Taylor Motors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 29, 2017

10-CA-141565 (N.L.R.B. Sep. 29, 2017)

JD─80─17
Fort Campbell, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
TAYLOR MOTORS, INC.
and CASES 10-CA-141565
10-CA-141578
AMERICAN FEDERATION OF 10-CA-145467
GOVERNMENT EMPLOYEES (AFGE), 10-RC-137728
AFL-CIO, LOCAL 2022
Katherine Miller, Esq., for the General Counsel.
Ms. Judy Hansford, of Fort Campbell, KY, for the
Charging Party.
Christopher Caiaccio, Esq. and Michael G. Johnson, Esq.
(Christopher Caiaccio, Esq.), of Atlanta, GA, and
Nashville, TN, for the Respondent.
SUPPLEMENTAL DECISION
KELTNER W. LOCKE, Administrative Law Judge. On July 14, 2015, I issued an initial
decision which found that the Respondent had unlawfully discharged its employee Anthony
Williams. On March 13, 2017, the Board remanded the matter to me for further analysis and the
preparation of a supplemental decision. For the reasons stated below, I find that the General
Counsel has proven that an employee discharged for misconduct during the course of protected
activity did not, in fact, engage in such misconduct, notwithstanding the Respondent's honest
belief that he had. Therefore, I conclude that Respondent violated Section 8(a)(3) and (1) when it
discharged the employee.
Background
Under a contract with the United States Army, the Respondent operates school buses at
Fort Campbell, Kentucky. Some of the school bus drivers and aides, desiring union
representation, filed a petition with the Board. On November 6, 2014, the Board conducted an
election at the Respondent's facility.
LEM O
JD─80─17
2
As the employees waited in line to cast their ballots, one of the drivers, Anthony Williams,
enthusiastically urged other employees to vote for the Union. In general, Williams' statements'
statements advocating the Union constituted activity protected by the Act. However, I must
decide whether Williams also made threatening statements outside the Act's protection.
Although Williams denied making such threats, the Respondent held an honest belief that he did 5
and, based on that belief, discharged him.
As discussed in the initial decision and the Board's remand order, a stark credibility
conflict must be resolved. Two employees testified that, while waiting in line to vote in the
BoardBconducted election, they heard Williams make a remark about hanging them if the Union 10
did not win the election.
School bus driver Terrie Nolan testified that Williams said "if you do not vote yes, I'm
going to hang B 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 Street1 and like you all did to us back in the '60s." 15
Another school bus driver, Janice Schwenz, described hearing Williams tell some of those waiting
to vote that when the election was over, it was "going to be like Burger King and have it our way."
Then, according to Schwenz, someone asked Williams "what if it doesn't go your way?"
Schwenz testified that Williams answered, "well, 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."20
Although Nolen and Schwenz testified that they heard Williams make the alleged threat, 3
other witnesses, whom I believed to have been within earshot at that time, did not hear it.
Uncontradicted evidence established that Williams had an outgoing personality and spoke loudly.
Therefore, I reasoned that if Williams indeed had made the statement which Nolen and Schwenz 25
attributed to him, the other 3 witnesses would have heard it. Their testimony that they did not
hear it led me to conclude that Williams had not made the threat.
The Board remanded the case with instructions to perform further factual and legal
analysis. Among other matters, the Board directed me to evaluate and explain my conclusion that 30
these 3 witnesses were "within earshot."
Factual Analysis
Were Fenwick, Poston and Dotson Within Earshot?35
In performing this analysis, I will focus first on each of the 3 witnesses who testified that

1 The words "like they did over on Litwin Street" refer to a Halloween lawn display depicting a lynching. No
one has claimed, and the record does not suggest, that any employee or official of the Respondent had
anything to do with this display. Likewise, there is no suggestion or evidence that anyone associated with
the Union bore responsibility for this display. However, its hateful and public nature had attracted news
coverage, which in turn made the display a topic of conversation.
JD─80─17
3
they did not hear the statements about hanging which Nolen and Schwenz attributed to Williams.
These witnesses were Sandra Fenwick, Mary Jane Dotson, and Beate Poston. All 3 were eligible
voters in the November 6, 2014 election.
The voting took place in a building, the bus barn, which had a large garage area sometimes 5
called the bay, where mechanics could work on the buses. A smaller break room adjoined the
garage area. The employees cast their ballots in this break room, but it wasn't large enough to
hold all the voters, so they lined up in the garage area.
On November 6, 2014, when Fenwick returned from her first run2 and clocked out, which 10
is the standard procedure, she saw that other employees already were lining up to vote in the
representation election. Not wishing to wait in line a long time, she sat down at a table. Also
sitting at this table were Williams and two other individuals. The 4 of them talked and joked.
At one point, Williams suggested that they get in line to vote. Fenwick told him she did 15
not want to stand in line but preferred to wait a while at the table. She did wait there about 10
minutes.
From Fenwick's testimony, it is not clear whether Williams stayed at the table with
Fenwick or else got in the line to vote. However, it would appear more likely that he stayed at the 20
table with Fenwick and the others until Fenwick got up to join the line. Thus, Fenwick testified
that when she did get in line, the only people near her were Williams and the other 2 individuals
with whom she had been sitting at the table. She further testified that Williams was standing
behind her in the line. Presumably, Williams would have been ahead of her in line if he had left
the table earlier.25
Additionally, Fenwick's testimony suggests that Williams did remain within earshot:
Q. Is Anthony a loud person?
A. Yes.30
Q. Were there times when he wasn't standing right near you?
A. Not when I -- not as long as I was in the bay, he wasn't.
Beate Poston was another of the 3 witnesses who testified that she did not hear Williams 35
make the offensive remarks. However, her testimony differs significantly from Fenwick's.
Poston testified that Williams went up and down the line of voters, showing them his cellphone,
which displayed a proBUnion message on its screen. According to Poston, at one point Williams
went up and down the line handing out pens bearing the name of the Union.
40

2 Each workday, Fenwick was on a school bus for 3 runs. She drove the bus one of those 3 runs and served as
an aide on the other two.
JD─80─17
4
Poston's description of a highly ambulatory Williams does not accord with Fenwick's
testimony that Williams was near her throughout the time she was in the bay area, which would
indicate that Williams simply stood in line. Additionally, adding to the puzzle, Fenwick testified
that she did not recall Poston being present on this occasion.
5
However, Poston did recall waiting in line to vote and becoming annoyed at Williams'
efforts to persuade people to vote for the Union. Poston described Williams as "always on the
loud side" but she did not hear everything Williams said as he walked up and down the line. She
did notice that some people waiting in line appeared to be annoyed by Williams.
10
At times while Poston was standing in line, she was near Schwenz and therefore could
have heard anything Williams said to Schwenz. However, her testimony indicates that she was
not near Schwenz for the entire time she waited in line.
Q. Did you hear [Williams] say anything to Janice [Schwenz] who was right in front 15
of you?
A. No.
Q. You didn't hear anything?
A. I didn't hear.20
Q. But she was right in front of you, correct?
A. She was in front of me by the time we stepped up to vote, because there was an
issue. She got conflicting messages from one of the ladies that took -- marked the
names off, and one of the union ladies, and she was trying to clarify. And that's 25
kind of what I remember. That's what I remember or when I remember her being in
front of me.
Q. When you first got in line, do you remember her being in front of you when it was
near the back of the line?30
A. I couldn't swear to it.
Moreover, Poston did not remain in line the entire time. Poston testified that she became so
annoyed at Williams' conduct that she left the line to complain about it.
35
Q. Did you bring your concerns about the election to the attention of anybody at
Taylor Motors?
A. Well, at one point I left the line because I was so upset with Anthony [Williams]
getting in everybody's face. And I didn't want to say anything out there, so, I
stepped into the office and I just -- it's just not right, you know, everything that's 40
going on. We're just supposed to be able to stand in line, give our vote, and be
done.
JD─80─17
5
In sum, Poston was not within earshot of Williams the entire time that he tried to persuade
those waiting in line to vote for the Union.
The third witness who did not hear Williams make any statement about hanging was Mary
Jane Dotson. She testified that Williams spoke to many different people and that she did not hear 5
everything that he said. Based on this further review of the testimony of the 3 witnesses, I
conclude that I erred in assuming that all 3 were within earshot of Williams at all times while the
employees were lined up to vote.
Credibility Analysis10
Although the record does not establish that Fenwick, Poston and Dotson were present at all
times, the crucial question concerns whether they were present at the time Williams allegedly
made the offensive statement. That fact must be determined from the testimony of Nolen and
Schwenz, the only two witnesses who testified that they heard Williams make the statement.15
Nolen testified that Mary Dotson and Bea Poston were present when she heard Williams
make the offensive statement:
Q. Based on what you've already testified to, Janice and Mary and Bea Poston were 20
all near you as well, correct?
A. Yes.
Q. When Anthony made this threat, did he specifically say it directed at you?
A. He was looking at me.25
Q. Did he point at you in any way?
A. He was looking at me.
Q. But he didn't point or anything?30
A. No, but he was looking at me.
Q. Okay. But he was looking at you.
A. Yeah.
35
Q. When he said this, was he still being loud?
A. Yes.
Q. Did you say anything in response to Anthony making this threat?
A. I told him it wasn't very funny.40
Q. Did he say anything in response to that?
A. He laughed.
JD─80─17
6
Q. Did you make any comment about this statement to the other people you were in
line next to?
A. I just looked at them, and they looked at me.3
5
Q. You looked at the people who were near you, Janice, Bea, and Mary.
A. Yes.
Q. And they just looked back at you?
A. Yes.10
Q. Did you hear them say anything to Anthony?
A. No.
From context, it appears clear that "Janice" referred to Janice Schwenz, "Bea" referred to 15
Beate Poston and "Mary" referred to Mary Dotson. In Nolen's account, Poston and Dotson not
only were present but reacted to Williams' statement by exchanging glances. Yet neither Poston
nor Dotson corroborated Nolen's testimony about what Williams said.
Schwenz' testimony indicates that she was standing in line near Nolen, Poston and Dotson. 20
Therefore, it accords with Nolen's testimony regarding who was present. However, it contradicts
Nolen concerning who reacted to the statement. Nolen's testimony, quoted above, indicates that
after Williams made a statement about taking a rope and hanging them, Nolen was the only person
present who replied to Williams. However, Schwenz' version does not cast Nolen in the role of
responder.25
Schwenz testified that Williams made the offensive statement in the presence of Poston
and that Poston (not Nolen) was the person who said something in response. According to
Schwenz, Poston reacted to Williams' statement by asking him to leave.4 Poston's testimony
confirms that she was standing in line behind Schwenz, but she denied hearing Williams make any 30
statement about hanging.
Although Nolen and Schwenz do not agree on whether Poston replied to Williams'
statement, they both testified that she was present when he made it. Poston clearly was near
enough to hear Williams. Her failure to corroborate Nolen and Schwenz weighs particularly 35
heavily because Williams' exuberant conduct had irritated her greatly. Indeed, Williams had

3 In the remand order, the Board specifically directed that I discuss this testimony about an exchange of
glances.
4 The Board's remand order specifically directed me to address this matter. It stated, in part, "the judge noted
that although Schwenz testified that Poston responded to Williams by asking him to leave, Poston testified
that she did not hear Williams' statement." Schwenz testified on the first day of the hearing. Poston
testified on the second day. Thus, Poston would have had an opportunity to deny asking Williams to leave
but neither attorney questioned her about it. Presumably, in view of Poston's denial that she heard Williams
make the statement in question, she would have denied reacting to it.
JD─80─17
7
annoyed Poston so much that she left her place in line and went to the manager's office to
complain. Poston testified:
Q. Did you bring your concerns about the election to the attention of anybody at
Taylor Motors?5
A. Well, at one point I left the line because I was so upset with Anthony getting in
everybody's face. And I didn't want to say anything out there, so, I stepped into
the office and I just -- it's just not right, you know, everything that's going on. We're
just supposed to be able to stand in line, give our vote, and be done.
10
Considering that Poston was so upset about Williams that she left the line to complain, she
almost certainly would have included in her complaint Williams' hanging statement had she heard
it. Her testimony to the contrary directly and inescapably conflicts with that of Schwenz.
Yet, according to Schwenz, not only did Poston hear the statement, she also reacted to it. 15
Schwenz testified:
Q. When Anthony made the statement that you heard, that you wrote about, did
anybody that you were near make any response back to it?
A. When he made that statement about what would happen?20
Q. Um-hum.
A. One of the girls told him that she thought it would be best if he just got away from
us and got in line somewhere himself.
25
Q. Who was that?
A. Bea.5
Q. When Anthony made this statement that you wrote about, the Litwin Street
incident, did -- other than Bea telling him to move on, did anybody else that you 30
were around say anything to Anthony?
A. Not that I know of.
Q. I just want to make sure. You heard Bea tell him to just --
A. Yes.35
Q. Again, in your own words, what did you -
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.40

5 From the record, it appears clear that "Bea" is Beate Poston.
JD─80─17
8
Schwenz' description of what Poston told Williams is quite specific, yet Poston did not
corroborate it. Could that failure to corroborate be the result of an intentional forgetfulness, of a
deliberate decision not to remember? That seems highly unlikely. The record does not suggest
that Poston had any motive to avoid telling the truth. Poston had complained to management
about Williams' conduct during the election and had nothing to gain by testifying in Williams' 5
favor. She remained an employee of the Respondent at the time of the hearing, and testimony
that Williams had made the offensive statement would have been in the Respondent's favor.
Likewise, Mary Jane Dotson remained employed by the Respondent at the time she
testified. If she had testified that Williams had made the offensive statement attributed to him by 10
Nolen and Schwenz, it would have aided the Respondent's case. Yet, although both Nolen and
Schwenz testified that Poston and Dotson were present when Williams made the statement,
neither Poston nor Dotson corroborated it.
The testimony of Nolen and Schwenz does not evenly balance that of Poston and Dotson. 15
Nolen and Schwenz disagree about who replied to Williams' statement and this conflict in the
evidence diminishes, to some extent, my confidence in the reliability of their testimony.
Therefore, even apart from Williams' denial that he made the statement, the scales tip against
finding that he did.
20
Moreover, I credit Williams' testimony that he did not make the statement attributed to
him. Although the inconsistency between the testimony of Nolen and Schwenz lessens the
credence I place in it, the apparent reliability of Williams' testimony remains undiminished.
Crediting Williams, I find that he did not make the offensive hanging statement which Nolen and
Schwenz attributed to him.25
Legal Analysis
Although the initial decision described the correct procedure to use in examining the facts,
I then made a mistake in following it. My error involved assuming that a failure to prove that 30
Williams made the offensive statement was the same thing as proving that he did not make the
statement. The difference may be illustrated by imagining the scales of justice, with the left pan
marked "Did" and the right pan marked "Did Not."
If the evidence in the "Did" pan weighs exactly the same as that in the "Did Not" pan, the 35
scales are balanced and neither pan is lower than the other. If the evidence in the "Did" pan
weighs a tiny bit more than the evidence in the "Did Not" pan, the "Did" pan goes down and the
"Did Not" pan goes up. That signifies that "Did" has been proven by a preponderance of the
evidence. Likewise, if evidence in the "Did Not" pan weighs slightly more than evidence in the
"Did" pan, the "Did Not" pan goes down and "Did Not" has been proven by a preponderance of the 40
evidence.
JD─80─17
9
When one side of the scale goes down, the other side goes up, leading me to assume,
incorrectly, that a failure to prove "Did" proves "Did Not." However, that is not the case when
the scales are evenly balanced, with neither side higher or lower than the other. In that case, a
preponderance of the evidence does not prove "Did," but a preponderance of the evidence also
does not prove "Did Not." In the initial decision, I had found the scales about evenly balanced, 5
with evidence that Williams did make the offensive statement weighing about the same as the
evidence that he did not.
Because the Respondent discharged Williams for engaging in misconduct, and because
this asserted misconduct took place in the course of activity protected by the Act, I followed the 10
analytical process set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964) and its progeny.
Analyzing the evidence, I concluded that Williams was engaged in protected activity when, on the
day of the election, he tried to persuade fellow employees to vote for the Union. Additionally, I
found that when the Respondent decided to discharge Williams, it held an honest belief that
Williams had engaged in misconduct B making the offensive statement about hanging people -15
during the course of that protected activity. Up to this point, my analysis was uneventful, but at
the next step I erred.
Under the Burnup & Sims framework, once an employer has shown that it acted with an
honest belief that the discharged employee had engaged in misconduct, the burden shifts to the 20
General Counsel to show that the employee did not, in fact, engage in the asserted misconduct.
Pepsi-Cola Co., 330 NLRB 474 (2000). My weighing of the evidence had led me to conclude
that preponderance did not prove that Williams had engaged in the asserted misconduct. Then, I
mistakenly assumed that this failure to prove misconduct equaled proof that the asserted
misconduct had not, in fact, occurred. However, when the scales are evenly balanced, a failure to 25
prove "Did" falls short of proving "Did Not."
This flawed logic led me to conclude that the government had met its burden. As
discussed above, the Board's remand order directed me to perform a fresh factual analysis which
included discussion of certain specified issues. This fresh analysis did not rest on the erroneous 30
premise that a failure to prove "Did" equals proof of "Did Not." Rather, the additional
examination of the evidence led me to discredit the testimony, by Nolen and Schwenz, that
Williams had made the "hanging" statement. It also led me to credit Williams' denial.
Based on these credibility determinations, I further conclude that the General Counsel has 35
proven that the asserted misconduct did not, in fact, occur. Accordingly, I recommend that the
Board find that by discharging Williams, the Respondent violated Section 8(a)(3) and (1) of the
Act.
Should the Board disagree with my conclusion that the General Counsel has proven that 40
the misconduct did not occur, one further matter should be addressed. When the evidence
establishes that misconduct has taken place, the Board must then decide whether the misconduct
was so opprobrious that it forfeited the protection of the Act. The initial decision expressed the
JD─80─17
10
opinion that, even if Williams had made the offensive statement, that misconduct was not
sufficiently opprobrious to deprive him of the Act's protection.6
In weighing the opprobriousness of the statements which Schwenz and Nolen attributed to
Williams, I apply the Board's longstanding objective standard. In Gem Urethane Corp., 284 5
NLRB 1349, 1353 (1987), the Board, citing Clear Pine Mouldings, 268 NLRB 1044 (1984), noted
that, in considering a statement made by one employee to another, it had adopted the objective test
formulated by the Court of Appeals for the Third Circuit in NLRB v. W. C. McQualde, Inc., 552
F.2d 519 (1977). There, the court stated that an employer need not "countenance conduct
amounting to intimidation and threats of bodily harm." The criterion was whether the 10
misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or
intimidate employees in the exercise of rights protected under the Act. NLRB v. W. C. McQualde,
Inc., 552 F.2d at 528, quoting Operating Engineers Local 542 v. NLRB, 328 F.2d 850, 852-853
(3d Cir. 1964), cert. denied 379 U.S. 826.
15
This objective test focuses on whether a listener reasonably would feel threatened by the
words spoken. In making this determination, it is important to sort out other emotions which the
particular statement may have elicited. The remarks attributed to Williams allude to a Halloween
display on the front yard of someone totally unconnected to this case. The display depicted a
lynching of people with black faces. Such an ugly display refers to a hateful period in history and 20
therefore evokes strong feelings of repugnance, but these emotions are not necessarily the same as
intimidation or a fear of violence. The test is not whether a reasonable person would feel
offended by a reference to this display but whether a reasonable person, under the totality of
circumstances, would feel intimidated or afraid.
25
One other confounding factor could make application of the objective test more
challenging and, because of this possibility, it needs to be discussed. Racial prejudice can exist
not only at a conscious level but also at an unconscious level, where it can add an undetected bias.
A judge always should guard against such bias but it is particularly important to do so here
because the words attributed to Williams concern race.30
At one time in certain parts of the country, the dominant social norms included an
expectation that people of color should act in a deferential manner when speaking to white people.
That expectation of deference was particularly strong when a black man was addressing a white
woman. The present case concerns such a situation. If that old prejudice survives somewhere 35
out of sight in the unconscious mind, it could cause a disproportionate reaction to the words
attributed to Williams. A reaction to the perceived temerity of the speaker could improperly
affect a decision concerning what message the words reasonably would communicate. In
applying the Board's objective test, I posit a hypothetical reasonable person whose perception and

6 It may be noted that the initial decision did not call the words attributed to Williams "unobjectionable."
Nothing written in that decision or here should be read to suggest condonation of those words. However, the
issue does not concern whether these words were good or bad but rather how bad.
JD─80─17
11
understanding are not distorted by such a prejudice.
The Board's objective standard requires considering the totality of circumstances. Those
circumstances certainly include the speaker's demeanor. The same words can convey entirely
different messages depending on whether the speaker is smiling or glaring. It was proper to take 5
into account Williams' happy demeanor in determining how a reasonable person would interpret
the words attributed to him. A reasonable person, seeing his jovial mood, would regard the words
as attempted humor, not attempted intimidation.
It is true that if a manager says something to a worker which communicates a threat of 10
reprisal for protected activity, the manager cannot get off the hook by saying, "I was just joking."
The employee knows that the manager is in a position of authority and has the power to carry out
such a threat. That ability affects the import of the manager's words.
Additionally, employers discharge employees all the time, which increases the likelihood 15
that an employee would take a threat of termination seriously. However, hangings are rare.
Moreover, nothing in the record suggests that Williams had either the ability or the intention to
hang anyone.
Considering the totality of circumstances, I would conclude that the words attributed to 20
Williams would not communicate to a reasonable person any threat or be regarded as an attempt to
intimidate. Rather, they would be viewed as a failed attempt at humor.7 However, I need not
reach this issue because, crediting Williams' denial and discrediting the testimony of Schwenz and
Nolen to the contrary, I find that Williams did not, in fact, speak these words.
25
Having concluded that the General Counsel has proven that the asserted misconduct did
not, in fact, occur, notwithstanding the Respondent's honest belief that it did, I recommend that the
Board find that by suspending and discharging Williams, the Respondent violated Section 8(a)(3)
and (1) of the Act.
30
The Representation Election
The Board also directed me to consider "whether the 2015 election should be set aside. In
reaching this determination, the judge should consider the Respondent's suspension and discharge
of Williams B should he again find that these actions were unlawful B in addition to the 35
Respondent's maintenance of the Agreement, which the judge found violated Section 8(a)(1) of
the Act."

7 In reaching this conclusion that the words attributed to Williams reasonably would be regarded as attempted
humor rather than threat, I am not relying on Nolen's testimony that, in response to those words, she "told him
it wasn't very funny." For the reasons discussed above, I do not credit Nolen's testimony that Williams
made the "hanging" statement, and likewise do not credit the testimony regarding her reply to it.
JD─80─17
12
On December 8, 2014, the Respondent and the Union entered into a stipulation, approved
by the Regional Director, to set aside the November 6, 2014 election and to conduct a new one.
That election took place on January 15, 2015. The tally of ballots, prepared immediately after
this election, showed that of about 67 eligible voters, 28 cast ballots for the Union and 33 against.
Three voters cast challenged ballots, which were too few to be determinative.5
For the reasons discussed above, I have concluded that Respondent's discharge of
Williams violated the Act. This termination of employment related directly to Williams' activity
on November 6, 2014 before and during the representation election. Respondent has not
remedied this unfair labor practice. Respondent's discharge of Williams was effective November 10
7, 2014, which was slightly more than 2 months before the second election. The coercive effect
of the unremedied unfair labor practice persisted during this period.
Additionally, for the reasons stated in the initial decision, I have found that the Respondent
unlawfully required employees to sign a confidentiality agreement prohibiting them from 15
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, the
prohibition on disclosing "conversations between any persons associated with the company"
would limit their ability to speak with Union representatives, and with each other, concerning 20
what transpired at work. It therefore also would prevent them from bringing problems to the
Union's attention and discussing with Union representatives what the Union would do to remedy
the problems if it became the employees' bargaining representative.
This prohibition chilled discussions about terms and conditions of employment and 25
thereby destroyed the laboratory conditions necessary for a fair and uncoerced election.
Moreover, the January 15, 2015 election was quite close. If only a few employees had changed
their votes, it could have affected the outcome.
The violative conduct is not so minimal or isolated that it would be possible to conclude 30
that it did not affect the election. Accordingly, I find that these violations of the Act require that
the election be set aside. IRIS U.S.A., Inc., 336 NLRB 1013 (2001).
In sum, I find merit to the Union's objections n recommend that the Board set aside the
January 15, 2015 election.35
Summary
To summarize, for the reasons discussed above, I have credited Williams' denial,
discredited the testimony of Nolen and Schwenz to the contrary, and found that Williams did not 40
make the "hanging" statement which Nolen and Schwenz attributed to him. Therefore, I have
concluded that the General Counsel has proven that the claimed misconduct did not occur,
notwithstanding the Respondent's honest belief that it had. Accordingly, I also have concluded that
JD─80─17
13
the Respondent's suspension and discharge of Williams violated Section 8(a)(3) and (1) of the Act.
Further, for the reasons stated in the initial decision, I have found that the Respondent
violated the Act by requiring employees to sign a confidentiality agreement which interfered with
their Section 7 right to discuss their terms and conditions of employment.85
Additionally, I have concluded that the Respondent's unfair labor practices warrant setting
aside the January 15, 2015 election, and recommend that the Board do so.
Conclusions of Law10
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 15
2022, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
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 20
they could not engage in certain activities, such as the discussion of wages and working
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 25
Complaint.
On these findings of fact and conclusions of law and on the entire record in this case, I
issue the following recommended9
30
ORDER
The Respondent, Taylor Motors, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:35

8 The Board has directed that I include a recommended order in this supplemental decision. That order also
addresses findings in the initial decision which are not before me on remand, notably, the finding that the
Respondent unlawfully interrogated employees concerning their protected activities. Because the
recommended order includes a remedy for this unlawful interrogation, I also have included a reference to it in
the conclusions of law.
9 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─80─17
14
(a) Interrogating employees about their union activities or sympathies or those
of other employees.
(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 5
engage in other activities protected by the National Labor Relations Act.
(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.10
(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 15
refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
20
(a) Rescind its confidentiality/nondisclosure agreement and provide each
employee who received and/or signed this agreement a written notification that the agreement has
been rescinded.
(b) Within 14 days of this Order, offer Anthony Williams immediate and full 25
reinstatement to his former job, of, if that position is no longer available, to a substantially
equivalent position.
(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 30
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).
(d) Compensate Anthony Williams for any adverse tax consequences of
receiving a lump-sum backpay award, and file a report with the Social Security Administration 35
allocating the backpay award to the appropriate calendar quarters.
(e) 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 40
not be used against him in any way.
JD─80─17
15
(f) Within 14 days after service by the Region, post at its facilities at Fort
Campbell, Kentucky, copies of the Notice to Employees attached as "Appendix A" to the July 14,
2015 initial administrative law judge's decision in this matter.10 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 5
maintained for 60 consecutive days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other material. In addition to physical
posting of paper notices, notices shall be distributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if the Respondent customarily 10
communicates with its employees by such means. J. Picini Flooring, 356 NLRB 11 (2010). In
the event that, during the pendency of these proceedings, the Respondent has gone out of business
or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since August 22, 2014. Excel Container, Inc., 325 NLRB 17 (1997). 15
(g) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Regional Director
attesting to the steps that the Respondent has taken to comply.
20
Dated, Washington, D.C. September 29, 2017
Keltner W. Locke25
Administrative Law Judge

10 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.
7(,/,-- 0 L.-&-_
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)518-7517.