver, Sharon Moore, that two
other drivers, Larry Cruthis and Anthony Williams, were in the parking lot passing out
something. Although Director Moore testified that Driver Moore said that Cruthis and 10
Williams were passing out "materials," I find that Driver Moore said they were passing out
union cards. My reasons for this conclusion are discussed below.
After receiving this information, Transportation Director Moore walked out on the
parking lot, saw Williams sitting in his car, and approached him. Moore testified as follows 15
about her conversation with Williams:
Q. What did you do next?
A. I asked Anthony if he was passing out materials, and I asked him could I
see it.20
Q. How did Anthony respond?
A. He said I was not, Ms. Charlotte.
Williams' account of this conversation differs in one quite significant respect. He
recalled Moore asking him not about "materials" but union cards:25
Q. What did Charlotte say to you?
A. She came to me as I was on my phone. She came outside. She had a cell
phone in her hand. And I was kind of hanging off the door a little bit
talking to somebody, and I said, well, I got to go. I said, my—somebody's 30
—I said, Charlotte's coming out. She came to me and said she's, I heard
that—she said, I got a call that you and Larry was handing out union
cards. And she said—she demanded me to hand over those cards
immediately.
Q. Did you give her any response?35
A. Yes. I told her I didn't have them. I didn't have no cards.
Q. Did she—when she asked you about this, did she use the word "union"?
A. Yes, she did.
The difference between the testimony of Williams and Moore presents a conflict 40
requiring resolution: Did Moore say "materials," as she claimed, or did she say "union," as
Williams testified?
To examine this question, I begin by considering what information Moore had received
before she went out on the parking lot and spoke with Williams. If Moore only had heard that 45
Williams was handing out "materials," it would seem less likely that she mentioned union cards
JD(ATL)-12-15
5
when she talked with him. However, if she had received a report that Williams was distributing
union cards, it would be somewhat more likely that she used the word "union" when asking him
about it.
Sharon Moore, the driver who made the report to Transportation Director Charlotte 5
Moore, did not testify, so the latter's testimony provides the only direct information about this
conversation. However, this rather confusing testimony leaves open whether Driver Sharon
Moore came to Charlotte Moore's office on telephoned her on the afternoon of the latter's
conversation with Williams.
10
A portion of this testimony suggests that Sharon Moore actually gave Charlotte Moore
the union card that afternoon, and shortly before Charlotte Moore went to speak with Williams.
However, as the following part of Charlotte Moore's testimony illustrates, it is not possible to
be certain abut the sequence of events:
15
Q. Ms. Charlotte, when was the first time that you became aware of any
union activity at Taylor Motors in Fort Campbell?
A. The first time when I was actually made aware was the morning that
Sharon Moore gave me a card.
Q. I believe that you had testified on Wednesday that you had gone out into a 20
parking lot?
A. Yes.
Q. Do you recall about when that would occur?
A. It would be around 4 o'clock in the afternoon, maybe, about that time. I
went to the parking lot—25
Q. I'm going to stop you really quick. Do you remember what day that was
and what year?
A. It was in 2014, and it was in August.
Q. And so I'm sorry to interrupt you. You were saying it was around 4
o'clock, and if you would, what made you—why did you decide to go in 30
the parking lot?
A. Sharon Moore told me that Larry Cruthis and Anthony Williams was
passing out materials on the parking lot.
Q. Did she tell you what kind of materials that they were passing out?
A. No.35
Q. So it's about 4 o'clock. And she's come into your office. She said what she
said. What did you do next?
A. I walked outside on the parking lot to see what was going on.
Moore's chronology is confusing. She first testified that Driver Sharon Moore gave her 40
the union card in the morning, but her testimony a few questions later indicates that Sharon
Moore visited her office about 4 o'clock in the afternoon. Moreover, Transportation Director
Moore's later testimony, on cross-examination, suggests that Driver Sharon Moore merely
telephoned Moore that afternoon and did not come to Moore's office, or show her the card,
until at least the next day:45
JD(ATL)-12-15
6
Q. You testified that one of the drivers, Sharon Moore, actually showed you
her union authorization card, correct?
A. That was the day after she had called me.
Q. But she showed you a card, correct?
A. She gave me a card.5
Moore's testimony on cross-examination thus suggests she had been alerted by a
telephone call from Driver Sharon Moore, and did not see the union card until the next day.
This sequence of events would be consistent with Williams' testimony, quoted above, that
Moore was holding a cellphone when she spoke with him in the parking lot, and that Moore 10
told him she had received a call that he and Cruthis were handing out union cards.
However, even if driver Sharon Moore had merely telephoned Charlotte Moore on
August 22, 2014, and did not visit her in person until the next morning, it still seems likely that
the driver described exactly what she saw Cruthis and Williams handing out. It is difficult to 15
believe that Sharon Moore would accept a union card from Cruthis or Williams and then report
only that she saw them handing out unspecified "materials."
Moreover, at 5:02 p.m. on August 22, 2014, less than an hour after her conversation
with Williams in the parking lot, Transportation Director Moore sent an email to Respondent's 20
owner, Peggy Taylor. The email stated:
It was bought to my attention this evening that Larry Cruthis & Anthony
Williams have been passing out cards and asking people to sign a petition for a
union. I talked to them both and Anthony denied it. Larry would not deny it but 25
said he would talk to me later.
Just wanted to let you know.
Based on this email, I reject the theme implicit in Moore's testimony, that she only had
heard that Williams and Cruthis were passing out some kind of "materials" and was trying to 30
find out what the materials were. To the contrary, I find that before Charlotte Moore went out
on the parking lot to speak with Williams, Driver Sharon Moore already had told her that
Cruthis and Williams were passing out union cards.
Considering the confusing nature of Charlotte Moore's testimony, I do not consider it to 35
be as reliable as that of Williams. To the extent that the testimony conflicts, I credit Williams.
Based on that credited testimony. I find that Moore did tell Williams that she had received a
call that he and Cruthis were handing out union cards.
Additionally, Williams testified that Moore demanded that he give the cards to her. 40
Although Moore's August 22, 2014 email does not mention her demanding the cards, Williams'
testimony to that effect is consistent with a "Complainant Form" he completed for the Union 3
days after the conversation. On that form, Williams wrote:
I Anthony Williams on Friday 08–22–2014 Mrs. Charlotte came by my car and 45
ask me to hand over the union cards. I ask her what is she talking about Mrs.
JD(ATL)-12-15
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Charlotte said she got a call stating that I was passing out union cards in the
parking lot. Anthony Williams and Larry Cruthis. She demanded me to hand
over those union cards but I told her I didn't have them.
This nearly-contemporaneous document is consistent with Williams' testimony. Based 5
on that testimony, I conclude that Moore did demand that Williams turn over the union cards.
Moore testified that after she spoke with Williams, she walked over to Cruthis, who was
about 200 feet from Williams:
Q. So you approached his vehicle. What happened next?10
A. I approached his vehicle, and I asked him the same question as I did Mr.
Williams.
Q. What was that question?
A. I asked him was he passing out materials on the parking lot and could I
see them.15
Q. How did he respond to you?
A. He told me, no, he wasn't.
Q. Was that the end of your conversation with him?
A. That was the end of my conversation. He said a few other things, and he
said, Ms. Charlotte, and I don't know the exact conversation, but he 20
mentioned the word "union" and he said it's a good thing.
Q. Did you ask him any questions about what he meant about his comment
about the Union being a good thing?
A. I don't recall asking him anything about that. He said I'll tell you later,
and that was the end of the conversation.25
It is somewhat difficult to accept both Moore's claim that she did not use the word
"union" but only referred to "materials" and her further claim that Cruthis then brought up the
Union on his own. It seems unlikely that Cruthis would volunteer such information at this
early point in the organizing campaign. The Union had not yet filed a representation petition 30
with the Board and would not do so until September 29, 2014, more than a month later.3
Moore testified that she did not recall asking Cruthis about the union, but even if her
memory faded between August 22, 2014, and the hearing 8 months later, the email she sent to
Taylor that afternoon indicates she did discuss the subject with Cruthis. Indeed, in that email 35
Moore raised the subject of soliciting employees to sign a petition for the Union and then stated
that "Larry would not deny it but said he would talk to me later."
However, there is a difficulty. Cruthis himself testified that this discussion about the
Union never took place:40
Q. And at some point while you were out in the parking lot, Charlotte Moore
came out and talked to you, didn't she?

3 Moreover, as discussed below in connection with complaint par. 7(c), Cruthis testified that at one point
Moore telephoned him and asked about the cards he was passing out but that he feigned ignorance: "I
didn't want to tell her I was passing out union cards. I knew she'd be upset."
JD(ATL)-12-15
8
A. She never talked to me.
Cruthis denied even being present in the parking lot when Moore spoke with Williams.
He testified that he heard about it later, but had already left the lot when the conversation took
place. This testimony directly conflicts with that of Moore that she left Williams and walked 5
over to Cruthis, who was about 200 feet away. However, Cruthis' testimony on this point did
not waver during cross-examination:
Q. Do you deny that you volunteered to Charlotte that you were handing out
union cards?10
A. Do I deny—
Q. Do you deny that you told that to Charlotte?
A. That I told her I wasn't passing them out?
Q. That you were handing out union cards.
A. She never asked me if I was handing them out.15
Q. Do you deny that you told Charlotte, the Union's a good thing. We need
to talk about it later.
A. Yeah, I didn't talk to Charlotte anything about the Union.
Cruthis spearheaded the Union's organizing drive. Accordingly, it was not in his 20
interest to deny that this conversation took place. That fact weighs in favor of crediting his
testimony. Of course, it was not in Moore's interest, as one of Respondent's managers, to
testify that she did ask Cruthis about handing out "materials."
As noted above, portions of Moore's testimony were confusing, which raised doubts 25
about its reliability. Therefore, I did not credit Moore's testimony regarding her conversation
with Williams to the extent that it conflicted with Williams' testimony.
It is well established that a decision not to credit part of a witness's testimony does not
preclude the judge from crediting other parts of it. However, were I to credit Moore's 30
testimony regarding her conversation with Cruthis, it would lead to the odd conclusion that she
made a possibly coercive statement to an employee who denied hearing it.
Because Cruthis denied not only the statement but even that the conversation took
place, I hesitate to conclude that Moore's testimony about speaking with Cruthis is any more 35
reliable than her testimony about her conversation with Williams. In sum, I conclude that the
General Counsel has not established, by a preponderance of the evidence, that Moore asked
Cruthis if he was passing out "materials" or union cards, or that she asked to see them.
However, credited evidence does establish, and I have found, that Moore stated to 40
Williams "I got a call that you and Larry was handing out union cards." Also, crediting
Williams, I have found that Moore demanded that Williams hand over the union cards to her.
Therefore, I will analyze with these statements violated Section 8(a)(1) of the Act.
In Smith and Johnson Construction Co., 324 NLRB 970 (1997), the Board affirmed the 45
administrative law judge's analysis of certain statements alleged to violate Section 8(a)(1) of
JD(ATL)-12-15
9
the Act. The judge had described the framework for that analysis in these terms:
In deciding whether interrogation is unlawful, I am governed by the Board's
decision in Rossmore House, 269 NLRB 1176 (1984). In that case, the Board
held that the lawfulness of questioning by employer agents about union 5
sympathies and activities turned on the question of whether "under all
circumstances, the interrogation reasonably tends to restrain or interfere with the
employees in the exercise of rights guaranteed by the Act." The Board in
Rossmore House noted the [test set forth in Bourne Co. v. NLRB, 332 F.2d 47
(2d Cir. 1964)] was helpful in making such an analysis. The Bourne test factors 10
are as follows:
1. The background, i.e. is there a history of employer hostility and
discrimination?
2. The nature of the information sought, e.g. did the interrogator appear to 15
be seeking information on which to base taking action against individual
employees?
3. The identity of the questioner, i.e. how high was he in the Company
hierarchy?
4. Place and method of interrogation, e.g. was employee called from work 20
to the boss's office? Was there an atmosphere of ``unnatural formality''?
5. Truthfulness of the reply.
With respect to the first factor, the record does not establish that the Respondent had
demonstrated any hostility to the Union before this conversation on August 22, 2014. The first 25
factor therefore weighs against finding a violation.
As to the second factor, Moore specifically sought information about the union
organizing effort but the record does not establish that Moore appeared to be seeking the
information so that she could take disciplinary action against employees. Nonetheless, because 30
the information sought related directly to employees' exercise of rights protected by the Act, I
conclude that the second factor weighs somewhat in favor of finding a violation.
Moore was Respondent's highest-ranking official at this particular facility and in charge
of it. The third factor therefore weighs in favor of finding a violation.35
With respect to the fourth factor, the interrogation took place in the parking lot, not in
the manager's office. This factor weighs slightly against finding a violation.
Williams denied having any cards. I infer that his denial reflects some concern, if not 40
fear, that Respondent would punish him if it found out about his union activity.
In addition to these factors, I also note that Moore did more than simply ask Williams if
he were handing out union cards. She demanded that he turn them over. This demand added
considerably to the coercive import of the interrogation. Therefore, I conclude that the 45
interrogation was unlawful.
JD(ATL)-12-15
10
However, I do not conclude that Moore's statement to Williams, that she had received a
report that he was passing out union cards, also created an unlawful impression of surveillance.
The statement indicates that another employee had volunteered information to management but
reasonably would not convey that the Respondent had placed the employees under surveillance. 5
See, e.g., North Hills Office Services, Inc, 346 NLRB No. 96 (2006)
In sum, I recommend that the Board find that Respondent violated Section 8(a)(1) by
unlawfully interrogating an employee about that employee's union activity.
10
Paragraph 7(b)
Complaint Paragraph 7(b) alleges that on about August 22, 2014, in the hall way of its
facility, the Respondent, by Charlotte Moore, interrogated an employee about the employee's
union activities. The Respondent denies this allegation and further denies that it thereby 15
violated Section 8(a)(1) of the Act, as alleged in complaint paragraph 12.
Employee Sandra Fenwick testified concerning a brief conversation she had with
Transportation Director Moore in one of the hallways at Respondent's facility. Although
Fenwick said that the conversation took place before the election, presumably meaning the 20
November 6, 2014 election, she could not be more specific as to the date. She did not
remember whether it took place before or after her birthday on September 9, 2014. Fenwick
further testified as follows:
Q. And you were in this hallway when Charlotte asked you a question?25
A. Yes.
Q. What did Charlotte ask you?
A. She asked me had I heard about the labor or did I know anything about
the labor.
Q. Was there anybody else around you when she asked you this?30
A. No, there was people in the other rooms.
Q. But nobody right near you in the hallway?
A. No.
Q. What did you say back to her?
A. I told her no.35
Q. At that point, had you heard anything about the labor?
A. No.
Moore specifically denied this conversation and the statements Fenwick attributed to
her.40
The vagueness of Fenwick's testimony causes me to doubt its reliability. Although the
General Counsel argues that another witness, Linda Collins, "further corroborated Sandra
Fenwick's testimony by explaining that Fenwick had told Collins about this question by
Director Moore," this type of "corroboration" really amounts to hearsay, because Collins 45
herself did not hear the statement which Fenwick attributed to Moore.
JD(ATL)-12-15
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Moreover, the statement which Fenwick attributed to Moore is so nebulous that it
reasonably would not be understood to be an inquiry about Fenwick's union activities or
sympathies or those of any other employee.
5
Accordingly, I recommend that the Board dismiss the allegations raised by complaint
paragraph 7(b).
Complaint Paragraph 7(c)
10
Complaint paragraph 7(c) alleges that Respondent, by Charlotte Moore, during a
telephone call on about August 25, 2014 (i) interrogated an employee about the employee's
union activities and (ii) gave its employees the impression that their union activities were under
surveillance by Respondent by asking the employees if the employee was passing out union
authorization cards. The Respondent denies these allegations. It also denies the conclusion 15
alleged in complaint paragraph 12, that these actions violated Section 8(a)(1) of the Act.
It appears that this complaint paragraph refers to a conversation which the General
Counsel sought to prove through the testimony of Cruthis. However, the record does not
provide a firm basis for concluding that the conversation took place around August 25, 2014.20
As discussed above, Cruthis denied that Moore had approached him on the parking lot
on August 22, 2014. At one point, however, he did testify that Moore called him at home.
This testimony presents a problem both because it does not specify a date and because it 25
appears more likely to relate to the allegation raised in complaint paragraph 7(e), concerning a
telephone call from Moore on October 21, 2014. Obviously, this testimony cannot refer to two
telephone calls 2 months apart.
Although I will return to this testimony in discussing complaint paragraph 7(e), I quote 30
it here because it appears to be the only evidence which might support the allegations in
complaint paragraph 7(c). Cruthis testified as follows:
Q. Thank you. Did Ms. Charlotte ever ask you about union cards?
A. She called me at home.35
Q. What did she talk to you about?
A. She wanted to know what kind of cards—union cards I was passing out.
Q. Did you—how did you respond to her?
A. I just told her, I just said, what cards are you talking about?
Q. Because you didn't—why did you say that?40
A. Well, I didn't want to tell her I was passing out union cards. I knew she'd
be upset.
Moore squarely denied making such a call. Therefore, I must determine which
testimony to credit. Cruthis' continuing testimony was somewhat vague and he could not recall 45
certain facts:
JD(ATL)-12-15
12
Q. After Charlotte asked you about the cards, did you tell anybody else
about that incident?
A. I probably told several other people.
Q. Do you remember who you may have told?5
A. I don't remember exactly who, because so many people were coming up
to me.
Q. Was that the only time that Charlotte asked you about union cards?
A. I thought she called me twice, but she could have asked me in person 2 or
3 days later. I don't really recall, because at that point, I didn't think it was 10
really important.
Q. Another—this other time that Charlotte asked you about cards, do you
remember what she said to you?
A. She wanted to know if I'd give her the cards. And I said, what cards are
you talking about?15
Q. Did she ever ask you anything else about the union cards?
A. I don't recall.
Q. Did you ever make any kind of record about the conversation with
Charlotte regarding these union cards?
A. Written records, you mean?20
Q. Uh-huh.
A. Gosh, I really don't know because I've written so many things down, but I
don't recall writing anything that she had said.
Cruthis started the union organizing effort and was the main force behind it. 25
Additionally, he testified at one point that he did not want to tell Moore that he was distributing
union cards because he feared she would be upset. In these circumstances, his inability to
remember whether Moore ever asked him anything else about the union cards is difficult to
understand. Even more difficult to understand is the explanation he gave at one point for being
unable to recall: "I didn't think it was really important."30
Moreover, on cross-examination, Cruthis admitted that he had stated, in his pretrial
affidavit, that Moore had told him he would be fired if she knew he was supporting the Union.
However, the complaint does not allege that Moore make such a threat and Cruthis did not
testify that she did. 35
This disparity between his pretrial affidavit and his testimony at the hearing reverses the
more typical pattern of a witness testifying at hearing to statements not mentioned in his
pretrial affidavit. However, it raises just as much doubt about the reliability of his testimony.
40
For these reasons, I do not have confidence in Cruthis' testimony and do not credit it.
Therefore, I find that the government has not proven the allegations raised in complaint
paragraph 7(c) and recommend that the Board find that Respondent did not violate the Act as
alleged in that paragraph.
45
JD(ATL)-12-15
13
Complaint Paragraph 7(d)
Complaint paragraph 7(d) alleges that on about October 21, 2014, in its parking lot, the
Respondent, by Charlotte Moore, interrogated an employee about the employee's union 5
sympathies and the union sympathies of other employees. The Respondent denies this
allegation as well as the allegation, in complaint paragraph 12, that it thereby violated Section
8(a)(1) of the Act.
Employee Anthony Williams testified that he was standing in the parking lot, talking 10
with two other employees, when Charlotte Moore called to him. According to Williams, he
walked over to Moore, who was in a white truck. Williams further testified:
Q. And what did she say next?
A. She said—when I came to her, she said, I heard that you was talking 15
about me. I heard you was talking about my husband. I heard you was
talking about my family.
Q. Did you say anything in response?
A. Yes, I did. I said, no. I said, no, Ms. Charlotte, I never said anything
about your family. I asked her where she got her information from.20
Q. What did she say?
A. She didn't say nothing. Then she went on to another subject.
Q. What did she talk about next?
A. I don't understand why you all want a union.
Q. Did she ask you questions about the Union?25
A. Yes, she did.
Q. What did she ask?
A. She asked me—she said, I'm not understanding, why do you all want a
union?
Q. Did you give her any response?30
A. And yes, I did.
Q. What did you say?
A. And I asked her, I said, because this—it'll be a better workplace where
there wouldn't be a whole lot of harassment.
35
Moore admitted having a conversation with Williams on this occasion. Her testimony
indicates that she did so because of a report that Williams had made comments about members
of her family:
Q. I'm going to ask you some more questions about that conversation. Why 40
did you speak with Anthony on that day?
A. I spoke to him not as a Taylor Motors employee, but as a wife and a
mother. I had just received information that he had made some
derogatory statements about my family.
Q. When you say you received that information, can you tell me who 45
provided you with that information?
JD(ATL)-12-15
14
A. Deidre Curtis (ph.) was telling me that Anthony said that my husband
was a pervert and that my son liked young girls.
Moore specifically denied ever bringing up the Union in this conversation. She also
denied that Williams brought up the Union.4 Therefore, I must decide which testimony more 5
reliably reflects what happened.
For reasons discussed above in connection with complaint paragraph 7(a), I credit
Williams' testimony. Therefore, I find that Moore did ask him why the employees wanted a
union.10
To analyze the lawfulness of this statement, I return to the Rossmore House criteria
discussed above. With respect to the first factor, the Respondent previously engaged in one
instance of unlawful interrogation, which was alleged in complaint paragraph 7(a) and
described above. However, the record does not establish that the Respondent had embarked on 15
any orchestrated campaign to oppose the Union. Accordingly, I conclude that the first factor
weighs, but only weakly, towards finding that the question was violative.
Moore did not seek to learn the identities of union supporters or other specific
information about union activities. I conclude that the second Rossmore House factor does not 20
weigh in favor of finding a violation.
The third factor weighs towards a finding that the question was coercive because Moore
was in charge of the Respondent's facility.
25
However, the fourth factor, regarding place and method of interrogation, weighs against
finding a violation. Moore asked the question not in her office or in an atmosphere of unnatural
formality but rather in the parking lot.
Williams' reply to Moore's question, stating that the employees sought a better 30
workplace, one free of harassment, presumably was honest and sincere. I conclude that this
fifth factor weighs against finding the question violative.
Additionally, at this point, the Union already had filed the representation petition. If the
Respondent had embarked on some antiunion campaign not apparent from the present record, 35
Moore's question might have appeared to be in furtherance of such an effort, but in the
circumstances present here, employees reasonably could ascribe it to benign curiosity.
Considering the totality of the circumstances, I conclude that Moore's question did not
constitute unlawful interrogation. John W. Hancock, Jr., Inc., 337 NLRB No. 183 (2002). 40
Therefore, I recommend that the Board dismiss the allegations raised in complaint paragraph

4 Williams denied that Moore asked him about the specific statements attributed to him: "She never asked
me about her son. She said I was talking about her family. She didn't say anything about no pervert."
Considering that Moore might have been reluctant to repeat the specific statements which Curtis had
attributed to Williams, it seems likely that Moore simply told Williams not to say things about her family
and that Williams denied having done so. Moore testified that conversation didn't last very long.
JD(ATL)-12-15
15
7(d).
Complaint Paragraph 7(e)
Complaint paragraph 7(e) alleges that on about October 22, 2014, in a telephone call, 5
the Respondent, by Charlotte Moore (i) interrogated an employee about the employees union
activities, and (ii) instructed the employee that employees may not pass out union authorization
cards to other employees. The Respondent denies these allegations. It also denies the
conclusion, alleged in complaint paragraph 12, that it thereby violated Section 8(a)(1) of the
Act.10
It appears that the General Counsel rests this allegation on the testimony of Larry
Cruthis discussed above in connection with complaint paragraph 7(c). Clarity will be better
served, I believe, by quoting this testimony again rather than only making a reference to it,
15
Employee Larry Cruthis testified that Transportation Director Moore telephoned him on
two occasions and asked about his passing out union cards. However, Cruthis' testimony is
rather vague:
Q. Thank you. Did Ms. Charlotte ever ask you about union cards?20
A. She called me at home.
Q. What did she talk to you about?
A. She wanted to know what kind of cards—union cards I was passing out.
Q. Did you—how did you respond to her?
A. I just told her, I just said, what cards are you talking about?25
Q. Because you didn't—why did you say that?
A. Well, I didn't want to tell her I was passing out union cards. I knew she'd
be upset.
Cruthis' testimony does not establish a date, even an approximate date, for this 30
conversation with Moore. Cruthis was not certain concerning how many times Moore asked
him about the union cards or even whether such conversations took place by telephone or face-
to-face. Thus, he further testified:
Q. Was that the only time that Charlotte asked you about union cards?35
A. I thought she called me twice, but she could have asked me in person 2 or
3 days later. I don't really recall, because at that point, I didn't think it was
really important.
Q. Another—this other time that Charlotte asked you about cards, do you
remember what she said to you?40
A. She wanted to know if I'd give her the cards. And I said, what cards are
you talking about?
Q. Did she ever ask you anything else about the union cards?
A. I don't recall.
Q. Did you ever make any kind of record about the conversation with 45
Charlotte regarding these union cards?
JD(ATL)-12-15
16
A. Written records, you mean?
Q. Uh-huh.
A. Gosh, I really don't know because I've written so many things down, but I
don't recall writing anything that she had said.5
In fact, at some point Cruthis did make a note, which I received into evidence over the
Respondent's objection. Although it bears the notation "2014" it bears no other indication of
when it was written. It states:
10
Around Oct the 22th [sic] Miss Charlet Moore called me at home and ask me
about union cards. I ask her what cards she was talking about. She called me a
second time and told me we could not pass out union cards. I again asked her
what cards she was talking about and she ended our conversation and hung up.
15
Considering Cruthis' testimony that he didn't recall putting anything in writing, and
considering Cruthis' uncertainty about other facts, I will not assume that he wrote this note soon
after receiving a telephone call from Moore, who explicitly denied making any such call.
Neither Cruthis' testimony nor his note persuades me that Moore asked him, either by telephone
or face-to-face, about union cards.20
Moreover, Cruthis did not testify that Moore told him not to distribute union cards.
Such a statement appears only in the note. However, the record clearly reveals Cruthis, who
made the initial contact with the Union, to be the driving force behind the Union's organizing
effort. Someone so motivated certainly would be likely to remember if someone in 25
management prohibited him free distributing union cards. Cruthis' failure to mention such a
statement when he testified therefore raises some doubts either about the accuracy of his note
or the reliability of his memory.
Further, it seems somewhat improbable that Moore would forbid passing out union 30
cards on October 22, which was more than 3 weeks after the Union filed its representation
petition. Typically, union supporters solicit employees to sign authorization cards before the
filing of a representation petition, so that the cards can be submitted with the petition as the
union's showing of interest. Issuing an instruction not to distribute cards well after the filing of
the petition would accomplish little.35
Other reasons to doubt Cruthis' testimony have been discussed above in connection with
complaint paragraph 7(c). For all these reasons, I do not credit it. Similarly, in the absence of
testimony regarding when Cruthis wrote the note, I conclude it is not entitled to any evidentiary
weight. Crediting Moore, I find that she never asked Cruthis about the union cards, either by 40
telephone or in person, and never told him not to distribute them.
Concluding that the government has not proven the allegations raised in complaint
paragraph 7(e), I recommend that the Board dismiss those allegations.
45
JD(ATL)-12-15
17
Complaint Paragraph 8
Complaint paragraph 8 alleges that since about August 2, 2014, Respondent has
required employees to sign the following confidentiality/nondisclosure agreement:5
Taylor Motors, Inc.
Confidentiality/Non Disclosure Agreement
When you begin work with Taylor Motors, Inc. you will have access to 10
information that the company considers confidential. This includes proprietary
information, trade secrets, marketing strategy and intellectual property to which
the company holds rights.
The purpose of this agreement is to inform you of your obligation to keep 15
company information confidential. We also wish to remind you about the types
of information that the company considers privileged. The following are types
of information that you are bound to keep confidential:
Compensation data, financial information, pending projects and proposals, any 20
information related to students and their transportation troop movement or any
transportation process with regard to troop transportation, personnel/payroll
records, and conversations between any persons associated with the company.
You may already have been advised of your obligations in this matter. This 25
letter is intended to remind you of your obligation to keep privileged
information confidential and to restate our seriousness in this matter.
Taylor Motors, Inc. and its management do not wish to cast doubt regarding
your integrity or honesty. All employees are required to read and understand 30
this obligation.
If you have any questions regarding this policy, please contact your local.
The Respondent denies both this allegation and complaint paragraph 12's conclusion 35
that it thereby violated Section 8(a)(1) of the Act.
The record includes copies of a Confidentiality/Nondisclosure Agreement signed by
Anthony Williams and dated 09/15/09. It also includes similar agreements signed by two other
employees. Each of these is dated 9/9/14.40
The wording of each of these documents is identical to the language in the other two.
The language also is the same as that set forth in the complaint and quoted above, except that in
the last paragraph of these agreements, the word "manager" follows the word "local."
45
The record establishes, and I find, that at some point the Respondent required
JD(ATL)-12-15
18
employees to sign agreements with the language alleged in complaint paragraph 8. However,
this complaint paragraph also includes an allegation about when the Respondent maintained
such a requirement.
Complaint paragraph 8 alleges that the Respondent has maintained the requirement 5
since about August 2, 2014. However, Williams signed the confidentiality/nondisclosure
agreement almost 5 years earlier, on September 15, 2009. Moreover, Respondent contends that
it did not begin but instead ended the requirement in August 2014 when it issued a new
employee handbook.
10
In resolving the "when" issue, the analysis below will depart from the usual sequence.
Ordinarily, an analysis would begin by considering the lawfulness of the language in question,
and then would address a respondent's defense. In this instance, to ascertain the relevant dates,
I begin with the Respondent's repudiation argument.
15
The Respondent's general manager, Robert Gregory DeLancey, testified that the
Respondent no longer requires employees to sign the confidentiality/nondisclosure agreement
which is in evidence. In August 2014, a new employee handbook went into effect which
explicitly rendered void previous personnel policies. General Manager Delancey testified that
the new handbook does not include a nondisclosure policy:20
Q. To your knowledge, does the new handbook have a new
confidentiality/non-disclosure agreement?
A. It does not. The new policy just basically wipes out all the past policies.
25
However, the text of the new employee handbook appears to contradict DeLancey, at
least partially. Although the new handbook does not include a section captioned
"confidentiality/non-disclosure agreement" it does include a section titled "Non-
Disclosure/Confidentiality." That section states as follows:
30
3.2 NON-DISCLOSURE/CONFIDENTIALITY
The protection of confidential business information and trade secrets is vital to
the interests and success of Taylor Motors, Inc. Such confidential information
includes, but is not limited to, the following examples:35
Financial information,
Marketing strategies,
40
Pending projects and proposals,
Proprietary processes.
All employees are required to sign a non-disclosure agreement as a condition of 45
employment, a copy of which is located in the addendum.
JD(ATL)-12-15
19
Employees who improperly use or disclose trade secrets or confidential business
Information are subject to disciplinary action, up to and including possible
termination and/or legal action, even if they do not actually benefit from the
disclosed information.5
Thus, the Respondent continues to maintain a nondisclosure policy, the breach of which
can result in discharge. Moreover, the new policy specifically states that all employees are
required to sign a nondisclosure agreement as a condition of employment. In sum, I find that
Respondent's issuance of a new handbook in August 2014 did not nullify or repudiate its 10
existing requirement that each employee must sign a confidentiality/nondisclosure agreement
as a condition of employment. Based on the agreement signed by Anthony Williams, I further
conclude that this requirement was in effect at least as early as September 2009.
The August 2014 employee handbook specifically mentions this requirement and no 15
evidence indicates that Respondent abandoned the requirement at any time after issuance of the
handbook. Accordingly, I find that at all times material to this case, the Respondent has
maintained and continued to maintain at the time of hearing a requirement that each employee
sign a confidentiality/nondisclosure agreement as a condition of employment.
20
Having concluded that Respondent has not abrogated its requirement that employees
sign a confidentiality/nondisclosure agreement, I turn to the question of whether Respondent
nullified or repudiated the specific agreement given to employees before the August 2014
handbook went into effect. In other words, did Respondent's issuance of the handbook in
August 2014 release employees from the terms of the then-existing agreement, the one signed 25
by Williams in 2009?
Initially, it may be noted that the handbook's confidentiality/nondisclosure provisions,
after stating that all employees are required to sign such an agreement as a condition of
employment, continues with the words "a copy of which is located in the addendum." 30
However, the copy of the handbook which is in evidence does not include such an addendum.
No evidence establishes that the Respondent has drafted a new or revised
confidentiality/nondisclosure agreement to supplant the language in the agreement signed by
Williams and described in complaint paragraph 8. However, evidence does establish that two 35
employees signed the old agreement in September 2014, the month after issuance of the new
handbook. One of these employees was Regina Pollack. General Manager DeLancey testified
that Pollack was given the form by mistake:
Q. What is the date of Ms. Regina's signature?40
A. It is September the 9th, 2014.
Q. Which is after the August 2014 handbook, correct?
A. It is. It was a mistake. It was in a packet of employment applications.
And the documents that new employees have to sign these days on a
military base are quite thick, and it was accidentally signed.45
JD(ATL)-12-15
20
Even if Pollack and the other employee signed the agreements in September 2014 by
mistake, there is no evidence that the Respondent took any action to correct the mistake. Thus,
DeLancey testified:
5
Q. Was any communication specifically sent to these two employees
informing them that this policy was a mistake?
A. Not to my knowledge.
This evidence and the conclusions to be drawn from it may be summarized as follows: 10
(1) The August 2014 employee handbook reiterated and continued the requirement that
employees sign confidentiality/nondisclosure agreements; (2) A month after issuance of the
handbook, two employees signed confidentiality/nondisclosure agreements, which is consistent
with a conclusion that the confidentiality/nondisclosure agreement requirement in the employee
manual was, in fact, being enforced; (3) Notwithstanding Respondent's claim of mistake, it took 15
no corrective action; (4) The employee handbook's requirement that employees sign
confidentiality/nondisclosure agreements, together with the absence of evidence of any new
agreement to replace the older one, suggests that the older agreement remains in effect.
The Respondent further argues that language in the August 2014 constitutes an effective 20
repudiation of the confidentiality/nondisclosure agreement. Analysis of the handbook will
follow a principle which also applies when considering the lawfulness of the language in the
confidentiality/nondisclosure agreement itself: The meaning and significance of the words
must be assessed from the viewpoint of the employees who read them.
25
In other words, I am not looking at the language as a court would examine a document in a
breach of contract lawsuit. Rather, I must determine what message the documents reasonably
would communicate to an employee.
Moreover, context is important. Examining words in isolation would not lead to a 30
reliable conclusion concerning how employees reasonably would understand them. Rather, the
totality of the circumstances must be considered.
Therefore, in determining whether employees reasonably would consider the new
handbook to abrogate or nullify the nondisclosure agreements they previously had signed, I 35
look first to language at the beginning of the handbook which announces its purpose and effect.
The cover page of the handbook shows its official title to be "Personnel Policy Manual &
Conditions of Employment." (Italics added.) Nonetheless, further down on the cover page
appears the following: "This Manual and the policies within are not to be considered a
condition of continued employment." (Italics added.)40
On the next page, the handbook includes four paragraphs printed in all capital letters
and underlined, presumably to stress their importance. Two of those provisions are relevant
here. The first paragraph states, in part, as follows:
45
THE MANUAL IS FOR INFORMATION ONLY, AND IS NOT A
JD(ATL)-12-15
21
CONTRACT OF EMPLOYMENT. ANY COMPANY PROCEDURE OR
POLICY, INCLUDING ANY POLICY, PROCEDURE, OR PROVISION IN
OR REFERRED TO IN THIS MANUAL, MAY BE MODIFIED, AMENDED,
INCREASED, DECREASED, OR DELETED BY THE COMPANY AT ANY
TIME, WITH OR WITHOUT NOTICE.5
The second paragraph states:
THIS MANUAL SUPERSEDES AND REPLACES ALL OTHER MANUALS
OR SIMILAR MATERIALS WHICH HAVE BEEN PUBLISHED OR 10
DISTRIBUTED. EFFECTIVE IMMEDIATELY, ALL (1) PRIOR MANUALS,
(2) PRIOR POLICY MANUALS, AND (3) PRIOR POLICIES OR PRACTICES
COVERING TOPICS NOW ADDRESSED IN THIS MANUAL, ARE
HEREBY REVOKE AND DECLARED NULL AND VOID.
15
Significantly, this language says nothing about agreements, and the language at issue
here appears in an agreement which the employee must sign. The handbook itself does not
refer to the confidentiality/nondisclosure provision as a "policy" but rather as an "agreement."
Moreover, the handbook's statement that employees must sign the agreement "as a condition of
employment" distinguishes the agreement from the handbook, which disclaims such status. 20
The handbook's cover page states that the manual itself "and the policies within are not to be
considered a condition of continued employment. . ."
An employee reading the handbook would take particular account of the statements
which the Respondent had capitalized and underlined. These statements include that the 25
Respondent could change any policy in the manual, or referred to in the manual, at any time,
and without notice. They also include the disclaimer that the manual was not a contract.
By comparison, an employee reasonably would understand the nondisclosure agreement
to be a contract. Even the word "agreement" suggests a contract, and the employee had to sign 30
it. Moreover, as noted above, the manual referred to the agreement as a "condition of
employment" whereas the manual itself claimed not to be a condition of employment.
Thus, an employee reasonably would understand the nondisclosure agreement to
outrank the manual in status and permanence. A statement that prior manuals and policies were 35
null and void reasonably would not be understood to mean that the nondisclosure agreements
had been voided. Additionally, in view of the manual's statement that signing a nondisclosure
agreement was a "condition of employment," an employee who did not receive a new
agreement to sign reasonably would assume that the old agreement remained in effect.
40
Accordingly, I conclude that issuance of the handbook in August 2014 did not
effectively repudiate the confidentiality/nondisclosure agreements which the employees
previously had signed. Moreover, the record does not establish that the Respondent otherwise
communicated to employees that the confidentiality/nondisclosure agreements were no longer
binding. Even the employees who signed these agreements after issuance of the handbook did 45
not receive such notification, In sum, there has been no effective repudiation of these
JD(ATL)-12-15
22
agreements. Lily Transportation Corp., 362 NLRB No. 54 2014).
Concluding that employees would not reasonably believe that the August 2014
handbook nullified or repudiated the confidentiality/nondisclosure agreements they had signed,
I will now consider whether certain provisions in those agreements are lawful under the Act. 5
The Board has stated that the appropriate inquiry is whether such language would reasonably
tend to chill employees in the exercise of their Section 7 rights. Where the language is likely to
have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an
unfair labor practice, even absent evidence of enforcement. Lafayette Park Hotel, 326 NLRB
824, 825 (1998); Double Eagle Hotel & Casino, 341 NLRB 112 (2004).10
In Battle's Transportation, Inc., 362 NLRB No. 17 (2015), the respondent required its
employees to sign a document stating that the employee "hereby covenants and agrees that he
or she will at no time. . .disclose or divulge to others" information which the document
described as confidential. The description included "human resources related information, drug 15
and alcohol screening results, personal/bereavement/family leave information,
insurance/worker/s compensation. . .investigations by outside agencies. . ."
The Board concluded that some of the prohibitions in this agreement unlawfully
infringed on the employees' right to engage in activity the Act protects. The Board stated:20
Contrary to the judge, we find the confidentiality agreement overbroad to the
extent that it bars employees from discussing "human resources related
information" and "investigations by outside agencies," because employees would
reasonably construe those phrases to encompass terms and conditions of 25
employment or to restrict employees from discussing protected activity such as
Board complaints or investigations.
362 NLRB No.17, slip op. at 2 (footnote omitted).
30
In the present case, the employees signed confidentiality/nondisclosure agreements
prohibiting them from disclosing, among other things, "compensation data" and
"personnel/payroll records, and conversations between any persons associated with the
company." Employees reasonably would understand "compensation data" to include their pay
rates and benefits. Moreover, employees reasonably would believe that they could not discuss 35
many, if not most matters related to terms and conditions of employment because of the
prohibition on disclosing personnel and payroll records and "conversations between any
persons associated with the company."
Accordingly, I find that these provisions unlawfully chill employees in the exercise of 40
their Section 7 rights.5 I recommend that the Board find that the Respondent thereby violated

5 The complaint does not allege that anything in the August 2014 edition of the employee handbook
violated the Act and I express no opinion on the lawfulness of the confidentiality/nondisclosure
provisions in that handbook. My consideration of this handbook is limited to the question of whether it
effectively repudiated the confidentiality/nondisclosure agreements, as the Respondent contends. For the
reasons stated above, I have concluded that it did not.
JD(ATL)-12-15
23
Section 8(a)(1) of the Act.
Suspension and Discharge of Anthony Williams
As noted above, the Respondent has admitted that it suspended employee Anthony 5
Williams on November 7, 2014, as alleged in complaint paragraph 9. Additionally,
Respondent has admitted that it discharged Williams, as alleged in complaint paragraph 10.
This discharge took place on November 13, 2014.
However, the Respondent denies that it took those actions because Williams formed, 10
joined and assisted the Union and engaged in concerted activities, and to discourage employees
from engaging in these activities, as alleged in complaint paragraph 11. It also denies the
conclusion, alleged in complaint paragraph 13, that the suspension and discharge of Williams
violated Section 8(a)(3) and (1) of the Act.
15
Williams' Actions at the First Election
Williams, a bus driver, began working for Respondent in July 2009 and thus had been
employed more than 5 years at the time of his discharge. However, the Respondent does not
based the discharge decision on anything other than Williams' actions at the first representation 20
election, November 6, 2014. According to the discharge notice, Respondent terminated
Williams' employment because of "harassing and intimidating behavior." It claimed that
Williams had threatened employees with physical violence and that employees "clearly felt
intimidated by your statements creating a hostile environment."
25
Therefore, I will focus on the events at this election, which began at 9 a.m. and lasted
until 10:30 a.m. Before the polls opened, employees began lining up to vote and, as they stood
in line, a union official offered them ballpoint pens bearing the Union's logo.
When the polls opened, the union official left the area after giving the bag of pens to 30
Williams. He continued to distribute the pens to the voters waiting in line, and also showed
them his cellphone, which displayed "Vote Yes" on its screen.
Employees who worked with Williams consistently described him as loud and none
suggested that he was an introvert.6 As discussed above, Williams had solicited employees to 35
sign authorization cards, so the election represented the fruition of his efforts. Whether or not
excitement added decibels to his voice, Williams was in high spirits—the union official who
gave him the pens described Williams as jolly, like Santa Claus—as he went up and down the
line.
40
The voters divided almost evenly between supporters and opponents of the Union, and
those against did not share the supporters' enthusiasm. From the record, I infer that some of the
opponents regarded the election as an imposition on their time and resented it.

6 One bus driver, Janice Schwenz, testified that on the day of the election, Williams was "being his normal
Andrew self." When asked what she meant by Williams' "normal self," she explained "Loud, boisterous.
Attention seeker, I guess is the word."
JD(ATL)-12-15
24
During the election and later that same day, some employees complained to
Transportation Director Moore, who asked them to submit their complaints in writing. Bus
driver Mary Dotson responded, in part, as follows:
5
I am writing this letter to express my total disgust regarding the election
procedures that took place today, November 6, 2014. We, all employees of
Taylor Motor Company, were told during the meeting held on Monday
November 3, 2014 that on election day that no one would be permitted to discuss
the election or try to persuade anyone to vote either for or against the union. The 10
election was scheduled to take place between 9:00 and 10:30 am. I arrived at the
shop at 8:25 am and knew that I had to wait to vote. While waiting, one of the
bus aides made a comment that they were going to leave. I overheard Anthony
[Williams] tell the aide that "I will block the driveway and you can't get out".
Why did this happen? Who was in control? I wanted to leave myself but after 15
hearing what Anthony said I was a little intimidated so I just got in line to vote,
While several of us were in line waiting to vote, Anthony started handing out ink
pens as a bribe in support of the union. He also was telling everyone In line to
"smile" that he was taking their pictures. When you looked at his phone screen 20
the caption "Vote YES" appeared across the screen. Also during this time two
ladies, that I do not know, were taking pictures of all the personnel in line. I did
not give anyone permission to take my picture and feel that everything that
happened today was totally illegal. How can one be granted to pass out
propaganda in support of the union and no one else could pass out items against 25
the union? How can my picture be taken without my permission? As far as I
know, they may use my picture as advertisement to support the union in other
locations. Why was I asked personal question about my past jobs and current job
while I was waiting to vote by someone trying to force me to support something
that I do not want.30
Dotson concluded her report to Moore with the sentence "I am beginning to believe that after
what happened today that this has become a hostile work environment." Both the word
"intimidated," which Dotson used in the portion quoted above, and the phrase "hostile work
environment" appear in the discharge notice which Respondent gave Williams. Therefore, 35
Dotson's testimony at hearing is particularly relevant.
In her report, Dotson said that she felt "a little intimidated" after hearing Williams tell a
bus aide that he, Williams, was going to block the driveway so that the aide could not leave. In
her testimony during the hearing, Dotson did not use the word "intimidated" and it is not clear 40
that she felt scared so much as peeved at Williams for not following what she understood to be
the rules.
Dotson testified, on direct examination by Respondent, that Transportation Director
Moore held a meeting at which she issued rules for the employees to follow while voting. 45
Dotson described the rules as "just get in line, do not talk about the voting at all, whether you're
JD(ATL)-12-15
25
for it or against the Union, and just stand in line, vote, and leave." Dotson further testified:
Q. It's okay. Would you please give me an example of what you mean by
violating the rules, what you saw?
A. It was, as I said before, the aide. He said he was going to leave. And 5
Anthony said that he was going to park his car there in the driveway.
* * *
Q. How did you react at the time to hearing that statement?
A. I was a little uneasy, a little bit, because Anthony was just so bold about
it. I mean he didn't look like he was kidding. He looked like he was 10
serious.
On cross-examination, Dotson repeated that Williams looked serious, but upon further
questioning, admitted that Williams said more than once that it was a good day and smiled
when he said it:15
Q. Thank you. You also made some comment about how you were uneasy
about hearing this, and then this may have just been something I didn't
hear, but did you say that Anthony looked like he was serious or not
serious?20
A. He looked like he was very serious.
Q. When you heard him talking about blocking the driveway and you can't
get out, was he saying anything about—did you hear him say anything
about how the vote really mattered?
A. No.25
Q. Did you hear him say anything about how the vote could really count?
A. No, I did not.
Q. You did hear Anthony talk about how it was a good day, though, correct?
A. Yes.
Q. He was saying that a lot, correct?30
A. Yes, he was.
Q. Was that one of the things he was saying as he was just passing out the
pens?
A. Yes. As he was going down, you know, we was all in line and he was
going down a row, and he was just saying it's just a great day.35
Q. And was he smiling when he was saying this?
A. Yes.
Dotson did not testify that Williams appeared menacing or threatening but only that he
looked "serious." Based on context, I believe it likely that, by "serious," Dotson meant 40
"intending to do what he said and not kidding." It is difficult to understand how Williams
reasonably could be considered intimidating simply by announcing that he was going to park
his car in the driveway and appearing to mean it.
Even if Dotson used the word "serious" to mean "stern and humorless," a dour visage 45
would not, without more, rise to the level of intimidating. Moreover, the record clearly
JD(ATL)-12-15
26
indicates that Williams' demeanor verged on ebullient. To be sure, it was a noisy ebullience
that a number of people considered obnoxious, but cheerful nonetheless.
According to Williams, he merely told people that if they left early, their votes would
not count. He denied that he tried to stop people from leaving. No evidence suggests that 5
Williams actually tried to block the drive and I find that he did not. In sum, I conclude that
Williams did nothing which reasonably would have made someone feel intimidated.7
Dotson's displeasure with Williams arose, I believe, from his apparent failure to follow
the rules which Moore had announced. Additionally, Dotson's annoyance at having to 10
participate in an election may well have colored her perception. For example, Dotson felt
annoyed that, while she was standing in line waiting to vote, someone asked her about the
benefits she had earned at a previous job. On direct examination, she testified as follows:
Q. In the second paragraph of that statement, you state that someone asked15
you personal questions about your past job. Can you elaborate on that
statement?
A. Yes. I used to work for Montgomery County, and they have benefits. And
that's what they was asking me about, because they know I used to work
for Montgomery County. Like they have retirement benefits. They have 20
sick days, vacation days. And so they was asking me about that.
Q. When you say "they," who are you—
A. It was the person in front of me, and then there was a person behind me,
because they knew I used to work for Montgomery County.
25
As Dotson made clear on cross-examination, it was not Williams who asked her about
these matters but some other employee. However, it is appropriate to take Dotson's mood into
account in considering her description of Williams' conduct, and similarly instructive to
discover the sources of her displeasure.
30
Although Williams did not ask Dotson about her wages and benefits at the prior job,
and although the record does not establish the identity of this questioner, Dotson apparently
considered this person to be another union supporter and regarded the question as an
unwelcome attempt to persuade her to vote yes. Thus, her complaint to Moore stated: "Why
was I asked personal question about my past jobs and current job while I was waiting to vote by 35
someone trying to force me to support something that I do not want."
Another employee, Beate Poston, also expressed annoyance that people were talking in
favor of the Union while waiting to vote. She testified, in part, as follows:
40
Q. Did you have any complaints about the election?

7 A preponderance of the evidence does not, in my view, establish that Williams told people who were
about to leave that he would "get" or "come after" them and I find that he did not. Moreover, the words
are sufficiently ambiguous that, even if Williams had used them, the message reasonably conveyed would
depend upon factors, such as his tone of voice and body language. The record does not indicate that
Williams had a threatening tone or demeanor when he spoke with employees about to leave, and I find
that he did not.
JD(ATL)-12-15
27
A. Yes, because we were—I mean, we were told how it was supposed to go.
We were supposed to get in line, not discuss the election or the vote. You
know, you go in one by one, place your vote, and then you leave without
discussing it.
Q. And based on what you had been told, the election didn't go how you 5
thought it would?
A. No.
Q. What was your complaint?
A. Well, for one thing, my understanding was that the union people didn't
have any business being there. I guess there is some other—you know, 10
some policies a little different on a post installation. And there was one
lady with a car with a sign by the side of the road. There were at least two
ladies in there. One lady at one point was taking pictures with her phone.
Not real sure what she was taking it of. So, I mean, it just didn't, you
know, feel right.15
In addition to these annoyances, Poston became irritated that Williams was showing
people his cellphone with "Vote Yes" on the screen. She testified that she became so upset that
she left the waiting line and went to the office of Transportation Director Moore, who asked her
to put her complaint in writing. Her resulting November 7, 2014 complaint stated, in part, as 20
follows:
I felt very much harassed yesterday, while waiting in line to vote. We were
advised not to talk about the matter while waiting to vote. However, a coworker,
Anthony Williams, was campaigning the entire time which was extremely 25
irritating. He had a screen on his phone that read "Union" spelled on top,
underneath was a box with a check mark next to a yes. He kept showing that to
people in line which in my opinion is totally unacceptable and made me really
mad.
30
Here is what his phone screen looked like.
[Sketch showing a box representing the cellphone screen, within
which the word "Union" appears above a smaller box with a
check mark and the word "yes."]35
It all made me feel very uncomfortable and I don't think I should have been
subjected to it!
Although Poston's written complaint focused on Williams' actions, her testimony made 40
clear that the actions of others also annoyed her. More generally, she was upset because people
did not follow the announced rules. Poston explained her motivation for filing the complaint
with Moore:
Q. Because you were upset about Anthony, correct?45
JD(ATL)-12-15
28
A. Anthony and the whole way it—this was not—I mean, it was the first
time I've ever been in an election like that. But from what we were told,
this was not how it was supposed to go. I mean, I can get in line and I can
go in there and vote whichever way I want to vote, but I shouldn't be, you 5
know, harassed or intimidated or anything like that. So that's what I had
an issue with.
Poston's statement that she should not be "harassed or intimidated" warrants a closer
look in view of similar language in Williams' discharge notice, which claimed that he had 10
violated Respondent's policy against "harassing and intimidating behavior." After giving the
testimony quoted above, Poston continued as follows:
Q. And you felt that you were being harassed.
A. Yeah, because, at that point, if I'm in line to vote, I know which way I'm 15
going to vote. You shouldn't be talking to me, especially if you're
knowingly for it.
Q. So, when you left the line, Anthony had already shown you the picture in
your face.
A. Yes. I don't think at that point that he's offered me the pen yet. I think that 20
was maybe after I came back.
Based on Poston's testimony, I find that Williams did nothing to her except show her the
cellphone with the "vote yes" message, offer to give her a pen with the union logo and urge her
to vote for it. Neither Poston's testimony nor other evidence indicates that Williams persisted 25
in displaying the "Vote Yes" cellphone screen to her or that he offered her a pen more than
once.
In other words, Poston's testimony does not indicate that Williams pestered her and I
find that he did not. Poston's complaint that she felt harassed reflected her exasperation with the 30
entire situation.
According to Transportation Director Moore, another employee, Karla Livingston, also
complained to her. At Moore's request, Livingston put the complaint in writing. This
document, dated November 6, 2014, states:35
I witnessed Anthony holding his phone with a picture of Vote Yes and looking at
me holding the phone to where he made sure I seen it, then would move on to
another person.
40
I was also confronted by Linda wanting to know what my vote was after the vote
was over, & she asked me in front of several co-workers.
Karla Livingston
45
The Lady was taking pictures of us in the bay. She was with the Union. I also
JD(ATL)-12-15
29
saw a lady from Union holding a sign @ the road of our parking lot.8
However, Livingston's statement does not indicate either that there was a
"confrontation" or that he was "holding the phone up intimidating" or "holding it
in someone's face." Livingston only stated that Williams "made sure I seen it, 5
then would move on to another person." Similarly, Livingston's statement
reasonably would not be read to describe a "charged atmosphere."
Livingston did not testify, so it is not possible to identify the employee
named Linda with certainty. However, that person may be the employee who 10
served as the Union's election observer, Linda Collins.
Two other employees also complained to Moore, and their complaints
attributed to Williams a statement which the Respondent characterized as a
racially-charged threat. Some background information will help place it in 15
context.
The November 6 election came just one week after Halloween. A local
resident had displayed, in front of his home, decorations so offensive that they
became the subject of news coverage: Effigies with black faces, hanging from 20
ropes as if in a lynching.
It should be stressed that no evidence establishes any connection between
this display and anyone associated with either the Respondent or the Union. The
record only indicates that one of the bus drivers passed by this residence, which 25
was on Litwin Street, in the course of taking children to and from school.
However, because of the news stories about the effigies, they had become a topic
of conversation.
On November 6, 2014, about three to four hours after the representation 30
election ended, an employee, Donna Laumb, beckoned for Moore to come into
the breakroom, where Moore spoke with Laumb and another employee, Terrie
Nolen. The record does not indicate that Laumb, who did not testify, provided
Moore with any information about Williams.9 Rather, it appears that the only
role she played in this matter was to put Moore in touch with Nolen.35
Moore asked Nolen to put her complaint in writing. Nolen prepared and
gave to Moore the following one-paragraph statement:

8 It is not clear what role, if any, Livingston's statement played in the decisions, by General Manager
Robert Gregory DeLancey, to suspend and, later, to discharge Williams. He testified that the statement
"was only included because this individual made a comment that, of the confrontation inside of the
facility, holding the phone up intimidating—what I took her statement as holding the phone up and
holding it in someone's face to see something is what I kind of took away from the tenor of what I would
call the charged atmosphere."
9 From the record, it appears that Laumb did not favor the Union. As noted above, the Union won this
election by one vote. Union supporter Cruthis testified that after the votes were counted, Laumb threw a
pen on the floor and stomped it.
JD(ATL)-12-15
30
While we were out in the bay waiting to vote Anthony Williams was threatening
people that if they left before they voted yes he was going to come after them
and when we was in the line to vote Mr. Williams said y'all had better vote yes if
you don't I will put a rope around your neck and hang y'all from a tree like they 5
did on Litwin St for the halloween joke and the way y'all did us back in the 60's.
Before the polls opened, some employees went to their cars. Nolen testified that
Williams told these employees "you cannot leave, you cannot leave, because if you leave I'm
going to get you."10
Nolen further testified that while she was standing in line waiting to vote, Williams said
"if you do not vote yes, I'm going to hang—I'm going to take a rope and hang you. I'm going to
take a rope and hang you all by the neck like they did over on Litwin Street and like you all did
to us back in the '60s."15
Williams expressly denied making this statement. However, I will defer resolution of
this credibility issue until later in the decision, after describing all the relevant facts. In the next
few paragraphs, which concern how an employee reasonably would understand the words
attributed to Williams, it will simplify the discussion to assume for the moment, but without 20
deciding, that Williams actually made the statement.
During cross-examination by Respondent, Nolen testified that she had felt threatened by
Williams' remark:
25
Q. What specifically about it made you feel threatened?
A. I mean him looking at me and telling me if I don't vote yes, he's going to
hang me. Yes, I was threatened by that.
However, Nolen's reaction at the time does not suggest fear for her safety. She testified 30
as follows:
Q. Did you say anything in response to Anthony making this threat?
A. I told him it wasn't very funny.
Q. Did he say anything in response to that?35
A. He laughed.
From Nolen's reply that it "wasn't funny" and William's laughter it would appear that
both of them understood the remark as attempted humor. Moreover, if Nolen really had felt
threatened at the time, she likely would have reported it to her supervisor, Transportation 40
Director Moore. However, Nolen did not. Moore learned about it later from a third person and
then approached Nolen.
The record suggests that, several hours after the election, Nolen was in the break room
talking with Donna Laumb. As noted above, Laumb's antiunion sentiments ran so strong that, 45
reportedly, when she heard that the Union had won the election, she threw a pen on the floor
JD(ATL)-12-15
31
and smashed it. Laumb brought Moore to speak with Nolen.
Based on this sequence of events, and assuming for the sake of analysis that Williams
actually spoke the words attributed to him, I am not persuaded by Nolen's testimony that she
felt threatened. Rather, I conclude that she felt annoyed and vented her annoyance to Laumb, 5
that Laumb alerted Moore and that Moore, in turn, asked Nolen to write a statement.
Moore also asked driver Janice Schwenz to write a statement. Schwenz had not
complained to Moore, but she did voice her annoyance to other employees and Moore found
out. In response to Moore's request, Schwenz wrote and gave to Moore the following 10
statement:
11-6-2014
Taylor Motors and To Whom it may concern15
As I stood in line to vote today on the union, one of the guys for the union
Anthony Williams #13 was saying to us if we didn't vote yes they were gonna
get rope and hang us like the joke on Litwin St and the way we did them (the
Blacks) in the 60's.20
As noted above, Schwenz testified that on the day of the election, Williams was being
his "normal Anthony self," meaning loud and boisterous. According to Schwenz, he was
walking up and down the line of employees waiting to vote, handing out Union pens, and his
voice was loud enough to hear even when he wasn't up close. Schwenz further testified:25
Q. You mentioned he was saying that it was going to be like going to Burger
King and have it our way.
A. Yes, right.
Q. Did he seem to be in a good mood, in your opinion?30
A. Yes.
Q. Did he hand you a pen?
A. He tried to hand me a pen, but I didn't take it.
Schwenz did attribute to Williams a remark to the effect that if they did not vote for the 35
Union he would get rope and "hang us like the joke on Litwin St." However, the following
portion of her testimony leads me to suspect that the underlying reason for her annoyance was
simply Williams' support for the Union:
Q. While you were in line around Terrie and Bea and Mary, and Anthony is 40
walking up and down the line, did you hear Anthony say anything that
troubled you?
A. He, well, yes, because he was trying—it seemed to me that he was trying
to get people to vote yes for the Union.
45
JD(ATL)-12-15
32
Thus, when asked about seeing anything that "troubled you," Schwenz answered by mentioned
Williams' advocacy for the Union rather a comment about hanging. This response is consistent
with my impression that it was the union organizing campaign itself, and the prospect of having
a union in the workplace, which vexed Schwenz and others. Considering their strong 5
opposition to the Union, Williams' enthusiastic "Burger King" remark—that employees would
"have things our way"—did not ring bells of celebration but alarm. Schwenz' testimony
continued as follows:
Q. Can you elaborate a little bit on what you mean by that?10
A. Well, when he was saying the stuff about we're going to Burger—it's
going to be like Burger King and we're going to have it our way, and then
one of the girls asked him, well, what if it doesn't go your way. And he
said some troubling things then. That's when everything started about,
well, we'll just have to get some rope and do you guys like the Halloween 15
thing over on Litwin and kind of like you guys did us back in the '60s.
Q. When he said that, did he address that statement to anybody in particular?
A. No, he just said it out.
Later in her testimony, Schwenz described how the listeners reacted to that comment. 20
According to Schwenz, no one said anything except Beate Poston. Schwenz testified:
Q. I just want to make sure. You heard Bea tell him to just—
A. Yes.
Q. Again, in your own words, what did you—25
A. She just told him, Anthony, I think it would be best if you just got away
from us, and went on and got in line, because we're going to vote the way
we want to, and you vote, you do the same.
This testimony raises a credibility issue. Poston testified that she did not hear Williams 30
make the "hanging" comment which Schwenz attributed to him. Similarly, Poston denied
hearing Williams say anything about Litwin Street.
Moreover, Poston testified that Williams was "always on the loud side," which is
consistent with Schwenz' testimony that she could hear what Williams was saying even when 35
he was not nearby. Poston was standing close to Schwenz and, considering Williams' loud
voice, should have heard the "hanging" comment if Williams actually made it.
Additionally, the statement which Poston prepared for Moore described Williams as
"extremely irritating." In that statement, Poston's statement described how Williams had 40
displayed his cellphone with the "Union Yes" image to the employees waiting to vote, and said
that such conduct "in my opinion is totally unexceptable [sic] and made me really mad." In her
statement, Poston also said that Williams' "campaigning" for the Union "extremely irritating."
Clearly, Poston considered Williams' actions to be obnoxious, and obnoxious actions 45
tend to stick in memory. If she had heard Williams make the "hanging" comment Schwenz
JD(ATL)-12-15
33
attributed to him, she would be unlikely to forget it. However, her statement to Moore did not
mention such a statement and, at the hearing, she explicitly denied hearing Williams say
anything about hanging or the Halloween display on Litwin Street.
Another bus driver, Mary Dotson, also denied that she heard Williams say anything 5
about the Halloween display. The statement which Dotson gave to Transportation Director
Moore, and quoted above, complained about Williams' statement that he would block the
driveway and about Williams displaying his cellphone with the "Union yes" message, but said
nothing about Williams making a remark about hanging or the Halloween display. Considering
Dotson's annoyance, I believe it almost certain that she would have remembered and reported 10
the "hanging" statement attributed to Williams if she had heard him make it.
Additionally, employee Sandra Fenwick testified that she was standing near Williams as
she waited to vote but she did not hear him make the "hanging" statement. Her testimony
included the following:15
Q. And you said Anthony was in line near you?
A. He was behind me in line.
Q. While you were near Anthony, did you ever hear him say anything about
Litwin Street?20
A. No.
Q. Did you ever hear him say anything about hanging anybody?
A. No.
Q. Did you hear him say anything that you would consider to be a threat in
any way?25
A. No.
Q. Is Anthony a loud person?
A. Yes.
On that last point—that Williams was loud—all witnesses agree. In general, the fact 30
that a witness did not hear a statement does not rule out the possibility that the other person
indeed made it. However, the loudness of Williams' voice, which could be heard even when he
was not up close, increases the likelihood that what he said would be heard.
To summarize, two witnesses—Nolen and Schwenz—testified that Williams made a 35
comment about hanging. According to Nolen, Williams said "if you do not vote yes, I'm going
to hang—I'm going to take a rope and hang you. I'm going to take a rope and hang you all by
the neck like they did over on Litwin Street and like you all did to us back in the '60s."
Schwenz' testimony is similar but not identical. It is similar enough to corroborate 40
Nolen's, but not so similar as to suggest collusion. According to Schwenz, when someone
asked "what if it doesn't go your way," Williams replied "we'll just have to get some rope and
do you guys like the Halloween thing over on Litwin and kind of like you guys did us back in
the '60s."
45
However, Williams expressly denied making the statement. Poston, Dotson, and
JD(ATL)-12-15
34
Fenwick, who were within earshot of Williams, testified that they did not hear him make such a
statement.
This conflict in the testimony raises two possibilities: Either Nolen and Schwenz were
not telling the truth when they testified that Williams made the "hang you" remark or Williams 5
was not telling the truth when he denied it. Not all lies require the same amount of effort or
require the same amount of motivation. Making up a story about someone entails more work
and planning than a simple untrue "I didn't do it." Typically, some rather significant motivator
must exist for a person to manufacture a story out of whole cloth. However, the motivation to
make an exculpatory denial—to escape consequences—is both common and obvious.10
These principles suggest that false exculpatory denials may occur more often than
fabrications, but other factors must be taken into account. Here, the record suggests that Nolen
and Schwenz not only disfavored the Union but also resented the union organizing drive.
Williams' loud delight that employees soon would run things "their way" antagonized 15
employees who did not want the company to be run Williams' way.
The level of resentment may well have been high enough to constitute a motivation for
fabrication, so the possibility of a made-up story seems roughly equivalent to that of a false
exculpatory denial. At the least, I conclude that, even if some circumstances might make it 20
appropriate to consider likelihood when resolving a credibility issue, those circumstances are
not present here.
Another factor commonly considered, witness demeanor, provides no assistance here.
All the witnesses appeared to be telling the truth.25
However, I do believe it is significant that three witnesses who were in range of
Williams' voice did not hear him make the "hanging" statement. It also may be noted that two
of these three were annoyed at Williams and submitted statements to Moore describing other
things Williams did. Almost certainly, they would have remembered and freely testified about 30
the hanging statement if they had heard Williams make it.
Stated another way, if Williams really had made the "hanging" statement, five witnesses
would have testified to that effect rather than just two. Therefore, I cannot conclude that
evidence makes it "more likely than not" that Williams made the "hanging" statement which 35
Nolen and Schwenz attributed to him.
It should be stressed that the scales appear about evenly balanced and my decision not
to credit this testimony of Nolen and Schwenz might well be wrong. However, a decision must
be made. In my view, a preponderance of the evidence does not establish that Williams made 40
any statement about hanging people or any reference to the Halloween display on Litwin Street.
Therefore, I find that he did not.
Williams' Suspension and Discharge
45
The first election took place in the morning on November 6, 2014, and some time that
JD(ATL)-12-15
35
afternoon, Transportation Director Moore contacted her superior, General Manager Robert
Gregory DeLancey, who works at the Respondent's administrative offices in Murray,
Kentucky. According to DeLancey, Moore "indicated that Anthony Williams had threatened
some ladies and said that he was going to hang them with a rope." When Moore told DeLancey
about the statements she had received from employees, he asked her to send him copies. 5
DeLancey testified that after he read the statements, he decided to suspend Williams:
Q. What are the reasons that Taylor Motors suspended Anthony?
A. What are the reasons?
Q. Yes.10
A. For the remarks that were racially charged. Those were taken very
seriously. Our policy says that if anyone were to threaten anyone with
physical violence, that there is a provision that we can at any time move
to an immediate suspension. And the policy also allows for a 3-day
period to conduct such. And we wanted to make sure that we followed 15
our policy.
Three of the statements which DeLancey reviewed before deciding to suspend
Williams—the statements of Mary Dotson, Karla Livingston and Beate Poston—did not
mention the "hanging" remark. When asked about these statements, DeLancey's answer 20
suggested that he defined the term "threat of physical violence" broadly:
Q. So out of the three statements you just reviewed, Mary's, Karla's, and
Beate's, are there any things from the statement that became part of the
reasons that you suspended Anthony?25
A. The statement from Mary Dotson confirms that—let's see, I overheard
Anthony tell the aide that I will block the driveway and you can't get out.
And that was independent of the other statements. That was, as I took it, a
physical act to try to prevent someone from doing something.
30
DeLancey testified that he made the decision to suspend Williams. Operations Director
Moore corroborated this testimony. Based on that credible and uncontradicted testimony, I find
that DeLancey alone was responsible for this decision. Further, I credit the following
testimony of DeLancey concerning his reasons for the decision:
35
Q. So after going through all of those statements, would it be fair to say that
the reasons for Anthony's suspension were racially charged remarks,
threats of physical violence that are included in the first two statements,
General Counsel's Exhibits 3 and 4, and the threat statement included in
General Counsel's Exhibit 5 about blocking a driveway and can't get out.40
A. No question.
Q. And are those the only reasons for Anthony's suspension?
A. The only reason.
On November 7, 2014, Moore met with Williams to notify him that he was being 45
suspended, with pay, pending an investigation. DeLancey did not attend this meeting. Moore
JD(ATL)-12-15
36
read to Williams from the suspension notice, which stated, in part, as follows:
Your conduct and statements on November 6, 2014 have been called into
question as to whether such conduct violated Taylor Motors' Rule 4.3 relating to
harassing and intimidating behavior in the workplace. Multiple employees 5
complained about your threats and intimidating conduct while outside in the bay
yesterday morning, as well as while you and other employees were waiting in
the line to vote. These type of threats and racially-charged comments are
completely unacceptable in the workplace. The Company intends to
immediately commence an investigation into this alleged misconduct and 10
violation of Company policy.
The suspension notice was written on a standard form. In the section pertaining to
applicable company policies, the notice stated:
15
Under Rule 4.3, Taylor Motors strictly prohibits all forms of harassment and
intimidating conduct in the workplace. The Company's Standards of Conduct
also prohibit sexual or other unlawful or unwelcome harassment. As noted
above, Taylor Motors will conduct an investIgation into your conduct and
statements on November 6, 2014, and make a determination of whether your 20
conduct violated these standards and policies.
Even though the suspension notice referred to threats, "harassment and intimidating
conduct," Respondent did not inform Williams of the specific statement attributed to him.
Williams credibly testified as follows:25
Q. What happened when she came back to the office?
A. When we came back in the office, she had another lady in there that was
present, named Ms. Ann Metcalf (ph.), in there. She shut the door, and
she told me that—she said multiple people, multiple people had filed a 30
complaint. And I asked her who. And I said, what did I do wrong? She
said, oh, I can't tell you that.
Moore's own testimony confirms that she provided Williams little information about the
accusations against him:35
Q. When you met with Anthony to suspend him, did you in any way
describe the nature of the threat that he had made to him?
A. Again, I read from the paper.
Q. For the suspension?40
A. From the suspension, also, I read from the paperwork.
Q. So did you say anything to him during that meeting about hanging or—
A. No.
Q. —a rope, a noose?
A. No.45
JD(ATL)-12-15
37
Even though Moore did not inform Williams of the specific allegations, Williams
emphatically denied any wrongdoing. Notwithstanding that Respondent had informed
Williams that it would be investigating the allegations, no one contacted him.
5
Neither Moore nor DeLancey did any further investigation. According to DeLancey,
the Respondent's legal counsel conducted the investigation. DeLancey testified that, after
conferring with counsel, he decided to discharge Williams:
Q. The reasons you gave for the suspension, the racially charged remarks 10
that include a threat of physical violence and the statement to block a
driveway so that an employee could not get out, were these the reasons
for terminating Anthony Williams?
A. It was.
Q. Were these the only reasons for terminating Anthony Williams?15
A. The only reason.
The termination notice which Respondent issued to Williams described the reasons for his
discharge as follows:
20
Several employees were interviewed during an investigation calling into question
your conduct and statements November 6, 2014. We have concluded after
speaking with them that you have violated Taylor Motors Rule 4.3 relating to
harassing and intimidating behavior in the workplace. Multiple employee's
indicated you made racially-charged comments, threatening them with physical 25
violence. Employees clearly felt intimidated by your statements creating a
hostile environment. This was inappropriate and violates our policy.
Legal Analysis
30
The parties disagree about which analytical framework I should follow in examining the
evidence. The General Counsel argues that the facts should be analyzed in accordance with
NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), and its progeny. This framework applies
when an employer honestly but mistakenly believes that an employee has engaged in
misconduct during the course of activity protected by the Act, and discharges or disciplines the 35
employee for the supposed misconduct.
Thus, Williams was speaking to employees about the Union, which is protected activity.
Respondent received and believed reports that Williams made threats to employees while he
was talking to them about the Union, and discharged him for making the threats.40
Contrary to the General Counsel, the Respondent contends that the case should be
analyzed under the framework which the Board established in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Respondent
argues that the Burnup & Sims framework should not be used because Williams was not 45
engaged in protected activity. Although talking with fellow employees about a union ordinarily
JD(ATL)-12-15
38
is protected activity, Respondent contends that in this instance, where the conversation
involved employees waiting in line to vote in a Board-conducted election, such talk constituted
prohibited electioneering and therefore lies outside the scope of the Act's protection.
Respondent cites Michem, Inc., 170 NLRB 362 (1968), in which the Board set aside an 5
election because the Union's secretary-treasurer had stood and talked with employees waiting to
vote and had sustained conversations with them. The Board concluded that the potential for
distraction, last minute electioneering or pressure, and unfair advantage from prolonged
conversations between representatives of any party to the election and voters waiting to cast
ballots was of sufficient concern to warrant a strict rule against such conversations, without 10
inquiry into the nature of the conversations.
However, the Michem case solely involved representation issues, not the question of
whether an employee's prounion activity enjoyed the protection of the Act. It does not suggest
that conduct which is objectionable—that is, which warrants setting aside the election—is 15
therefore outside the Act's protection. The Board sets exacting standards for its elections to
assure that employees enjoy free and uncoerced choice, but establishing such laboratory
conditions does not create a Section 7-free zone where the Act's protections do not apply.
Moreover, the Board's Michem rule only applies to conduct of a party that involves 20
prolonged conversations with employees waiting in line to vote. Lowe's HIW, Inc., 349 NLRB
478, 479 (2007). Williams was not a party and the record does not establish that he was acting
as an agent of a party. Accordingly, I reject the Respondent's argument that Williams was not
engaged in protected activity.
25
In arguing that the Wright Line framework should be followed, Respondent cites Sutter
East Bay Hospital v. NLRB, 687 F.3d 424 (D.C. Cir. 2012). However, in that decision, the
Court focuses primarily on how the administrative law judge performed the Wright Line
analysis rather than on the judge's decision to use the Wright Line rather than the Burnup &
Sims framework. The Court specifically stated that it did not decide which test, Wright Line or 30
Burnup & Sims, was correct under the circumstances.
The Respondent also cites Fresenius USA Mfg., 358 NLRB No. 138 (2012), to support
its argument that the Wright Line standard and framework should be applied here. In view of
the Supreme Court's decision in NLRB v. Noel Canning, 573 U.S. ___ (2013), I will not rely on 35
Fresenius USA Mfg. as binding precedent.10 However, Respondent cited Fresenius during oral
argument because it summarized existing law, and for that purpose, as an analysis and
discussion of prior cases, the opinion speaks with the same authority as would a law review
article by distinguished professors.
40
So, it may be noted that the Board, in Fresenius, did not adopt the judge's alternative
Wright Line analysis: "As the Board has previously explained, however, Wright Line is
inapplicable where, as here, an employer undisputedly takes action against an employee for

10 In Noel Canning, the Supreme Court held that the President had not appointed three Board members in a
manner consistent with the Constitution's recess appointments clause, rendering those appointments
invalid. Two of these Board members sat on the panel which issues Fresenius USA Mfg.
JD(ATL)-12-15
39
engaging in protected conduct. . ." Fresenius USA Mfg., 358 NLRB No. 138, slip op. at 4, fn.
7, citing Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1322 (2006).
As discussed above, I have concluded that Williams was engaged in the protected
activity of trying to persuade fellow employees to vote for the Union, and Respondent has 5
admitted it discharged Williams for statements he made as part of that effort to persuade.
Therefore, a Wright Line analysis is not appropriate. St. Joseph's Hospital, 337 NLRB 94, 95
(2001); Saia Motor Freight Line, Inc., 333 NLRB 929 (2001); Phoenix Transit System, 337
NLRB 510 (2002).
10
Having ruled out a Wright Line analysis, we come to another fork in the decision tree.
Violations involving employees who were discharged for conduct associated with their
protected activity can be divided into two categories: (1) Cases involving employees who were
discharged because their employers honestly but mistakenly believed that they had engaged in
misconduct during the course of the protected activity and (2) Cases involving employees who 15
did, in fact, mingle some misconduct with the protected activity, but the misconduct was not
opprobrious enough to forfeit the protection of the Act. The Board evaluates cases in the first
category using the Burnup & Sims framework. For cases in the second category, the analysis
focuses on the factors the Board set forth in Atlantic Steel Co., 245 NLRB 814 (1979), and its
progeny.20
Here, the General Counsel's theory of the case falls within the first category. In
agreement with the General Counsel, I conclude that Burnup & Sims provides the correct
analytical framework. The steps of that analysis may be summarized as follows: When an
employer discharges an employee for misconduct arising out of a protected activity, the 25
employer has the burden of showing that it held an honest belief that the employee engaged in
serious misconduct. Once the employer establishes that it had such an honest belief, the burden
shifts to the General Counsel to affirmatively show that the misconduct did not in fact occur.
Pepsi-Cola Co., 330 NLRB 474 (2000), citing Rubin Bros. Footwear, Inc., 99 NLRB 610, 611
(1952), enf. denied on other grounds 203 F.2d 486 (5th Cir. 1953).30
The testimony of Respondent's general manager DeLancey, quoted above, establishes
that he made the decisions to suspend and discharge Williams and that the only reasons for
these actions were DeLancey's beliefs that (1) Williams had made racially charged remarks that
included a threat of physical violence and (2) Williams had said he would block a driveway so 35
that an employee could not get out. DeLancey relied on the statements written by a number of
employees who voted in the election, and he also consulted with legal counsel. Therefore, I
find that he held honest beliefs, in good faith, that Williams had engaged in this misconduct.
However, parts of the employee statements misled DeLancey. Their authors disliked 40
the entire union organizing campaign and resented having to participate in the election. In
contrast, Williams had worked hard to bring about the election. For him, the sight of
employees lined up to vote created a moment of triumph tempered by the fear it might be
momentary, a fear spurring him to campaign. Both his glee and his advocacy grated on the
antiunion employees and he became the focus of their resentment.45
JD(ATL)-12-15
40
The record does not reflect the extent to which DeLancey, who worked at the corporate
offices rather than at the Fort Campbell facility, understood the depth of employee hostility to
the Union, or how it could distort their reports. Taking the employees' statements at face value,
he mistakenly concluded that Williams had said the words which some of the statements 5
attributed to him. Thus, I conclude that the Respondent has established that it acted from an
honest, good faith belief that Williams had engaged in misconduct.
Under the Burnup & Sims framework, the burden now shifts to the General Counsel to
prove that Williams actually had not engaged in the reported misconduct. For the reasons 10
discussed above, I conclude that the government has carried this burden.
My decision to credit Williams' denials rested to a considerable extent on the fact that
other witnesses did not corroborate the testimony of Schwenz and Nolen. Considering
Williams' loud voice and his proximity to the other witnesses, it seems quite likely that they 15
would have heard the "hanging" comment if Williams actually had made it. Moreover, these
witnesses did not favor the Union and would have been inclined to remember and report any
such "hanging" remark.
Although this absence of corroboration led me to credit Williams' denial, some doubt 20
persists. My finding that Williams did not make the "hanging" remark requires me to conclude
that Schwenz and Nolen went to the trouble of making up a story and giving false testimony
under oath. No evidence of any such collusion exists in the record. Nothing in the demeanor
of either witness suggested untruthfulness.
25
Notwithstanding these concerns, the entire record did not persuade me that it was more
likely than not that Williams made the statements attributed to him. Therefore, I found that he
did not make them.
However, it may noted that even if I had credited Nolen and Schwenz, and found that 30
Williams made the statements in question, that would not change my conclusion under the
Burnup & Sims analysis. Respondent discharged Williams because DeLancey held the honest
belief that Williams had threatened employees with physical violence and made racially
charged comments. Considering the totality of the circumstances and applying an objective
standard, I would conclude that the comments attributed to Williams did not constitute threats 35
of physical violence and did not create a racially charged atmosphere or intimidation.
In reaching this conclusion, I would not be applying an Atlantic Steel analysis. In other
words, I would not be concluding that Williams engaged in misconduct but that the misconduct
was not so opprobrious it forfeited the Act's protection. Rather, assuming that Williams had, in 40
fact, made the "hanging" remark attributed to him, I would conclude that the employees who
heard it would not reasonably have understood it to be a threat and would not reasonably have
felt intimidated or feared for their safety. Therefore, even if Williams had made the remark, it
would not have constituted the threat or resulted in the intimidation which DeLancey believed
occurred.45
JD(ATL)-12-15
41
The record clearly reflects that Williams was in a cheerful mood—one witness
described it as jolly, like Santa Claus—when the November 6, 2014 election took place.
Indeed, to those employees who opposed the Union and resented the election, Williams might
well have appeared to be disgustingly cheerful. They would not have mistaken attempted 5
humor for a serious threat.
Thus, although Nolen claimed that Williams made the "hanging" remark, her reaction to
it does not suggest that she feared for her safety. She testified as follows:
10
Q. Did you say anything in response to Anthony making this threat?
A. I told him it wasn't very funny.
Q. Did he say anything in response to that?
A. He laughed.
15
Nolen's reply that "it wasn't very funny" indicates she recognized an attempt at humor.
Although in some circumstances a joke can disguise a threat, those circumstances are not
present here.
However, the one-paragraph statement which Nolen submitted to Moore, and upon 20
which DeLancey relied in deciding to discharge Williams, did not mention Nolen's "wasn't very
funny" response or Williams' laughter. Even if the facts recited in Nolen's terse note were true,
leaving out other facts causes the report to be misleading.
Nolen's note also states that "Williams was threatening people that if they left before 25
they voted yes he was going to come after them." The use of the word "threatening" suggests
that Williams had a menacing demeanor, but credible evidence establishes just the opposite.
Even assuming that Williams told someone that "if you leave I'll come after you" or "if you
leave I'll get you"—which Williams credibly denied—the record would not support a
conclusion that Williams uttered these ambiguous words in a menacing way."30
Employees who worked with Williams would not mistake banter for malice and would
not confuse exuberance with intimidation. Janice Schwenz testified that on the day of the
election Williams was being his "normal Anthony self," meaning boisterous and attention
seeking. However, the brief note which Schwenz provided to Moore, and upon which 35
DeLancey relied, did not include this context.
The discharge notice which Respondent provided to Williams stated, in part, that he had
made "racially-charged comments." If Williams did, in fact, make the "hanging" remark," it
certainly did raise the subject of race and race relations. By referring not only to the Halloween 40
display but also to "the way y'all did us back in the 60's" (the words Nolen's note attributed to
Williams) the remark raises the subject of race in a potentially divisive way.
Williams' discharge notice stated that his actions violated Respondent's Rule 4.3. That
rule states, in pertinent part:45
JD(ATL)-12-15
42
Taylor Motors is committed to providing a work environment that is free of
discrimination and unlawful harassment. Actions, words, jokes or comments
based on an individual's sex, race, ethnicity, age, religion, or any other legally
protected characteristic will not be tolerated.5
The rule thus makes no exception for humor or attempted humor. If Williams had, in
fact, made the hanging comment, it fairly would fit the description of a comment based on an
individual's race and would be proscribed by Rule 4.3.
10
However, Respondent did not discharge Williams just for making a racial remark but
rather for making, in the words of the discharge notice, "racially-charged comments,
threatening them with physical violence. Employees clearly felt intimidated by your statements
creating a hostile environment." Even assuming that Williams made the "hanging" remark, no
evidence indicates any listener believed he was going to get a rope and attempt such a deed 15
and, considering the totality of circumstances, no listener would reasonably interpret the
statement as a threat.
Additionally, the record does not establish either that employees felt intimidated or that
the remark, if made, created a hostile environment. The record does indicate some hostility, 20
but it was hostility to the Union organizing drive.
Thus, although the hanging comment, if made, would violate the Rule 4.3 ban of jokes
based on race, it would not reasonably create the racially charged intimidating environment
Respondent claimed and it would not constitute or be understood as a threat. The record does 25
not persuade me that Respondent would have discharged Williams for a racial comment alone,
in the absence of the supposed threats of physical violence and intimidation.
Accordingly, I conclude that even if Williams had made the remarks attributed to him,
the Respondent held an honest but mistaken belief about the gravamen, circumstances and 30
effects of those remarks and based its discharge decision on that mistaken belief. Therefore,
even if Williams had made an attempted joke about hanging, is suspension and discharge
would violate Section 8(a)(1) of the Act.
However, as discussed above, I find that Williams did not make the "hanging" remark 35
attributed to him and also did not say that he would block the driveway or go after employees
who left. Therefore, the Burnup and Sims analysis leads me to conclude that Respondent's
suspension and discharge of Williams violated Section 8(a)(1) of the Act. I recommend that
the Board so find.
40
JD(ATL)-12-15
43
Summary of Unfair Labor Practice Findings
Here is a summary of the unfair labor practice findings and conclusions discussed
above:5
COMPLAINT
PARAGRAPH
DESCRIPTION HOLDING
7(a)(i) interrogation violation
7(a)(ii) impression of surveillance no violation
7(b) interrogation no violation
7(c)(i) interrogation no violation
7(c)(ii) impression of surveillance no violation
7(d) interrogation no violation
7(e)(i) interrogation no violation
7(e)(ii) prohibition on distribution no violation
8 confidentiality agreement violation
9 suspension of Williams violation
10 discharge of Williams violation
The Objections
On December 8, 2014, the Respondent and Union executed, and the Regional Director 10
for Region 10 approved, a stipulation to set aside election, which nullified the results of the
November 6, 2014 election. On January 15, 2015, pursuant to this stipulation, the Board
conducted a second election.
The tally of ballots, prepared immediately after this election, showed that of about 67 15
eligible voters, 28 cast ballots for the Union and 33 against. Additionally, there were 3
challenged ballots, too few to affect the outcome.
The Union filed objections. On February 20, 2015, the Regional Director issued a
report on objections and order directing hearing, which designated 5 of the objections for 20
hearing. Three of these objections concerned matters which also were alleged to be unfair
labor practices but the other two, Objection 5 and Objection 7, did not. However, the Union
withdrew Objection 5 and 7 before the hearing.
The remaining objections concern the conduct alleged in Complaint paragraphs 8, 9,25
and 10. For the reasons discussed above, I have concluded that the Respondent violated the
Act in each instance. Specifically, I have recommended that the Board find that Respondent
violated Section 8(a)(1) of the Act by maintaining the overly broad
confidentiality/nondisclosure agreement alleged in complaint paragraph 8, and by suspending
and discharging employee Williams, as alleged in complaint paragraphs 9 and 10, respectively.30
Conduct which violates Section 8(a)(1) is, a fortiori, conduct which interferes with the
JD(ATL)-12-15
44
exercise of a free and untrammeled choice in an election. Arkema, Inc., 357 NLRB No. 103,
slip op. at 3 (2011), citing Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787 (1982).
Accordingly, I find merit to the Union's objections and recommend that the Board set
aside the January 15, 2015 election.5
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to 10
effectuate the policies of the Act, including posting the notice to employees attached hereto as
Appendix A. In addition to physical posting of paper notices, the notice shall be distributed
electronically, such as by email, posting on an intranet or internet site, and/or other electronic
means, if the Respondents customarily communicate with its employees by such means. J.
Picini Flooring, 356 NLRB No. 9 (2010).15
Respondent must offer Anthony Williams immediate and full reinstatement to his
former position or to a substantially equivalent position if his former position is no longer
available, and make him whole, with interest, for all losses he suffered because of the unlawful
discrimination against him. The make-whole relief shall be computed in accordance with F. W. 20
Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
The Respondent also must (1) submit the appropriate documentation to the Social 25
Security Administration so that when backpay is paid, it will be allocated to the appropriate
calendar quarters, and/or (2) reimburse the discriminatee for any additional Federal and State
income taxes the discriminatee may owe as a consequence of receiving a lump-sum backpay
award in a calendar year other than the year in which the income would have been earned had
the Act not been violated. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 30
(2014).
The Respondent must also rescind the overly-broad confidentiality/nondisclosure
agreement and notify all employees that it is no longer binding or in effect.
35
The complaint seeks, as part of the remedy, an order requiring that the Respondent
reimburse Williams for all search-for-work and work-related expenses regardless of whether he
received interim earnings in excess of these expenses, or at all, during any given quarter, or
during the overall backpay period. However, in the Board's bifurcated hearing process, matters
related to a discriminatee's interim expenses normally are litigated after the issuance of a 40
compliance specification defining the matters potentially in dispute.
Such a compliance specification alleges, and therefore offers a respondent the
opportunity to challenge, the entire formula used to compute the make-whole remedy. Thus,
Section 102.55 of the Board's Rules and Regulations provides that a compliance specification 45
"shall specifically and in detail show, for each employee, the backpay periods broken down by
JD(ATL)-12-15
45
calendar quarters, the specific figures and basis of computation of gross backpay and interim
earnings, the expenses for each quarter, the net backpay due, and any other pertinent
information." (Italics added.)
In many cases, the parties are able to agree on what constitutes full compensation and 5
such agreement makes issuance of a compliance specification unnecessary. If parties cannot
agree, both the appropriate formula and the monetary amount can be litigated in a compliance
proceeding. However, the present case is still in the liability stage and no compliance
specification has issued. It would be premature, I believe, to litigate one issue related to the
backpay formula—the appropriate treatment of interim expenses—when no complete backpay 10
formula has been alleged.
In the complaint, the government also seeks an order requiring that the Respondent
convene a meeting of employees to hear the notice read either by the Respondent's
representative or by a Board agent in the presence of the Respondent's representative. This 15
remedy goes beyond the Board's customary one. Although it can be necessary in extraordinary
cases, I do not believe such circumstances are present here.
Conclusions of Law
20
1. The Respondent, Taylor Motors, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, American Federation of Government Employees, Local
2022, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act.25
3. The Respondent violated Section 8(a)(1) of the Act by interrogating employees
about their union activities; by requiring employees to sign an overly-broad
confidentiality/nondisclosure agreement which reasonably would cause employees to believe
that they could not engage in certain activities, such as the discussion of wages and working 30
conditions, protected by Section 7 of the Act; and by suspending and discharging employee
Anthony Williams.
4. The Respondent did not violate the Act in any other manner alleged in the
Complaint.35
On these findings of fact and conclusions of law and on the entire record in this case, I
issue the following recommended11
ORDER40
The Respondent, Taylor Motors, Inc., Fort Campbell, KY its officers, agents,
successors, and assigns, shall

11 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)-12-15
46
1. Cease and desist from:
(a) Interrogating employees about their union activities or sympathies or
those of other employees.5
(b) Requiring employees to sign any agreement which they reasonably
would understand to limit their right to discuss wages or other terms and conditions of
employment or to engage in other activities protected by the National Labor Relations Act.
10
(c) Discouraging employees from engaging in protected activity by
suspending, discharging, or taking other adverse action against employees who have engaged in
such activity and did not engage in serious misconduct during the course of that protected
activity.
15
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing, or to
engage in concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.20
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) Rescind its confidentiality/nondisclosure agreement and provide each 25
employee who received and/or signed this agreement a written notification that the agreement
has been rescinded.
(b) Offer Anthony Williams immediate and full reinstatement to his former
job, of, if that position is no longer available, to a substantially equivalent position.30
(c) Make Anthony William whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound interest as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).35
(d) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful suspension discharge of Anthony Williams and, within 3 days
thereafter, notify him in writing that this has been done and that neither the suspension nor the
discharge will not be used against him in any way.40
(e) Compensate employees for any adverse tax consequences of receiving a
lump-sum backpay award, and file a report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarter for each employee.
45
JD(ATL)-12-15
47
(f) Within 14 days after service by the Region, post at its facilities in ,
copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by
the Regional Director for Region 10, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent immediately upon receipt and maintained for 5
60 consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a 10
copy of the notice to all current employees and former employees employed by the
Respondent at any time since November 24, 2014. Excel Container, Inc., 325 NLRB 17
(1997).
(g) Within 21 days after service by the Region, file with the Regional 15
Director a sworn certification of a responsible official on a form provided by the Regional
Director attesting to the steps that the Respondent has taken to comply.
Dated Washington, D.C., July 14, 2015.
20
___________________________________
Keltner W. Locke25
Administrative Law Judge

12 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we violated federal labor law and has
ordered us to post and abide by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these
rights, guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT interrogate our employees about employees' Union or protected, concerted
activities.
WE WILL NOT require employees to sign a confidentiality agreement which limits or
reasonably could be understood to limit their right to discuss wages, hours, or other terms and
conditions or to engage in other activities protected by federal law and WE WILL NOT
enforce any such agreements that employees already have signed.
WE WILL NOT suspend or discharge employees for discussing the Union with employees or
engaging in other activities protected by federal law.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL immediately rescind the confidentiality agreements which employees have signed
and notify these employees that it no longer is in effect.
WE WILL, within 14 days from the date of the Board's Order, offer Anthony Williams full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to seniority or any other rights or privileges previously enjoyed.
WE WILL make Anthony Williams whole, with interest, for all losses of earnings and other
benefits he suffered as a result of the discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days of the Board's Order, remove from our files any references to the
unlawful suspension and discharge of Anthony Williams and WE WILL, within 3 days
thereafter, notify him that the discharge will not be used against him in any way.
TAYLOR MOTORS, INC.
(Respondent)
Dated: ___________________ By: ___________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You
may also obtain information from the Board’s website: www.nlrb.gov.
233 Peachtree St., N.E.; Harris Tower, Ste. 1000; Atlanta, GA 30303-1531
(404) 331–2896 Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/10-CA-141565 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (205)933–3013