Taylor Motors, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 2017

365 NLRB No. 21 (N.L.R.B. 2017)

365 NLRB No. 21
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Taylor Motors, Inc. and American Federation of
Government Employees (AFGE), AFL–CIO,
Local 2022. Cases 10–CA–141565, 10–CA–
141578, 10–CA–145467, and 10–RC–137728
March 13, 2017
DECISION AND ORDER REMANDING
PROCEEDING
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On July 14, 2015, Administrative Law Judge Keltner
W. Locke issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order Remanding.
The Board conducted an election in a unit of the Re-
spondent’s employees on November 6, 2014. Thereafter,
the parties agreed to set aside this election, and a second
election was held on January 15, 2015. The judge found
that the Respondent violated Section 8(a)(1) of the Act
by suspending employee Anthony Williams on Novem-
ber 7, 2014, and discharging him on November 13, 2014,
for protected conduct Williams engaged in on the day of
the 2014 election. The judge further found that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing a mandatory confidentiality/nondisclosure agreement
(the “Agreement”), which required employees to keep
confidential certain types of information, including
“[c]ompensation data,” “personnel/payroll records,” and
“conversations between any persons associated with the
company.” The judge recommended setting aside the
2015 election on the basis that these unfair labor practic-
es occurred during the critical period.
The Respondent argues that it lawfully suspended and
discharged Williams because he made racially charged
comments to employees and threatened them with physi-
cal violence on the day of the 2014 election. As dis-

1 There are no exceptions to the judge’s dismissal of complaint alle-
gations that the Respondent violated Sec. 8(a)(1) by (1) interrogating
employees Larry Cruthis and Sandra Fenwick on separate occasions on
August 22, 2014, Cruthis on August 25, employee Anthony Williams
on October 21, and Cruthis on October 22; (2) giving employees the
impression that their union activities were under surveillance on August
22 and 25; and (3) instructing Cruthis not to pass out union authoriza-
tion cards on October 22.
cussed below, because the judge failed to make a proper-
ly reviewable determination as to whether Williams in
fact engaged in the misconduct, we remand this case for
further proceedings consistent with this decision.
As more fully recounted in the judge’s decision, Wil-
liams attempted to persuade his coworkers to vote for the
Union on the day of the 2014 election. On the basis of
employee complaints, the Respondent suspended and
ultimately discharged him for alleged misconduct that he
engaged in during the course of his electioneering activi-
ty. More specifically, according to the written complaint
of employee Janice Schwenz, Williams “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.”2 Similarly, employee Terri
Nolen stated that “Williams was threatening people that
if they left before they voted yes he was going to come
after them,”3 and that “y’all had better vote yes if y’all
don’t I will put a rope around your neck and hang y’all
from a tree like they did on Litwin St. for the Halloween
joke and the way y’all did us back in the 60’s.”4
For his part, Williams denied making the “hanging”
statement or ever trying to stop people from leaving.
Employees Beate Poston, Mary Dotson, and Sandra
Fenwick testified that they did not hear such a statement.
Williams, Poston, and Dotson, like Schwenz and Nolen,
submitted to the Respondent written statements recount-
ing what they witnessed that day.
The judge resolved the evidentiary conflict by finding
that Williams did not make the statements attributed to
him. As a result, he concluded that the Respondent vio-
lated the Act by suspending and discharging Williams.
We have decided to remand this case based on the
judge’s confusing resolution of this key factual issue,
which depends in part on credibility determinations, in

2 Unit employees were aware that a Halloween display depicting the
hanging in effigy of an African-American family had been erected, one
week prior to the election, in front of a residence on Litwin Street in
Fort Campbell, Kentucky.
3 The language quoted above is from Nolen’s written complaint.
Nolen similarly testified that Williams said “you cannot leave, you
cannot leave, because if you leave I’m going to get you.”
4 Two other instances of Williams’ alleged misconduct during the
2014 election are no longer at issue in this proceeding. First, the record
reveals that the Respondent did not rely on the complaints of employ-
ees Beate Poston, Mary Dotson, and Karla Livingston that Williams
harassed them by showing them his cellphone screen, which displayed
the message “Union” followed by a check mark and the word “Yes.”
Second, Dotson asserted that Williams told a bus aide who had indicat-
ed an intention to leave without voting that he would block the drive-
way so the aide could not get out. The judge found that any such
statement would not reasonably be considered intimidating in the ab-
sence of any evidence that Williams actually tried to block the drive-
way. There are no exceptions to this finding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
addition to his inconsistent application of the legal stand-
ard.5
As the judge correctly stated, the applicable standard
for determining whether Williams’ suspension and dis-
charge were unlawful is that set forth in NLRB v. Burnup
& Sims, 379 U.S. 21 (1964).6 The Court there explained
that
[Section] 8(a)(1) is violated if it is shown that the dis-
charged employee was at the time engaged in a protect-
ed activity, that the employer knew it was such, that the
basis of the discharge was an alleged act of misconduct
in the course of that activity, and that the employee was
not, in fact, guilty of that misconduct.
Id. at 23. Under Burnup & Sims, the employer has the bur-
den of showing that it held an honest belief that the dis-
charged employee engaged in misconduct. If the employer
meets its burden, the burden shifts to the General Counsel to
show that the employee did not, in fact, engage in the as-
serted misconduct. See Pepsi-Cola Co., 330 NLRB 474,
474 (2000).
Applying the framework articulated in Burnup & Sims,
we agree with the judge that Williams was engaged in
protected activity when he attempted to persuade his
coworkers to vote for the Union on the day of the 2014
election. There are no exceptions to the judge’s finding
that the Respondent met its burden of showing that it
honestly believed Williams had engaged in misconduct
in the course of that activity. Therefore, the burden
shifted to the General Counsel to show that Williams did
not, in fact, engage in the asserted misconduct. Because
the legality of the Respondent’s actions turn on whether
the General Counsel met his burden, we discuss in detail
the judge’s determination that Williams did not, in fact,
threaten to hang his coworkers if they did not vote for the
Union.

5 Because we have decided to remand the question whether Williams
uttered the statements attributed to him, we find it unnecessary to pass
at this time on the judge’s alternative finding that the alleged state-
ments, if made, would not constitute serious threats or intimidation.
6 Contrary to the Respondent’s contention, Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 445 U.S.
989 (1982), is inapplicable to cases like this one, where the employer
has discharged the employee because of alleged misconduct in the
course of protected activity. See La-Z-Boy Midwest, 340 NLRB 80, 80
(2003), enfd. in relevant part 390 F.3d 1054 (8th Cir. 2004); Shamrock
Foods Co., 337 NLRB 915, 915 (2002), enfd. 346 F.3d 1130 (D.C. Cir.
2003). The judge cited the Board’s decision in Fresenius USA Mfg.,
358 NLRB 1261, 1264 fn. 7 (2012), in support of this principle, but
properly recognized that that decision was not precedential in light of
the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct.
2550 (2014). We note that subsequently, the Board modified its deci-
sion in Fresenius. See 362 NLRB No. 130 (2015).
The judge began his discussion of the issue by summa-
rizing the relevant evidence: (1) two employees,
Schwenz and Nolen, heard Williams make the “hanging”
statement; (2) Williams denied making the statement;
and (3) three employees—Poston, Dotson, and Fen-
wick—testified that they did not hear such a statement.
Weighing the conflicting evidence, the judge expressly
disavowed reliance on demeanor: “All the witnesses ap-
peared to be telling the truth.” Thus, on the one hand,
the judge explained that Schwenz’ testimony was “simi-
lar enough to corroborate Nolen’s testimony but not so
similar as to suggest collusion.” On the other hand, the
judge found that Poston and Dotson would have been
unlikely to forget the disputed statement, as they both
complained to the Respondent about other statements
Williams made during the election.
Ultimately, the judge found that Williams did not
make the statement, reasoning that three witnesses—
Poston, Dotson, and Fenwick—were in range of Wil-
liams’ loud voice, and two of them filed complaints
against Williams, yet they testified that they did not hear
the provocative “hanging” statement.7
If this is where the judge’s analysis ended, it may well
have been appropriate for us to weigh the evidence and
resolve the issue without need to remand. However, later
in his decision, the judge expressly cast doubt on his own
resolution of the issue. One paragraph after purportedly
resolving the issue, he stated that he “might well be
wrong.” Several pages later, he noted that “some doubt
persists,” before affirming his initial determination that
Williams did not threaten his coworkers.8 By these
statements, the judge “employed a most equivocal proce-
dure for resolving the conflicting testimony regarding
what actually happened.” Roto Rooter, 283 NLRB 771,
773 (1987) (remanding where the judge “undercut his
own analysis” by, inter alia, failing to make a clear cred-

7 Other evidence, some of which the judge failed to adequately dis-
cuss, also apparently contributed to his credibility determination. On
remand, the judge should expressly weigh this evidence, in addition to
all other relevant record evidence.
For example, 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. Similarly, though not noted
by the judge, Nolen testified that Poston, Dotson, and Schwenz ex-
changed a “look” with her (Nolen) after Williams’ alleged threat, but
Dotson testified that she did not hear the statement. The judge should
address these apparent conflicts in the testimony.
In addition, the judge stated that Poston, Dotson, and Fenwick were
within “earshot” of Williams at all relevant times, and therefore would
have heard the statement had Williams made it. The judge should
evaluate and explain the evidentiary support for his determination.
8 Based on these statements in particular, we disagree with our dis-
senting colleague that the judge “made clear findings on all pertinent
issues.”
TAYLOR MOTORS, INC. 3
ibility determination), opinion after remand 288 NLRB
1025 (1988).
Compounding the difficulty of our review, the judge at
times made statements that appear at odds with the
Burnup & Sims burden-shifting framework. Certainly,
the judge initially articulated the standard correctly, stat-
ing “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.” And his ultimate conclusion—that the “govern-
ment has carried this burden”—also reflects a correct
understanding of the law. However, in the course of his
analysis, the judge stated: “I cannot conclude that the
evidence makes it ‘more likely than not’ that Williams
made the ‘hanging’ statement;” “a preponderance of the
evidence does not establish that Williams made any
statement about hanging people;” and, “the entire record
did not persuade me that it was more likely than not that
Williams made the statements attributed to him.” These
statements suggest a misunderstanding of which party
bore the burden of proof here. As we have explained,
under the circumstances, the General Counsel had the
burden of proving that Williams did not make the state-
ment attributed to him.
The judge similarly erred by stating that the General
Counsel met his burden because the testimony of
Schwenz and Nolen that Williams made the disputed
statement was not further corroborated by other witness-
es, i.e., by Poston, Dotson, and Fenwick. As explained,
it was not the Respondent’s burden to prove that Wil-
liams made the statement; it was the General Counsel’s
burden to prove the contrary. Thus, the absence of addi-
tional evidence that Williams did make the disputed
statement does not help the General Counsel’s case.
In view of the judge’s confusing discussion of the cru-
cial credibility issue, together with his inconsistent appli-
cation of the Burnup & Sims framework, we are unable
adequately to evaluate whether, on the present record, the
General Counsel carried his burden of showing that Wil-
liams did not make the statement attributed to him. In
Pepsi-Cola Co., 330 NLRB 474, cited above, the Board
considered a similarly inadequate Burnup & Sims analy-
sis. The judge in Pepsi-Cola, like the judge in this pro-
ceeding, made contradictory statements about key testi-
mony. As a result, the Board found that the judge failed
to clearly determine whether each party met its bur-
den. For example, in analyzing the employer’s burden,
the judge found that a manager honestly believed that he
overheard the alleged discriminatee engage in miscon-
duct, but in the very next sentence said he was not per-
suaded that a “reasonable person could have been all that
certain.” Id. at 475. In view of these “contradictory
statements,” the Board stated that it was “uncertain” as to
whether the judge found that the employer met its bur-
den. Id. And in discussing the General Counsel’s bur-
den, the judge found that the alleged discriminatee’s tes-
timony raised insufficient purported discrepancies “to
conclude that the opposite of [his] testimony must be
true.” Id. (emphasis in Board decision). According to
the Board, the judge failed to make a specific credibility
finding concerning the alleged discriminatee’s testimony.
The Board concluded that the judge’s decision did not
contain the proper findings and analysis under the
Burnup & Sims test, and thus remanded the proceeding.9
Like the Board in Pepsi-Cola, we find it necessary to
remand to the judge for further findings and analysis.
See also, e.g., Roto Rooter, 283 NLRB at 773 (remand-
ing because the judge’s “avoidance of a clear credibility
resolution deprives us of the necessary factual basis to
determine whether any misconduct occurred,” and be-
cause the judge failed to apply the legal test appropriate-
ly).10
Our dissenting colleague contends that the relevant ev-
idence and the judge’s erroneous Burnup & Sims analysis
require the Board to conclude, contrary to the judge, that
the suspension and discharge of Williams were lawful.
We disagree. As we have explained, some portions of
the judge’s analysis suggest that he misallocated the bur-
den of proof. However, other portions, such as his (re-
luctant) decision to credit Williams, and his overall con-
clusion that the General Counsel carried his burden, sug-
gest that he made a permissible credibility determination
and correctly applied the Burnup & Sims test. The result
is that we are left wondering which version of the story is
most reliable. In those circumstances, we are not per-
suaded by our colleague’s view that it is appropriate
simply to conclude that the evidence is in equipoise.11

9 The Board noted that the General Counsel failed to call any wit-
nesses to corroborate the alleged discriminatee’s testimony, and ex-
plained that the absence of corroborating witnesses was a factor for the
judge to consider in his determination of whether to credit him. Id. at
475 & fn. 9. The judge in his supplemental decision, which the Board
upheld, discredited the alleged discriminatee’s denial and concluded
that the General Counsel failed to meet his burden, largely because he
called no witness to corroborate the denial. See Pepsi-Cola Co., 333
NLRB 87, 87 & fn. 1, 88 (2001). Here, by contrast, more than one
witness stands on each side of the factual dispute: some witnesses say
they heard Williams make the statement, while others say they did not.
These circumstances make a remand in this case even more advisable.
10 There is no indication in Pepsi-Cola or Roto Rooter that a party
requested that the Board remand the case.
11 This case is distinguishable from Samsung Electronics America,
Inc., 363 NLRB No. 105 (2016). In that case, the judge found that
between the conflicting testimony of an employer and an employee
witness concerning an allegedly unlawful instruction not to discuss the
employee’s lawsuit, neither was clearly more credible than the other
about what was said during the conversation. The judge credited the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Rather, because we find that the judge’s decision does
not permit adequate review, we conclude that a remand is
the most prudent disposition.12
On remand, consistent with our decision, the judge
should take into account all of the relevant record evi-
dence and should make a clear and reasoned determina-
tion of whether the General Counsel carried his burden to
prove that Williams did not make the statement attributed
to him.
We also direct the judge, on remand, to consider
whether the 2015 election should be set aside. In reach-
ing this determination, the judge should consider the Re-
spondent’s suspension and discharge of Williams—
should he again find that these actions were unlawful—in
addition to the Respondent’s maintenance of the Agree-

employee witness based on the judge’s inference that the employer
witness’ subsequent email supported the employee’s version. Discern-
ing no indication that the judge relied on demeanor, the Board found
that the employer’s explanation of the meaning of the email was equal-
ly as persuasive as the meaning inferred by the judge. As a result, the
Board concluded that the evidence was in equipoise, reversed the
judge’s credibility determination, and dismissed the relevant allegation.
Here, the judge’s analysis of the varying accounts of several witnesses
hardly leads to a clear inference as to what actually occurred. We trust
that the judge on remand will provide a clear analysis so we can make a
reasoned determination, which the Board was able to do without need
to remand in Samsung Electronics America.
12 Contrary to the dissent’s suggestion, the documentary evidence in
the record does not establish that Nolen’s and Schwenz’ version of the
events in question is more reliable than that of other employee-
witnesses. Williams, Poston, and Dotson, like Schwenz and Nolen,
also submitted written statements that corroborate their testimony.
Moreover, our dissenting colleague notes that “where credibility
resolutions are not based primarily upon demeanor, it is well settled
that the Board itself may proceed to an independent evaluation of cred-
ibility.” Electrical Workers, Local 38, 221 NLRB 1073, 1074 (1975)
(emphasis added). The Board is not required to undertake an inde-
pendent evaluation of credibility in such circumstances, however. This
is particularly true here where there is evidence from multiple witnesses
to support and contradict that Williams uttered the statement. Attempt-
ing to reconcile all of the conflicting evidence in the first instance,
moreover, would require the Board to draw factual inferences and
conclusions that may or may not be justified, as shown by our col-
league’s attempt to do so. In addition, the judge applied the legal
framework inconsistently and failed to expressly weigh certain evi-
dence. See supra, fn. 7. We therefore find this case more similar to the
cases discussed above than to Samsung Electronics and Universal
Truss, relied on by the dissent. Compare Samsung Electronics Ameri-
ca, Inc., 363 NLRB No. 105, slip op. at 2–3 (2016) (finding that the
employer’s explanation of the meaning of an email was equally as
persuasive as the meaning inferred by the judge, the Board concluded
that the evidence was in equipoise, reversed the judge’s credibility
determination, and dismissed the relevant allegation), and Universal
Truss, Inc., 348 NLRB 733, 737–738 (2006) (deciding not to remand
where the judge failed to resolve a credibility dispute) with Pepsi-Cola
Co., 330 NLRB at 475 (remanding because the judge failed to include
the “appropriate analysis and findings,” which were “necessary” to
determine whether the employer violated the Act), and Roto Rooter,
283 NLRB at 773 (remanding where the judge failed to resolve a credi-
bility dispute and to apply the legal test appropriately).
ment, which the judge found violated Section 8(a)(1) of
the Act.13
ORDER
IT IS ORDERED that this proceeding is remanded to the
Administrative Law Judge for further appropriate action
as set forth above.
IT IS FURTHER ORDERED that the judge shall prepare a
supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-
mended Order. Copies of the supplemental decision
shall be served on all parties, after which the provisions
of Section 102.46 of the Board’s Rules and Regulations
shall be applicable.
Dated, Washington, D.C. March 13, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
ACTING CHAIRMAN MISCIMARRA, dissenting.
Employee Anthony Williams reportedly stated that if
employees did not vote for the Union, he would “put a
rope around your neck and hang y’all from a tree like
they did . . . back in the 60’s.” At the time, the Respond-
ent’s employees were waiting to vote in a Board-
conducted representation election that took place on No-
vember 6, 2014. The Respondent suspended Williams,
thoroughly investigated employees’ complaints about
Williams’ conduct, and discharged Williams after deter-
mining that he made the statement in question. Two dif-
ferent employees reported that Williams made the state-
ment, the judge found that they appeared to be telling the
truth, and it is undisputed that the Respondent reasonably
believed Williams made the offending statement. Never-
theless, the judge concluded that Williams’ suspension
and discharge were unlawful. According to the judge,
because other witnesses did not corroborate that Wil-
liams made the “rope around your neck/hanging” state-
ment, because Williams denied making the statement
(among other threatening statements), and because the

13 The judge found that the Respondent violated Sec. 8(a)(1) of the
Act by interrogating Williams about his union activity on August 22,
2014, before the election petition was filed. The Respondent excepted.
This finding is not part of our remand, and we decline to reach it at this
time.
TAYLOR MOTORS, INC. 5
judge found that “the scales appear about evenly bal-
anced” between Williams’ denial and the contrary testi-
mony of two other witnesses, the Respondent did not
prove that Williams made the “rope around your
neck/hanging” statement. On this basis, the judge found
in favor of the General Counsel’s case.
I agree with my colleagues that the judge’s analysis in
this respect was fundamentally flawed. Thus, the judge
(i) failed to apply the correct legal framework, (ii) im-
properly relieved the General Counsel of his burden of
proving that Williams did not make the statements, and
(iii) erroneously relied on the absence of further corrobo-
ration that Williams made the statements as support for
the General Counsel’s case. Moreover, although my
colleagues do not reach the issue, it is also clear that the
judge erred in dismissing the significance of the state-
ments, opining that they would not justify Williams’ dis-
charge even if made.
The majority addresses these errors by remanding the
case to the judge so that he can try again. I believe that a
remand is unwarranted. Contrary to my colleagues, it is
not the case that, in their words, “the judge’s decision
does not permit adequate review.” Rather, once the cor-
rect legal standard is applied, the judge’s own findings
make clear that the General Counsel has not shown that
Williams’ suspension and discharge were unlawful. A
remand in these circumstances merely offers the General
Counsel a second opportunity to make his case after he
failed the first time. Because there is no justification for
this second bite at the proverbial apple, I respectfully
dissent.
Facts
As noted above, an election was held in the Respond-
ent’s facility on November 6, 2014 (the 2014 election).1
That same day, several employees complained to the
Respondent that Williams harassed and threatened them
as they stood in line to vote in the bus bay.2 Specifically,
employee Janice Schwenz stated that Williams “was say-
ing 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.”3 Similarly, employee

1 All further dates are in 2014 unless otherwise stated. The 2014
election was set aside by agreement of the parties, and a second elec-
tion was held on January 15, 2015. At issue in this case in addition to
the unfair labor practice allegations is whether the 2015 election should
be set aside. Because my colleagues remand the case to the judge, the
resolution of that issue must await another day.
2 The election was held in a break room off a large bus bay. Em-
ployees lined up to vote in the bus bay.
3 There had been widespread publicity in the area about a Halloween
display in front of a residence on Litwin Street depicting effigies of a
black family hanging by ropes from a tree. A photograph of this dis-
play was admitted into evidence as R. Exh. 1.
Terrie Nolen stated that “Williams was threatening peo-
ple that if they left before they voted yes he was going to
come after them” and that “y’all had better vote yes if
y’all don’t I will put a rope around your neck and hang
y’all from a tree like they did on Litwin St. for the Hal-
loween joke and the way y’all did us back in the 60’s.”
Based on the complaints of Schwenz, Nolen, and a dif-
ferent complaint by employee Mary Dotson, the Re-
spondent suspended Williams on November 7.4 After
investigating these complaints and determining they were
valid, the Respondent discharged Williams on November
13 for violating its Rule 4.3, which prohibits discrimina-
tion and harassment in the workplace.
Williams, Schwenz, and Nolen all testified at the hear-
ing. The judge found that “[a]ll the witnesses appeared
to be telling the truth” and that witness demeanor “pro-
vides no assistance here.” The judge also found that
Schwenz’ testimony was “similar enough to corroborate
Nolen’s testimony but not so similar as to suggest collu-
sion.” No party has excepted to these findings.
On the other hand, Williams denied making the state-
ments attributed to him by Schwenz and Nolen. The
judge credited Williams’ denials, but only because the
mutually corroborative testimony of Schwenz and Nolen
was not further corroborated by other witnesses. Specif-
ically, according to the judge, employees Poston and
Dotson and another employee, Sandra Fenwick, “were
within earshot of Williams,” and these three employees
testified they did not hear Williams make the “rope
around your neck/hanging” statement. For this reason,
the judge determined that he could not conclude “it was
more likely than not” that Williams made the statements
attributed to him. Therefore, according to the judge,
Williams “did not make them.” Incredibly, the judge
also dismissed the significance of the statements attribut-
ed to Williams, reasoning that they “did not constitute
threats of physical violence and did not create a racially
charged atmosphere or intimidation.” As described be-
low, I believe these findings were clearly erroneous.

4 Dotson stated that she overheard Williams tell another employee,
“I will block the driveway and you can’t get out[.]” Employees Beate
Poston and Karla Livingston each complained that Williams harassed
them while they were standing in line to vote by showing them a “vote
yes” message displayed on his phone. The Respondent did not rely on
Poston’s and Livingston’s complaints as a basis for Williams’ suspen-
sion and discharge. Accordingly, I will not consider them further. In
addition, the Respondent does not except to the judge’s finding that any
comments Williams may have made about blocking the driveway to
prevent employees from leaving were not intimidating in the absence of
any evidence suggesting that he actually tried to block the driveway. In
the absence of relevant exceptions, I will not further consider the
“block the driveway” statement that Dotson said Williams made.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Discussion
In Burnup & Sims,5 the Supreme Court set forth the
standard that governs whether an employer violates Sec-
tion 8(a)(1) of the Act when an employee is discharged
for misconduct that was allegedly committed in the
course of NLRA-protected activity. The Court stated
that the discharge is unlawful only
if it is shown that the discharged employee was at the
time engaged in a protected activity, that the employer
knew it was such, that the basis of the discharge was an
alleged act of misconduct in the course of that activity,
and that the employee was not, in fact, guilty of that
misconduct.6
Under this analytical framework, the Board must first de-
termine whether the Respondent met its burden to show that
it had an honest belief that Williams had engaged in mis-
conduct. If the Respondent sustains this burden, the burden
shifts to the General Counsel to prove that Williams did not,
in fact, engage in the misconduct. See, e.g., Pepsi-Cola Co.,
330 NLRB 474, 474 (2000), opinion after remand 333
NLRB 87, 87–88 (2001); Wittek Industries, 313 NLRB 579,
579 fn. 2 (1993).
It is uncontroverted that the Respondent honestly be-
lieved Williams made the “rope around your
neck/hanging” statement and engaged in the other mis-
conduct described above. Moreover, threatening to hang
employees from a tree or to retaliate against them in oth-
er ways if they fail to vote for the Union constitutes seri-
ous misconduct. Here, I strongly disagree with the
judge’s finding that Williams’ statements were unobjec-
tionable because he had a “jolly” demeanor and was
merely being “boisterous and attention seeking”—his
“normal Anthony self”—on the day of the 2014 election,
and therefore employees would not believe he intended
to follow through on his threats. My colleagues do not
pass on this finding “at this time,” but it was plain error
all the same. See, e.g., Gem Urethane Corp., 284 NLRB
1349, 1353 (1987) (Board applies objective test in as-
sessing verbal threats directed at fellow employees in the
course of protected activity); Clear Pine Mouldings, 268
NLRB 1044, 1046 (1984) (same), enfd. 765 F.2d 148
(9th Cir. 1985), cert. denied 474 U.S. 1105 (1986). The
judge’s disregard for the serious nature of Williams’ al-
leged threats is particularly troubling since the threats
were directed against eligible voters in a Board-
conducted election and were uttered on the day of the
election itself as employees were waiting to vote. This
conduct goes to the very heart of the election process, the

5 379 U.S. 21 (1964).
6 Id. at 23.
primary instrument chosen by Congress to protect “the
exercise by workers of full freedom of association, self-
organization, and designation of representatives of their
own choosing, for the purpose of negotiating the terms
and conditions of employment or other mutual aid or
protection.”7
Because the Respondent believed in good faith that
Williams engaged in the actions described above, the
Supreme Court’s decision in Burnup & Sims establishes
that Williams’ suspension and discharge were lawful
unless the General Counsel satisfies his burden of prov-
ing that Williams did not engage in the misconduct. In
other words, Respondent’s honest belief that Williams
engaged in the misconduct attributed to him defeats the
complaint allegations challenging Williams’ suspension
and discharge “unless it affirmatively appears that such
misconduct did not in fact occur.” Rubin Bros. Foot-
wear, Inc., 99 NLRB 610, 611 (1952) (emphasis in orig-
inal; cited with approval in Burnup & Sims), enf. denied
on other grounds 203 F.2d 486 (5th Cir. 1953).
As the majority recognizes, the judge failed to apply
the standard set forth in Burnup & Sims. Although the
judge correctly stated at the outset of his analysis that the
General Counsel had the burden of proving that Williams
did not engage in the reported misconduct, he erroneous-
ly analyzed each piece of evidence based on a premise
that the Respondent was required to prove that Williams
did make the disputed threats.8 Equally erroneous is the
judge’s summary of his findings, where he stated that
“the entire record did not persuade me that it was more
likely than not that Williams made the statements at-
tributed to him. Therefore I found that he did not make
them.” Had the judge properly applied the burden of
proof required by Burnup & Sims, he would have evalu-
ated whether the record evidence established, or made it
more likely than not, that Williams did not make the dis-
puted statements.
This misallocation of the burden of proof eviscerates
the judge’s conclusion that the General Counsel carried
his burden of showing that Williams did not make the
“rope around your neck/hanging” statement. As dis-
cussed above, the judge found that Nolen and Schwenz
both testified believably that Williams made the “rope

7 NLRA Sec. 1.
8 Specifically, the judge stated that a “preponderance of the evidence
does not . . . establish that Williams told people who were about to
leave that he would ‘get’ or ‘come after’ them”; the judge stated that he
“cannot conclude that evidence makes it ‘more likely than not’ that
Williams made the ‘hanging’ statement which Nolen and Schwenz
attributed to him”; and the judge repeated that “a preponderance of the
evidence does not establish that Williams made any statement about
hanging people or any reference to the Halloween display on Litwin
Street.” See judge’s opinion, infra, slip op. at 21 and 24.
TAYLOR MOTORS, INC. 7
around your neck/hanging” statement and that they cor-
roborated each other. Nonetheless, the judge credited
Williams’ denial that he made the statement solely be-
cause three other employees (Poston, Dotson, and Fen-
wick) who, according to the judge, were within earshot
of Williams “did not corroborate the testimony of
Schwenz and Nolen.”9 However, while additional cor-
roboration for the testimony of Nolen and Schwenz
might help prove that Williams made the “rope around
your neck/hanging” statement, the Respondent was not
required to prove that Williams made the statement. Ra-
ther, under Burnup & Sims, the Respondent’s burden was
to show that it reasonably believed Williams made the
statement, whereupon the General Counsel had to prove
that Williams did not make the disputed statement. The
absence of the additional corroboration—the fact that the
record fails to contain more evidence like Nolen’s and
Schwenz’ testimony—does not constitute proof that Wil-
liams never made the statement. Because the judge cred-
ited Williams’ denial based on his erroneous assumption
that Nolen’s and Schwenz’ testimony required further
corroboration, his conclusory statement that the General
Counsel carried his burden of proof cannot withstand
scrutiny.
To the contrary, the judge’s own findings, viewed in
light of the correct legal standard, establish that the Gen-
eral Counsel did not carry his burden to prove that the
“rope around your neck/hanging” statement was never
made. As noted, Nolen and Schwenz believably testified
that Williams made the statement. The judge found that
they corroborated each other, with no evidence of collu-
sion. The testimony of Nolen and Schwenz was also
supported by the written complaints they submitted—
separately and independently—to the Respondent shortly
after Williams’ alleged misconduct. See Domsey Trad-
ing Corp., 351 NLRB 824, 836 fn. 56 (2007) (finding
that documentary evidence was “entitled to greater
weight than contradictory testimonial evidence”), enf.
denied on other grounds 636 F.3d 33 (2d Cir. 2011).
Furthermore, the judge found that the evidence regarding
whether Williams made the statement was “about evenly
balanced,” or in equipoise. If the evidence concerning
whether Williams made the statement is in equipoise, the
outcome turns on which party bears the burden of proof.
Under Burnup & Sims, the Respondent prevails unless
the General Counsel sustains his burden of proving that

9 Once again misapplying Burnup & Sims, the judge stated that “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 . . . .” See judge’s opinion,
infra, slip op. at 24 (emphasis added).
Williams did not make the statement. If, as the judge
found, the evidence was “about evenly balanced” as to
whether the statement was made, the General Counsel
did not satisfy his burden of proof. In these circumstanc-
es, the Board cannot reasonably find that the General
Counsel proved Williams did not make the statements.
This becomes even more apparent when the testimony
of Poston, Dotson, and Fenwick is properly analyzed. As
noted, they testified that they did not hear Williams make
the “rope around your neck/hanging” statement. My
colleagues correctly acknowledge that the failure of
Poston, Dotson, and Fenwick to further corroborate the
testimony of Nolen and Schwenz “does not help the
General Counsel’s case.” Nonetheless, the majority does
not rule out the possibility that the judge, on remand,
may still rely on the testimony of Poston, Dotson, and
Fenwick to bolster the credibility of Williams’ denial.
This possibility rests on a false premise—namely, that if
Williams made the “rope around your neck/hanging”
statement, then Poston, Dotson, and Fenwick each would
have testified that they heard it. However, the record
establishes that the bus bay was extremely loud, making
it unlikely that employees could hear everything Wil-
liams said. Moreover, even if these employees were
within “earshot” of Williams the entire time, it is unlike-
ly that while waiting in line for 30 to 60 minutes, each of
them would have focused on everything stated by every-
one else who was within “earshot” and would have re-
membered it at the time of the hearing.
Furthermore, and importantly, the record does not sup-
port the judge’s finding that Dotson, Fenwick, and
Poston were all within earshot of Williams at all relevant
times and would have heard the “rope around your
neck/hanging” statement had Williams made it. The
following considerations are relevant here.
 The judge stated that Dotson “denied that she
heard Williams say anything about the Hallow-
een display,” but he made no finding regarding
Dotson’s proximity to Williams at the relevant
time. Indeed, the record evidence shows that
Dotson was within earshot of Williams only
some of the time. Dotson testified that she
heard Williams say that he was going to block
the driveway with his car so nobody could get
out. But she also testified that Williams was
walking up and down the line speaking to many
people and that she did not hear everything Wil-
liams said. Moreover, Dotson testified that it
was “very loud” (Tr. 342), so even when Wil-
liams was nearby, she would not necessarily
have heard what he was saying.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
 The judge based his finding that Fenwick was
within earshot of Williams on Fenwick’s tes-
timony that Williams was standing behind her
in line. However, the record shows that Wil-
liams arrived to the bus bay at approximately
8:30 a.m., but he did not get in line to vote
until approximately 9:30 a.m., and the judge
failed to mention that Fenwick testified she
was sitting at a mechanic’s table in the bus
bay with another employee most of the time
until she got in line with Williams. Before
Williams got in line, he was walking up and
down the line talking to employees. There is
no evidence that Williams made the “hang-
ing” statement after he got in line behind
Fenwick, as opposed to the more likely sce-
nario that he made the statement while walk-
ing up and down the line. Thus, the mere fact
that Williams ultimately ended up standing in
line behind Fenwick does not support the
judge’s finding that Fenwick was within ear-
shot of Williams when Williams made the
“hanging” statement.
 The judge’s finding that Poston was within
earshot of Williams was based solely on his
finding that “Poston was standing close to
Schwenz”—one of the employees who re-
ported the “hanging” threat to the Respond-
ent—and therefore “should have heard the
‘hanging’ comment if Williams actually made
it.” However, Poston testified that she was
standing in line behind Schwenz “by the time
we stepped up to vote.”10 When asked
whether she remembered Schwenz standing
in front of her in line “when it was near the
back of the line,” Poston answered, “I
couldn’t swear to it.”11 In addition, Poston
left the voting line altogether at one point and
“stepped into the office” to complain about
Williams’ conduct (showing employees the
“vote yes” message on his phone).12 Thus,
the evidence does not show that Poston was
continually within earshot of Williams, and it
affirmatively shows that for a period of
time—i.e., when she left the voting line and
went to the office—she was not within ear-
shot of Williams. Accordingly, as with Fen-
wick and Dotson, the evidence fails to sup-
port the judge’s finding that Poston was with-

10 Tr. 191 (emphasis added).
11 Id.
12 Tr. 187.
in earshot of Williams when he made the
“hanging” statement.
In short, the record does not show that either Poston, Dot-
son, or Fenwick would necessarily have heard Williams
make the “rope around your neck/hanging” statement, and
this disposes of the sole basis upon which the judge relied to
credit Williams’ denial that he made that statement.
The majority elects to remand the case despite these
clear indications that the General Counsel did not meet
his burden of proof. In support of their decision, my
colleagues cite the judge’s erroneous failure to place the
burden of proof on the General Counsel, his improper
reliance on the absence of further corroboration for the
testimony of Nolen and Schwenz as supporting the Gen-
eral Counsel’s case, and his statements casting doubt on
his own resolution of witness credibility in favor of the
General Counsel. Respectfully, I believe that none of
these reasons withstands scrutiny.
First, it should be obvious that there is no need to re-
mand the case to correctly apply Burnup & Sims or to
correct the judge’s erroneous reliance on the lack of fur-
ther corroboration for the testimony of Nolen and
Schwenz. The Board can correct these errors itself.
Second, the judge’s doubts about his credibility deter-
minations in favor of the General Counsel also do not
warrant a remand. It is true that the judge stated that “the
scales appear to be about evenly balanced and my deci-
sion not to credit the testimony of Nolen and Schwenz
may well be wrong,” and he also stated that “some doubt
persists” that his decision to credit Williams’ denial was
correct.13 As shown above, his decision regarding these
matters was wrong. But the judge’s lack of certainty that
the General Counsel met his burden of proof—
particularly his finding that “the scales appear to be
about evenly balanced” between Nolen’s and Schwenz’
testimony that Williams made the disputed threat and
Williams’ denial that he did so—militates in favor of
dismissing the complaint allegation. Again, if the evi-
dence regarding whether Williams made the threat is in
equipoise, the General Counsel failed to sustain his bur-
den of proving that the statement was not made. See

13 I disagree with my colleagues’ finding that the judge’s doubts
about his credibility determinations are comparable to the “most equiv-
ocal procedure” employed by the judge in Roto Rooter, 283 NLRB 771
(1987), “for resolving the conflicting testimony regarding what actually
happened” in that case. Id. at 773. Roto Rooter, which dealt with
alleged striker misconduct, is inapposite. In that case, the judge credit-
ed “for the sake of analysis” a nonstriking employee’s testimony that
the misconduct occurred, while at the same time finding the striker’s
competing denial that he engaged in the misconduct more credible “in
some respects.” 283 NLRB at 773. In this case, in contrast, the judge
credited Williams’ denial. That determination was not made solely “for
the sake of analysis,” as in Roto Rooter, even if the judge expressed
“some doubt” that it was correct.
TAYLOR MOTORS, INC. 9
Samsung Electronics America, Inc., 363 NLRB No. 105,
slip op. at 2 (2016) (reversing judge’s credibility deter-
mination, finding evidence in equipoise as to whether
disputed statement was made, and dismissing relevant
complaint allegation); see also Universal Truss, Inc., 348
NLRB 733, 738 (2006) (General Counsel did not meet
his burden under Burnup & Sims where judge failed to
credit employee’s denial of misconduct; remand unwar-
ranted where General Counsel did not argue that one was
necessary).
If this were a case where demeanor-based credibility
determinations were in question, a remand might well be
appropriate. But this is not such a case. As noted above,
the judge has already made specific credibility determi-
nations: he found that “[a]ll the witnesses appeared to be
telling the truth” and that Schwenz’ testimony was “simi-
lar enough to corroborate Nolen’s testimony but not so
similar as to suggest collusion.” The judge also found
that “nothing in the demeanor of either witness suggested
untruthfulness” and that witness demeanor “provides no
assistance here.” There are no exceptions to these find-
ings.14 Moreover, the “Board has consistently held that
‘where credibility resolutions are not based primarily
upon demeanor . . . the Board itself may proceed to an
independent evaluation of credibility.’” J. N. Ceazan
Co., 246 NLRB 637, 638 fn. 6 (1979) (quoting Electrical
Workers, Local 38), 221 NLRB 1073, 1074 (1975)).
See, e.g., Samsung Electronics America, Inc., supra (re-
versing judge’s credibility determination not based on
demeanor, and stating that where the judge does not rely
on demeanor, “the Board is as capable as the judge of
analyzing the record and resolving credibility issues”).
As shown, the Board can readily perform that evaluation
here.15 Accordingly, a remand is unwarranted, and the

14 The majority opinion highlights certain aspects of Poston’s and
Dotson’s testimony that my colleagues appear to believe may cast
doubt on the credibility of Nolen and Schwenz. But I believe that
neither the Board nor the judge on remand is free to make credibility
determinations inconsistent with the unexcepted-to findings discussed
above.
15 Cases relied on by my colleagues in support of their remand are
distinguishable. In Pepsi-Cola Co.,supra, 330 NLRB 474, a manager
testified that he overheard an employee calling for a boycott of a meet-
ing called by the employer, while the employee denied making the
statement. Notably, in his initial decision, the judge did not make any
credibility determination regarding the employee’s denial, nor did he
give any indication that he had considered demeanor with respect to the
testimony of any witness. The judge also failed to make any clear
finding whether the employer met its burden of proving it had an honest
belief that the employee engaged in the misconduct, or whether the
General Counsel proved that he did not. In these circumstances, the
Board remanded the case to the judge. On remand, the judge clarified
that he credited the manager based largely on demeanor, and he found
that the employee’s denial was not reliable. 333 NLRB at 87–88. In
Roto Rooter, 283 NLRB at 771, a nonstriking employee testified that
record evidence, when properly evaluated under the bur-
den allocations dictated by Burnup & Sims, compels a
finding that Williams’ suspension and discharge were
lawful.
Accordingly, for all of the foregoing reasons, I respect-
fully dissent from the majority’s decision to remand this
case to the judge.
Dated, Washington, D.C. March 13, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
NATIONAL LABOR RELATIONS BOARD
Katherine Miller, Esq., for the General Counsel.
Christopher Caiaccio, Esq. and Michael G. Johnson, Esq.
(Christopher Caiaccio, Esq.), of Atlanta, Georgia, and Nash-
ville, Tennessee, for the Respondent.
Ms. Judy Hansford, of Fort Campbell, Kentucky, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Respondent
unlawfully discharged an employee because of a mistaken be-
lief that he had engaged in misconduct while trying to persuade
other employees to vote for the Union in a representation elec-
tion 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 Gov-
ernment Employees (AFGE), AFL–CIO, Local 2022, AFL–
CIO (here called the Union or the Charging Party) filed a peti-
tion in Case 10–RC–137728, seeking to represent certain em-
ployees 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 driv-

while he was driving a company van, a striker cut him off and threat-
ened him with physical violence, and the striker denied doing so. Like
the judge in Pepsi-Cola Co., the judge in Roto Rooter altogether failed
to make any credibility determination regarding the testimony of one
witness, stating that he was crediting the nonstriker’s testimony “for the
sake of analysis” only. Id. at 777. On the other hand, the judge stated
that he found the striker’s testimony more credible than the nonstriker’s
“in some respects”—a hopelessly opaque finding. Id. Moreover, there
was no indication whether the judge had considered demeanor with
respect to the testimony of either witness. In light of the judge’s failure
to make a clear credibility resolution, the Board could not determine
whether any misconduct occurred and, if it did, whether it was suffi-
ciently egregious to deprive the striker of his right to recall under the
Act. Id. at 773. The Board thus remanded the case to the judge.
In this case, in contrast, the judge made clear findings on all perti-
nent issues, albeit many of those findings are erroneous for the reasons
detailed herein; and he expressly ruled out witness demeanor as a basis
for resolving any issues regarding witness credibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
ers, aides, mechanics, and clerical employees, employed by the
Employer at its Fort Campbell, Kentucky facility but excluding
all other employees, professional employees, confidential em-
ployees, 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 objec-
tions. On December 8, 2014, the Union and Respondent en-
tered into a stipulation to set 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 pre-
sent complaint. Specifically, on November 24, 2014, it filed
charges docketed as Cases 10–CA–141565 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.
The Board conducted the second election in Case 10–RC–
137728 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 objections and order directing hearing. On
February 23, 2015, the Regional Director issued an order con-
solidating cases, consolidated complaint, and notice of hearing.
(For brevity, this pleading, as amended at the hearing,1 the
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 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 re-
quest on April 21, 2015. As a result, the only objections re-
maining in issue in this proceeding concern matters also alleged
to be unfair labor practices.
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 telephone
conference call, counsel presented oral argument and the hear-
ing closed.
Admitted Allegations
Based upon admissions in the Respondent’s Answer, I find
that the General Counsel has 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

1 During the hearing, the General Counsel orally amended complaint
par. 1(a) to reflect that the Charging Party filed a 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.
were filed, amended, and served 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 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 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 Antho-
ny Williams on November 7, 2014, as alleged in complaint
paragraph 9. I so find.
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 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. Wil-
liams’ termination notice and all other evidence in the record
indicates that the discharge 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, 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)
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 activi-
ties, 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 union au-
thorization cards and had distributed the cards to other employ-
ees.
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 Re-
spondent’s facility at Fort Campbell, Kentucky. There, the
Respondent keeps the school buses driven by some of the em-
ployees in the unit described above, and maintained by other
employees in that unit.

2 At hearing, the General Counsel moved to amend complaint par.
1(a) to reflect that the unfair labor practice charge was amended a sec-
ond 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.
TAYLOR MOTORS, INC. 11
On August 22, 2014, Moore received a report from a driver,
Sharon Moore, that two other drivers, Larry Cruthis and An-
thony Williams, were in the parking lot passing out something.
Although Director Moore testified that Driver Moore said that
Cruthis and Williams were passing out “materials,” I find that
Driver Moore said they were passing out union cards. My rea-
sons 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 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.
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:
Q. What did Charlotte say to you?
A. She came to me as I was on my phone. She came out-
side. 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 —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?
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 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 in-
formation Moore had received before she went out on the park-
ing lot and spoke with Williams. If Moore only had heard that
Williams was handing out “materials,” it would seem less like-
ly that she mentioned union cards when she talked with him.
However, if she had received a report that Williams was dis-
tributing 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 Transporta-
tion Director Charlotte Moore, did not testify, so the latter’s
testimony provides the only direct information about this con-
versation. However, this rather confusing testimony leaves
open whether Driver Sharon Moore came to Charlotte Moore’s
office or telephoned her on the afternoon of the latter’s conver-
sation with Williams.
A portion of this testimony suggests that Sharon Moore actu-
ally 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 about the sequence of
events:
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 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—
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 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.
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 go-
ing on.
Moore’s chronology is confusing. She first testified that
Driver Sharon Moore gave her 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:
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.
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 se-
quence 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 told him she
had received a call that he and Cruthis were handing out union
cards.
However, even if driver Sharon Moore had merely tele-
phoned 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 believe that Sharon Moore would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
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
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 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
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 tes-
timony, I do not consider it to 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. 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 conversa-
tion. On that form, Williams wrote:
I Anthony Williams on Friday 08–22–2014 Mrs. Charlotte
came by my car and ask me to hand over the union cards. I
ask her what is she talking about Mrs. 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 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?
A. I approached his vehicle, and I asked him the same ques-
tion as I did Mr. Williams.
Q. What was that question?
A. I asked him was he passing out materials on the park-
ing lot and could I see them.
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 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.
It is somewhat difficult to accept both Moore’s claim that
she did not use the word “union” but only referred to “materi-
als” and her further claim that Cruthis then brought up the Un-
ion 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 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 Tay-
lor that afternoon indicates she did discuss the subject with
Cruthis. Indeed, in that email Moore raised the subject of solic-
iting employees to sign a petition for the Union and then stated
that “Larry would not deny it but said he would talk to me lat-
er.”
However, there is a difficulty. Cruthis himself testified that
this discussion about the Union never took place:
Q. And at some point while you were out in the parking
lot, Charlotte Moore came out and talked to you, didn’t she?
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 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?
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.
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. Accord-
ingly, it was not in his interest to deny that this conversation
took place. That fact weighs in favor of crediting his testimo-
ny. Of course, it was not in Moore’s interest, as one of Re-
spondent’s managers, to testify that she did ask Cruthis about
handing out “materials.”
As noted above, portions of Moore’s testimony were confus-

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.”
TAYLOR MOTORS, INC. 13
ing, which raised doubts about its reliability. Therefore, I did
not credit Moore’s testimony regarding her conversation with
Williams to the extent that it conflicted with Williams’ testimo-
ny.
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 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 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 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 administrative law judge’s anal-
ysis of certain statements alleged to violate Section 8(a)(1) of
the Act. The judge had described the framework for that analy-
sis 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 sympathies and
activities turned on the question of whether “under all circum-
stances, the interrogation reasonably tends to restrain or inter-
fere 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
are as follows:
1. The background, i.e. is there a history of employer hos-
tility and discrimination?
2. The nature of the information sought, e.g. did the inter-
rogator appear to 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 to the boss’s office? Was there an at-
mosphere 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 Un-
ion before this conversation on August 22, 2014. The first
factor therefore weighs against finding a violation.
As to the second factor, Moore specifically sought infor-
mation 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 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 par-
ticular facility and in charge of it. The third factor therefore
weighs in favor of finding a violation.
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 re-
flects some concern, if not 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. There-
fore, I conclude that the interrogation was unlawful.
However, I do not conclude that Moore’s statement to Wil-
liams, that she had received a report that he was passing out
union cards, also created an unlawful impression of surveil-
lance. The statement indicates that another employee had vol-
unteered information to management but reasonably would not
convey that the Respondent had placed the employees under
surveillance. See, e.g., North Hills Office Services, Inc, 346
NLRB 1099 (2006).
In sum, I recommend that the Board find that Respondent vi-
olated Section 8(a)(1) by unlawfully interrogating an employee
about that employee’s union activity.
Paragraph 7(b)
Complaint Paragraph 7(b) alleges that on about August 22,
2014, in the hall way of its facility, the Respondent, by Char-
lotte Moore, interrogated an employee about the employee’s
union activities. The Respondent denies this allegation and
further denies that it thereby violated Section 8(a)(1) of the Act,
as alleged in complaint paragraph 12.
Employee Sandra Fenwick testified concerning a brief con-
versation 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 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. Fen-
wick further testified as follows:
Q. And you were in this hallway when Charlotte asked
you a question?
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?
A. No, there was people in the other rooms.
Q. But nobody right near you in the hallway?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
A. No.
Q. What did you say back to her?
A. I told her no.
Q. At that point, had you heard anything about the la-
bor?
A. No.
Moore specifically denied this conversation and the state-
ments Fenwick attributed to her.
The vagueness of Fenwick’s testimony causes me to doubt
its reliability. Although the General Counsel argues that anoth-
er witness, Linda Collins, “further corroborated Sandra Fen-
wick’s testimony by explaining that Fenwick had told Collins
about this question by Director Moore,” this type of “corrobo-
ration” really amounts to hearsay, because Collins herself did
not hear the statement which Fenwick attributed to Moore.
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.
Accordingly, I recommend that the Board dismiss the allega-
tions raised by complaint paragraph 7(b).
Complaint Paragraph 7(c)
Complaint paragraph 7(c) alleges that Respondent, by Char-
lotte Moore, during a telephone call on about August 25, 2014
(i) interrogated an employee about the employee’s union activi-
ties 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 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 conversa-
tion 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.
As discussed above, Cruthis denied that Moore had ap-
proached 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 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 com-
plaint paragraph 7(e), I quote it here because it appears to be
the only evidence which might support the allegations in com-
plaint paragraph 7(c). Cruthis testified as follows:
Q. Thank you. Did Ms. Charlotte ever ask you about un-
ion cards?
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?
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.
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 certain
facts:
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?
A. I don’t remember exactly who, because so many peo-
ple 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 re-
call, 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?
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 con-
versation with Charlotte regarding these union cards?
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.
Cruthis started the union organizing effort and was the main
force behind it. 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 any-
thing 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.”
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. How-
ever, the complaint does not allege that Moore make such a
threat and Cruthis did not testify that she did.
This disparity between his pretrial affidavit and his testimo-
ny 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 relia-
bility of his testimony.
For these reasons, I do not have confidence in Cruthis’ testi-
mony and do not credit it. Therefore, I find that the govern-
ment has not proven the allegations raised in complaint para-
TAYLOR MOTORS, INC. 15
graph 7(c) and recommend that the Board find that Respondent
did not violate the Act as alleged in that paragraph.
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 sympa-
thies and the union sympathies of other employees. The Re-
spondent 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 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 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.
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?
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?
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.
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 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 fam-
ily.
Q. When you say you received that information, can you
tell me who provided you with that information?
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 relia-
bly 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.
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 par-
agraph 7(a) and described above. However, the record does not
establish that the Respondent had embarked on any orchestrat-
ed 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 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.
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 em-
ployees sought a better 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,
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 1223 (2002). There-
fore, I recommend that the Board dismiss the allegations raised
in complaint paragraph 7(d).
Complaint Paragraph 7(e)
Complaint paragraph 7(e) alleges that on about October 22,
2014, in a telephone call, the Respondent, by Charlotte Moore
(i) interrogated an employee about the employees union activi-
ties, 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 conclu-

4 Williams denied that Moore asked him about the specific state-
ments 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 per-
vert.” 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
sion, alleged in complaint paragraph 12, that it thereby violated
Section 8(a)(1) of the Act.
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 mak-
ing a reference to it,
Employee Larry Cruthis testified that Transportation Direc-
tor 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?
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?
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 approx-
imate date, for this 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?
A. I thought she called me twice, but she could have
asked me in person 2 or 3 days later. I don’t really re-
call, 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?
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 con-
versation with Charlotte regarding these union cards?
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.
In fact, at some point Cruthis did make a note, which I re-
ceived into evidence over the Respondent’s objection. Alt-
hough it bears the notation “2014” it bears no other indication
of when it was written. It states:
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.
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.
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 management pro-
hibited 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 relia-
bility of his memory.
Further, it seems somewhat improbable that Moore would
forbid passing out union cards on October 22, which was more
than 3 weeks after the Union filed its representation petition.
Typically, union supporters solicit employees to sign authoriza-
tion 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.
Other reasons to doubt Cruthis’ testimony have been dis-
cussed 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 telephone or in person, and never told him not to distribute
them.
Concluding that the government has not proven the allega-
tions raised in complaint paragraph 7(e), I recommend that the
Board dismiss those allegations.
Complaint Paragraph 8
Complaint paragraph 8 alleges that since about August 2,
2014, Respondent has required employees to sign the following
confidentiality/nondisclosure agreement:
Taylor Motors, Inc.
Confidentiality/Non Disclosure Agreement
When you begin work with Taylor Motors, Inc. you will
have access to information that the company considers confi-
dential. 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 obli-
gation to keep company information confidential. We also
wish to remind you about the types of information that the
company considers privileged. The following are types of in-
formation that you are bound to keep confidential:
TAYLOR MOTORS, INC. 17
Compensation data, financial information, pending projects
and proposals, any 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 letter is intended to remind you of your obli-
gation to keep privileged information confidential and to re-
state 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 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 that it thereby violated Section
8(a)(1) of the Act.
The record includes copies of a Confidentiali-
ty/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.
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.”
The record establishes, and I find, that at some point the Re-
spondent required employees to sign agreements with the lan-
guage alleged in complaint paragraph 8. However, this com-
plaint paragraph also includes an allegation about when the
Respondent maintained such a requirement.
Complaint paragraph 8 alleges that the Respondent has
maintained the requirement since about August 2, 2014. How-
ever, Williams signed the confidentiality/nondisclosure agree-
ment 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.
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 re-
pudiation argument.
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 hand-
book went into effect which explicitly rendered void previous
personnel policies. General Manager Delancey testified that
the new handbook does not include a nondisclosure policy:
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.
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 “confidentiali-
ty/non-disclosure agreement” it does include a section titled
“Non-Disclosure/Confidentiality.” That section states as fol-
lows:
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:
Financial information,
Marketing strategies,
Pending projects and proposals,
Proprietary processes.
All employees are required to sign a non-disclosure agree-
ment as a condition of employment, a copy of which is locat-
ed in the addendum.
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.
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 re-
quired to sign a nondisclosure agreement as a condition of em-
ployment. In sum, I find that Respondent’s issuance of a new
handbook in August 2014 did not nullify or repudiate its exist-
ing requirement that each employee must sign a confidentiali-
ty/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 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 em-
ployment.
Having concluded that Respondent has not abrogated its re-
quirement that employees sign a confidentiality/nondisclosure
agreement, I turn to the question of whether Respondent nulli-
fied 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 by Williams in 2009?
Initially, it may be noted that the handbook’s confidentiali-
ty/nondisclosure provisions, after stating that all employees are
required to sign such an agreement as a condition of employ-
ment, continues with the words “a copy of which is located in
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
the addendum.” 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 sup-
plant the language in the agreement signed by Williams and
described in complaint paragraph 8. However, evidence does
establish that two employees signed the old agreement in Sep-
tember 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?
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 employ-
ment applications. And the documents that new em-
ployees have to sign these days on a military base are
quite thick, and it was accidentally signed.
Even if Pollack and the other employee signed the agree-
ments in September 2014 by mistake, there is no evidence that
the Respondent took any action to correct the mistake. Thus,
DeLancey testified:
Q. Was any communication specifically sent to these two
employees informing them that this policy was a mis-
take?
A. Not to my knowledge.
This evidence and the conclusions to be drawn from it may
be summarized as follows: (1) The August 2014 employee
handbook reiterated and continued the requirement that em-
ployees 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 agree-
ment requirement in the employee manual was, in fact, being
enforced; (3) Notwithstanding Respondent’s claim of mistake,
it took no corrective action; (4) The employee handbook’s re-
quirement 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 repudiation of the confidentiali-
ty/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.
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 reasona-
bly would communicate to an employee.
Moreover, context is important. Examining words in isola-
tion would not lead to a 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 look
first to language at the beginning of the handbook which an-
nounces its purpose and effect. The cover page of the hand-
book 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 con-
dition of continued employment.” (Italics added.)
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:
THE MANUAL IS FOR INFORMATION ONLY, AND IS
NOT A 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.
The second paragraph states:
THIS MANUAL SUPERSEDES AND REPLACES ALL
OTHER MANUALS OR SIMILAR MATERIALS WHICH
HAVE BEEN PUBLISHED OR 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.
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 em-
ployment” distinguishes the agreement from the handbook,
which disclaims such status. 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 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
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 nondis-
closure agreement to outrank the manual in status and perma-
nence. A statement that prior manuals and policies were null
and void reasonably would not be understood to mean that the
TAYLOR MOTORS, INC. 19
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 as-
sume that the old agreement remained in effect.
Accordingly, I conclude that issuance of the handbook in
August 2014 did not effectively repudiate the confidentiali-
ty/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 bind-
ing. Even the employees who signed these agreements after
issuance of the handbook did not receive such notification, In
sum, there has been no effective repudiation of these agree-
ments. Lily Transportation Corp., 362 NLRB No. 54 (2015).
Concluding that employees would not reasonably believe
that the August 2014 handbook nullified or repudiated the con-
fidentiality/nondisclosure agreements they had signed, I will
now consider whether certain provisions in those agreements
are lawful under the Act. The Board has stated that the appro-
priate 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).
In Battle’s Transportation, Inc., 362 NLRB No. 17 (2015),
the respondent required its employees to sign a document stat-
ing 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 and alco-
hol screening results, personal/bereavement/family leave in-
formation, 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:
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 con-
strue those phrases to encompass terms and conditions of em-
ployment or to restrict employees from discussing protected
activity such as Board complaints or investigations.
362 NLRB No.17, slip op. at 2 (footnote omitted).
In the present case, the employees signed confidentiali-
ty/nondisclosure agreements prohibiting them from disclosing,
among other things, “compensation data” and “person-
nel/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 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 their Section 7 rights.5 I recom-
mend that the Board find that the Respondent thereby violated
Section 8(a)(1) of the Act.
Suspension and Discharge of Anthony Williams
As noted above, the Respondent has admitted that it sus-
pended employee Anthony Williams on November 7, 2014, as
alleged in complaint paragraph 9. Additionally, Respondent
has admitted that it discharged Williams, as alleged in com-
plaint paragraph 10. This discharge took place on November
13, 2014.
However, the Respondent denies that it took those actions
because Williams formed, joined and assisted the Union and
engaged in concerted activities, and to discourage employees
from engaging in these activities, as alleged in complaint para-
graph 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.
Williams’ Actions at the First Election
Williams, a bus driver, began working for Respondent in Ju-
ly 2009 and thus had been employed more than 5 years at the
time of his discharge. However, the Respondent does not base
the discharge decision on anything other than Williams’ actions
at the first representation election, November 6, 2014. Accord-
ing to the discharge notice, Respondent terminated Williams’
employment because of “harassing and intimidating behavior.”
It claimed that Williams had threatened employees with physi-
cal violence and that employees “clearly felt intimidated by
your statements creating a hostile environment.”
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 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 de-
scribed him as loud and none suggested that he was an intro-
vert.6 As discussed above, Williams had solicited employees to
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

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 provi-
sions in that handbook. My consideration of this handbook is limited to
the question of whether it effectively repudiated the confidentiali-
ty/nondisclosure agreements, as the Respondent contends. For the
reasons stated above, I have concluded that it did not.
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Claus—as he went up and down the line.
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.
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:
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 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 hear-
ing 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 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 to-
day 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 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 loca-
tions. 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.
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 “in-
timidated,” which Dotson used in the portion quoted above, and
the phrase “hostile work environment” appear in the discharge
notice which Respondent gave Williams. Therefore, 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 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. Dotson
described the rules as “just get in line, do not talk about the
voting at all, whether you’re 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 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 kid-
ding. He looked like he was 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:
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 An-
thony looked like he was serious or not serious?
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.
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?
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.
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 con-
text, I believe it likely that, by “serious,” Dotson meant “intend-
ing to do what he said and not kidding.” It is difficult to under-
stand how Williams reasonably could be considered intimidat-
ing 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 would not, without more, rise to the
level of intimidating. Moreover, the record clearly indicates
that Williams’ demeanor verged on ebullient. To be sure, it
was a noisy ebullience that a number of people considered ob-
noxious, but cheerful nonetheless.
TAYLOR MOTORS, INC. 21
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 Williams
actually tried to block the driveway 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 an-
nounced. Additionally, Dotson’s annoyance at having to par-
ticipate 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 asked 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 Montgom-
ery County. Like they have retirement benefits. They
have 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.
As Dotson made clear on cross-examination, it was not Wil-
liams who asked her about these matters but some other em-
ployee. 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 dis-
pleasure.
Although Williams did not ask Dotson about her wages and
benefits at the prior job, and although the record does not estab-
lish the identity of this questioner, Dotson apparently consid-
ered 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 per-
sonal question about my past jobs and current job while I was
waiting to vote by someone trying to force me to support some-
thing 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:
Q. Did you have any complaints about the election?
A. Yes, because we were—I mean, we were told how it
was supposed to go. We were supposed to get in line,

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 em-
ployees about to leave, and I find that he did not.
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 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, some policies a little differ-
ent 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.
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
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 irritat-
ing. 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.
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.”]
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 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 moti-
vation for filing the complaint with Moore:
Q. Because you were upset about Anthony, correct?
A. Anthony and the whole way it—this was not—I
mean, it was the first time I’ve ever been in an elec-
tion 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 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 intim-
idated” warrants a closer look in view of similar language in
Williams’ discharge notice, which claimed that he had violated
Respondent’s policy against “harassing and intimidating behav-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
ior.” After giving the testimony quoted above, Poston contin-
ued 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 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 was maybe after I came back.
Based on Poston’s testimony, I find that Williams did noth-
ing 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 evi-
dence indicates that Williams persisted 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 com-
plaint that she felt harassed reflected her exasperation with the
entire situation.
According to Transportation Director Moore, another em-
ployee, Karla Livingston, also complained to her. At Moore’s
request, Livingston put the complaint in writing. This docu-
ment, dated November 6, 2014, states:
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.
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
The Lady was taking pictures of us in the bay. She was with
the Union. I also 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.” Liv-
ingston only stated that Williams “made sure I seen it, 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 served as the Union’s election ob-
server, Linda Collins.
Two other employees also complained to Moore, and their

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.”
complaints attributed to Williams a statement which the Re-
spondent characterized as a racially-charged threat. Some
background information will help place it in context.
The November 6 election came just one week after Hallow-
een. A local resident had displayed, in front of his home, deco-
rations so offensive that they became the subject of news cov-
erage: Effigies with black faces, hanging from ropes as if in a
lynching.
It should be stressed that no evidence establishes any con-
nection 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 was on
Litwin Street, in the course of taking children to and from
school. However, because of the news stories about the effi-
gies, they had become a topic of conversation.
On November 6, 2014, about three to four hours after the
representation 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, pro-
vided 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.
Moore asked Nolen to put her complaint in writing. Nolen
prepared and gave to Moore the following one-paragraph
statement:
While we were out in the bay waiting to vote Anthony Wil-
liams 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 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.”
Nolen further testified that while she was standing in line
waiting to vote, Williams said “if you do not vote yes, I’m go-
ing 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.”
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 deciding, that
Williams actually made the statement.
During cross-examination by Respondent, Nolen testified
that she had felt threatened by Williams’ remark:
Q. What specifically about it made you feel threatened?

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 sup-
porter Cruthis testified that after the votes were counted, Laumb threw
a pen on the floor and stomped it.
TAYLOR MOTORS, INC. 23
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 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?
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 re-
mark as attempted humor. Moreover, if Nolen really had felt
threatened at the time, she likely would have reported it to her
supervisor, Transportation 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, No-
len was in the break room talking with Donna Laumb. As not-
ed above, Laumb’s antiunion sentiments ran so strong that,
reportedly, when she heard that the Union had won the election,
she threw a pen on the floor 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, that Laumb alerted Moore and that
Moore, in turn, asked Nolen to write a statement.
Moore also asked driver Janice Schwenz to write a state-
ment. 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 statement:
11-6-2014
Taylor Motors and To Whom it may concern
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.
As noted above, Schwenz testified that on the day of the
election, Williams was being his “normal Anthony self,” mean-
ing loud and boisterous. According to Schwenz, he was walk-
ing 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:
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?
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 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 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.
Thus, when asked about seeing anything that “troubled you,”
Schwenz answered by mentioning Williams’ advocacy for the
Union rather a comment about hanging. This response is con-
sistent 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 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?
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 go-
ing 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 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 any-
body in particular?
A. No, he just said it out.
Later in her testimony, Schwenz described how the listeners
reacted to that comment. 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—
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 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 he was not
nearby. Poston was standing close to Schwenz and, consider-
ing 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
statement, Poston’s statement described how Williams had
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’ “campaign-
ing” for the Union “extremely irritating.”
Clearly, Poston considered Williams’ actions to be obnox-
ious, and obnoxious actions tend to stick in memory. If she had
heard Williams make the “hanging” comment Schwenz at-
tributed 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 any-
thing about hanging or the Halloween display on Litwin Street.
Another bus driver, Mary Dotson, also denied that she heard
Williams say anything about the Halloween display. The
statement which Dotson gave to Transportation Director
Moore, and quoted above, complained about Williams’ state-
ment 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 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:
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?
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 con-
sider to be a threat in any way?
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 that a witness did not hear a state-
ment does not rule out the possibility that the other person in-
deed 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 comment about hanging. Ac-
cording 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 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.”
However, Williams expressly denied making the statement.
Poston, Dotson, and Fenwick, who were within earshot of Wil-
liams, testified that they did not hear him make such a state-
ment.
This conflict in the testimony raises two possibilities: Either
Nolen and Schwenz were not telling the truth when they testi-
fied that Williams made the “hang you” remark or Williams
was not telling the truth when he denied it. Not all lies require
the same amount of effort or require the same amount of moti-
vation. 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 motiva-
tion to make an exculpatory denial—to escape consequences—
is both common and obvious.
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 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 ex-
culpatory denial. At the least, I conclude that, even if some
circumstances might make it 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.
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 the
hanging statement if they had heard Williams make it.
Stated another way, if Williams really had made the “hang-
ing” 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 “hang-
ing” statement which Nolen and Schwenz attributed to him.
It should be stressed that the scales appear about evenly bal-
anced 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 any statement about hanging peo-
ple or any reference to the Halloween display on Litwin Street.
Therefore, I find that he did not.
Williams’ Suspension and Discharge
The first election took place in the morning on November 6,
2014, and some time that afternoon, Transportation Director
TAYLOR MOTORS, INC. 25
Moore contacted her superior, General Manager Robert Grego-
ry 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. 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.
A. For the remarks that were racially charged. Those
were taken very seriously. Our policy says that if an-
yone 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 al-
lows for a 3-day period to conduct such. And we
wanted to make sure that we followed 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 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?
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.
DeLancey testified that he made the decision to suspend Wil-
liams. 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:
Q. So after going through all of those statements, would
it be fair to say that the reasons for Anthony’s sus-
pension 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.
A. No question.
Q. And are those the only reasons for Anthony’s suspen-
sion?
A. The only reason.
On November 7, 2014, Moore met with Williams to notify
him that he was being suspended, with pay, pending an investi-
gation. DeLancey did not attend this meeting. Moore 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 Tay-
lor Motors’ Rule 4.3 relating to harassing and intimidating
behavior in the workplace. Multiple employees 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 unac-
ceptable in the workplace. The Company intends to immedi-
ately commence an investigation into this alleged misconduct
and violation of Company policy.
The suspension notice was written on a standard form. In
the section pertaining to applicable company policies, the no-
tice stated:
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 oth-
er unlawful or unwelcome harassment. As noted above, Tay-
lor Motors will conduct an investigation into your conduct
and statements on November 6, 2014, and make a determina-
tion of whether your conduct violated these standards and pol-
icies.
Even though the suspension notice referred to threats, “har-
assment and intimidating conduct,” Respondent did not inform
Williams of the specific statement attributed to him. Williams
credibly testified as follows:
Q. What happened when she came back to the office?
A. When we came back in the office, she had another la-
dy 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 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:
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?
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.
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.
Neither Moore nor DeLancey did any further investigation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
According to DeLancey, the Respondent’s legal counsel con-
ducted the investigation. DeLancey testified that, after confer-
ring with counsel, he decided to discharge Williams:
Q. The reasons you gave for the suspension, the racially
charged remarks 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?
A. The only reason.
The termination notice which Respondent issued to Williams
described the reasons for his discharge as follows:
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 harass-
ing and intimidating behavior in the workplace. Multiple em-
ployee’s indicated you made racially-charged comments,
threatening them with physical violence. Employees clearly
felt intimidated by your statements creating a hostile envi-
ronment. This was inappropriate and violates our policy.
Legal Analysis
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 prog-
eny. This framework applies when an employer honestly but
mistakenly believes that an employee has engaged in miscon-
duct during the course of activity protected by the Act, and
discharges or disciplines the employee for the supposed mis-
conduct.
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 mak-
ing the threats.
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 en-
gaged in protected activity. Although talking with fellow em-
ployees about a union ordinarily is protected activity, Respond-
ent contends that in this instance, where the conversation in-
volved 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 election because the Union’s sec-
retary-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 elec-
tioneering or pressure, and unfair advantage from prolonged
conversations between representatives of any party to the elec-
tion and voters waiting to cast ballots was of sufficient concern
to warrant a strict rule against such conversations, without in-
quiry into the nature of the conversations.
However, the Michem case solely involved representation is-
sues, not the question of whether an employee’s prounion activ-
ity enjoyed the protection of the Act. It does not suggest that
conduct which is objectionable—that is, which warrants setting
aside the election—is 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 prolonged conversations with employ-
ees 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. According-
ly, I reject the Respondent’s argument that Williams was not
engaged in protected activity.
In arguing that the Wright Line framework should be fol-
lowed, 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 Burnup & Sims, was correct under
the circumstances.
The Respondent also cites Fresenius USA Mfg., 358 NLRB
1261 (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 Fresenius USA Mfg. as binding
precedent.10 However, Respondent cited Fresenius during oral
argument because it summarized existing law, and for that pur-
pose, as an analysis and discussion of prior cases, the opinion
speaks with the same authority as would a law review article by
distinguished professors.
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 inap-
plicable where, as here, an employer undisputedly takes action
against an employee for engaging in protected conduct. . .”
Fresenius USA Mfg., 358 NLRB 1261, 1264 fn. 7, citing Bever-
ly Health & Rehabilitation Services, 346 NLRB 1319, 1322
(2006).
As discussed above, I have concluded that Williams was en-
gaged in the protected activity of trying to persuade fellow
employees to vote for the Union, and Respondent has admitted
it discharged Williams for statements he made as part of that
effort to persuade. Therefore, a Wright Line analysis is not

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 appoint-
ments invalid. Two of these Board members sat on the panel which
issues Fresenius USA Mfg.
TAYLOR MOTORS, INC. 27
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).
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 hon-
estly but mistakenly believed that they had engaged in miscon-
duct during the course of the protected activity and (2) Cases
involving employees who did, in fact, mingle some misconduct
with the protected activity, but the misconduct was not oppro-
brious 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 fo-
cuses on the factors the Board set forth in Atlantic Steel Co.,
245 NLRB 814 (1979), and its progeny.
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 mis-
conduct arising out of a protected activity, the employer has the
burden of showing that it held an honest belief that the employ-
ee engaged in serious misconduct. Once the employer estab-
lishes 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).
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 ac-
tions were DeLancey’s beliefs that (1) Williams had made ra-
cially charged remarks that included a threat of physical vio-
lence and (2) Williams had said he would block a driveway so
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 DeLanc-
ey. Their authors disliked the entire union organizing cam-
paign 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 mo-
ment 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.
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
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 discussed
above, I conclude that the government has carried this burden.
My decision to credit Williams’ denials rested to a consider-
able 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 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 re-
member and report any such “hanging” remark.
Although this absence of corroboration led me to credit Wil-
liams’ denial, some doubt 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 de-
meanor of either witness suggested untruthfulness.
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 be noted that even if I had credited Nolen
and Schwenz, and found that 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 circum-
stances and applying an objective standard, I would conclude
that the comments attributed to Williams did not constitute
threats of physical violence and did not create a racially
charged atmosphere or intimidation.
In reaching this conclusion, I would not be applying an At-
lantic 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. Ra-
ther, assuming that Williams had, in 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 re-
mark, it would not have constituted the threat or resulted in the
intimidation which DeLancey believed occurred.
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 elec-
tion, Williams might well have appeared to be disgustingly
cheerful. They would not have mistaken attempted 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:
Q. Did you say anything in response to Anthony making
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
this threat?
A. I told him it wasn’t very funny.
Q. Did he say anything in response to that?
A. He laughed.
Nolen’s reply that “it wasn’t very funny” indicates she rec-
ognized 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 submit-
ted to Moore, and upon which DeLancey relied in deciding to
discharge Williams, did not mention Nolen’s “wasn’t very fun-
ny” 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 peo-
ple that if they left before 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.”
Employees who worked with Williams would not mistake
banter for malice and would not confuse exuberance with in-
timidation. Janice Schwenz testified that on the day of the
election Williams was being his “normal Anthony self,” mean-
ing boisterous and attention seeking. However, the brief note
which Schwenz provided to Moore, and upon which DeLancey
relied, did not include this context.
The discharge notice which Respondent provided to Wil-
liams stated, in part, that he had made “racially-charged com-
ments.” 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 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 potential-
ly divisive way.
Williams’ discharge notice stated that his actions violated
Respondent’s Rule 4.3. That rule states, in pertinent part:
Taylor Motors is committed to providing a work environment
that is free of discrimination and unlawful harassment. Ac-
tions, words, jokes or comments based on an individual’s sex,
race, ethnicity, age, religion, or any other legally protected
characteristic will not be tolerated.
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 indi-
vidual’s race and would be proscribed by Rule 4.3.
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 intimidat-
ed by your statements creating a hostile environment.” Even
assuming that Williams made the “hanging” remark, no evi-
dence indicates any listener believed he was going to get a rope
and attempt such a deed and, considering the totality of circum-
stances, no listener would reasonably interpret the statement as
a threat.
Additionally, the record does not establish either that em-
ployees felt intimidated or that the remark, if made, created a
hostile environment. The record does indicate some hostility,
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 Respond-
ent claimed and it would not constitute or be understood as a
threat. The record does 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 effects
of those remarks and based its discharge decision on that mis-
taken belief. Therefore, even if Williams had made an attempt-
ed joke about hanging, his 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 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 Wil-
liams violated Section 8(a)(1) of the Act. I recommend that the
Board so find.
Summary of Unfair Labor Practice Findings
Here is a summary of the unfair labor practice findings and
conclusions discussed above:
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 for Region 10 approved, a stipulation
to set aside election, which nullified the results of the Novem-
ber 6, 2014 election. On January 15, 2015, pursuant to this
TAYLOR MOTORS, INC. 29
stipulation, the Board conducted a second election.
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. Additionally, there were 3 challenged
ballots, too few to affect the outcome.
The Union filed objections. On February 20, 2015, the Re-
gional Director issued a report on objections and order directing
hearing, which designated 5 of the objections for 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 Ob-
jection 5 and 7 before the hearing.
The remaining objections concern the conduct alleged in
Complaint paragraphs 8, 9, 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.
Conduct which violates Section 8(a)(1) is, a fortiori, conduct
which interferes with the exercise of a free and untrammeled
choice in an election. Arkema, Inc., 357 NLRB 1248, 1250
(2011), citing Dal-Tex Optical Co., 137 NLRB 1782, 1786–
1787 (1982).
Accordingly, I find merit to the Union’s objections and rec-
ommend that the Board set aside the January 15, 2015 election.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, including posting the notice to em-
ployees attached hereto as Appendix A. In addition to physical
posting of paper notices, the notice shall be distributed elec-
tronically, such as by email, posting on an intranet or internet
site, and/or other electronic means, if the Respondents custom-
arily communicate with its employees by such means. J. Picini
Flooring, 356 NLRB 11 (2010).
Respondent must offer Anthony Williams immediate and full
reinstatement to his former position or to a substantially equiva-
lent position if his former position is no longer available, and
make him whole, with interest, for all losses he suffered be-
cause of the unlawful discrimination against him. The make-
whole relief shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
The Respondent also must (1) submit the appropriate docu-
mentation to the Social 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 addi-
tional 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
(2014).
The Respondent must also rescind the overly-broad confi-
dentiality/nondisclosure agreement and notify all employees
that it is no longer binding or in effect.
The complaint seeks, as part of the remedy, an order requir-
ing that the Respondent reimburse Williams for all search-for-
work and work-related expenses regardless of whether he re-
ceived 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 liti-
gated after the issuance of a 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 “shall specifically and in detail show,
for each employee, the backpay periods broken down by calen-
dar 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 infor-
mation.” (Italics added).
In many cases, the parties are able to agree on what consti-
tutes full compensation and 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 appropri-
ate treatment of interim expenses—when no complete backpay
formula has been alleged.
In the complaint, the government also seeks an order requir-
ing 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 repre-
sentative. This 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
1. The Respondent, Taylor Motors, Inc., is an employer en-
gaged 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.
3. The Respondent violated Section 8(a)(1) of the Act by in-
terrogating employees about their union activities; by requiring
employees to sign an overly-broad confidentiali-
ty/nondisclosure agreement which reasonably would cause
employees to believe that they could not engage in certain ac-
tivities, such as the discussion of wages and working condi-
tions, 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 man-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
ner alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended11
ORDER
The Respondent, Taylor Motors, Inc., Fort Campbell, Ken-
tucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(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 wag-
es or other terms and conditions of employment or to engage in
other activities protected by the National Labor Relations Act.
(c) Discouraging employees from engaging in protected ac-
tivity by suspending, discharging, or taking other adverse ac-
tion against employees who have engaged in such activity and
did not engage in serious misconduct during the course of that
protected activity.
(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 choos-
ing, or to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind its confidentiality/nondisclosure agreement and
provide each employee who received and/or signed this agree-
ment a written notification that the agreement has been rescind-
ed.
(b) Offer Anthony Williams immediate and full reinstate-
ment to his former job, of, if that position is no longer availa-
ble, 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 with F.
W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound
interest as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
(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.
(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.
(f) Within 14 days after service by the Region, post at its fa-

11 If no exceptions are filed as provided by Section 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended 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.
cilities in , copies of the attached notice marked “Appendix.”12
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 10, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the 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 November 24, 2014. Excel Container, Inc., 325 NLRB
17 (1997).
(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.
Dated Washington, D.C., July 14, 2015
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 obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our employ-
ees in the exercise of these rights, guaranteed to them by Sec-
tion 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 em-
ployees already have signed.

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
TAYLOR MOTORS, INC. 31
WE WILL NOT suspend or discharge employees for discussing
the Union with employees or engaging in other activities pro-
tected 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 posi-
tion, without prejudice to seniority or any other rights or privi-
leges 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 dis-
charge of Anthony Williams and WE WILL, within 3 days there-
after, notify him that the discharge will not be used against him
in any way.
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.