Trus Joist MacMillan

National Labor Relations Board - Board Decisions

Mar 5, 2004

341 N.L.R.B. 369 (N.L.R.B. 2004)

TRUS JOIST MACMILLAN 369
Trus Joist MacMillan and United Mineworkers of
America, and Dane Wood Moore, III. Cases 6–
CA–29855, 6–CA–30823, 6–CA–30855, 6–CA–
30868, and 6–CA–30915
March 5, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On June 6, 2000, Administrative Law Judge Arthur J.
Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting brief.
They also filed answering briefs and reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions,1 and briefs
and has decided to affirm the judge’s rulings, findings,2
and conclusions only to the extent consistent with this
Decision and Order.
Introduction
The Respondent manufactures and sells wooden struc-
tural components at its facility in Buckhannon, West
Virginia. The several unfair labor practice complaint
allegations in this case arise from two unsuccessful cam-
paigns by United Mineworkers of America from late
1997 through mid-March 1999 to organize employees at
this facility. We agree with the judge, for the reasons set
forth in his decision, that the Regional Director properly
revoked an earlier informal settlement agreement resolv-
ing some of these complaint allegations. We also agree
with the judge that the Respondent violated Section
8(a)(3) and (1) of the Act by discharging or disciplining
prounion employees Roger Allman, Joe Hall, Mylinda
Casey Hayes, Troy Stire, and Larry Wilson, and that it
violated Section 8(a)(1) by discharging Supervisor Dane

1 There are no exceptions to the judge’s dismissals of the alleged
unlawful (1) threat that the Respondent would “come down hard” on
employees who worked for the Union; (2) disciplinary warning to
Joseph Hall; and (3) interrogation of Roger Riley.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We also find without merit the Respondent’s allegations of bias on
the part of the judge. On our full consideration of the record, we find
no evidence that the judge prejudged the case, made prejudicial rulings,
or demonstrated bias in his credibility resolutions, analysis, or discus-
sion of the evidence.
Moore.3 However, we reverse the judge and dismiss the
8(a)(3) and (1) allegations involving employee Roger
Harris. For the reasons discussed in section 1 below, we
find that Harris engaged in misconduct forfeiting the
Act’s protection.
The judge’s dismissal of the complaint’s remaining
8(a)(1) allegations pertaining to employee interrogations,
the imposition of a plant access restriction, and the main-
tenance of a no-solicitation/no-distribution rule. We af-
firm the dismissal of the interrogation allegations but, for
the reasons discussed in sections 2 and 3 below, we re-
verse the judge and find that the Respondent maintained
an unlawful no-solicita-tion/no-distribution rule at the
Buckhannon plant after March 13, 1998, and it unlaw-
fully restricted employee Joe Hall’s access to areas
within the Buckhannon plant in March 1999.
1. Discharge of Roger Harris
Harris worked as a quality assurance technician under
the direction of Supervisor Moore until the latter’s dis-
charge on August 27, 1999.4 As previously stated, we
affirm the judge’s finding that the Respondent unlaw-
fully discharged Moore for refusing to commit the unfair
labor practice of giving Harris an unwarranted evaluation
downgrade because of his prominent union activities
during both union organizing campaigns at the Buckhan-
non plant. Moore’s discharge occurred less than a week
after he notified Harris about the Respondent’s illegal
plan to get rid of Harris and to give him an unsatisfactory
rating. Harris did not want Moore, a well-respected su-
pervisor, to risk his job on Harris’ behalf. When Thomas
Booker, the assistant plant manager and interim technical
director in the quality assurance department, telephoned
and told Harris about Moore’s termination earlier that
Friday, Harris was shaken. He testified “that floored me
. . . just like a never ending bad dream here.” Over the
3 The judge drew adverse inferences against the Respondent for its
unexplained failure to call Supervisors Terry Leigh, David Marple, and
Cletus Wamsley as witnesses in the hearing. We agree that the judge
properly inferred that their testimony would not have been favorable to
the Respondent’s theory of the case. However, we do not rely on the
judge’s speculation that Marple may have been told to fire Hayes by
higher level management. Such evidence is unnecessary to uphold the
8(a)(3) violations involving Hayes. Member Schaumber also does not
rely on a similar speculative statement made by the judge that Leigh
was directed to discipline Allman by higher management.
In analyzing Hayes’ situation, the judge found that even assuming
Hayes’ conduct merited discipline, there was no explanation why she
was terminated, as opposed to being given another written warning.
While Member Schaumber finds that the Respondent’s progressive
discipline system could sustain a discharge action following two writ-
ten warnings, he agrees with the judge that the circumstances in Hayes’
situation establish unlawful discrimination.
4 All dates in this part of our decision are in 1999 unless otherwise
indicated.
341 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
weekend, Harris decided to meet with Booker on Mon-
day. He planned to ask Booker for an explanation for
Moore’s termination and to call Booker a liar if Booker
refused to give him a reason.
On August 30, Harris approached Booker, and re-
quested a meeting with Booker, Human Resource Man-
ager Alexis Butcher, and Supervisor David Marple. In
the ensuing meeting in Butcher’s office, Harris repeat-
edly asked Booker for an explanation of Moore’s termi-
nation. When Booker refused, citing confidentiality con-
cerns, Harris insisted that Moore was wrongly termi-
nated. Harris then repeatedly called Booker a “liar” and
a “lying bastard.” He did so despite continued warnings
that he stop. Butcher’s testimony, which the judge cred-
ited, also reveals

[t]hat [Harris] felt pretty strongly about Dane [Moore]
and his supervisory roles and his capacity and how
Dane did his job. He continued to say and, then it got a
little harsher, he said . . . I think on numerous times that
Tom [Booker] was [Plant Manager Len Komori’s]
prostitute. That he had prostituted himself. Wanted to
know how much Len was paying him. How much
prostitutes got paid now a days. I remember he
grabbed his crotch and said something to the effect of, I
have your manhood hanging right here.

When Harris’ verbal attacks continued, Plant Manager
Komori was summoned to Butcher’s office and informed
about what had happened during the meeting. Komori
asked Harris if he had called Booker a liar, a lying bas-
tard, and a prostitute. Harris conceded that he had, but
denied purposely grabbing his crotch. After a brief pri-
vate caucus to discuss the matter with Booker and
Butcher, Komori terminated Harris for insubordination.
The judge found that Harris’ behavior on August 30
was provoked by the Respondent’s unlawful discharge of
Moore on August 27. According to the judge, the provo-
cation had been “extraordinarily extreme,” and it was
reasonable for Harris to assume he would soon be fired
or constructively discharged by Booker. The judge fur-
ther found that Harris’ protest of Moore’s termination
constituted protected activity and that neither Harris’
premeditated conduct (i.e., calling Booker a liar) or his
unplanned, more offensive outbursts (calling Booker a
prostitute, a lying bastard, and grabbing his crotch) dur-
ing the August 30 meeting removed the Act’s protection.
Thus, the judge concluded that the Respondent violated
Section 8(a)(3) and (1) by discharging Harris.
The parties do not take exception to the judge’s finding
that Harris’ conduct was concerted activity under the
Act. However, not all concerted activities are protected
under Section 7 of the Act. Thus, where an employee
engages in indefensible or abusive conduct, his concerted
activity will lose the protection of the Act. Whether the
Act’s protection is lost depends on a balancing of four
factors: (1) the place of the discussion between the em-
ployee and the employer; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. See Atlantic Steel Co.,
245 NLRB 814 (1979). Applying these factors, we find
that Harris’ August 30 conduct cost him the Act’s protec-
tion.
With respect to the place of the discussion, Harris’
August 30 meeting with Booker was held in the human
resource manager’s office. In one respect the locus of
Harris’ outburst was one that would have a less disrup-
tive effect than it would have if it had occurred on the
plant floor, in the presence of employees.5 However, in
another respect, the locus accentuated and exacerbated
the insubordinate nature of Harris’ offensive outbursts.
Thus, as found by the judge, Harris’ purpose in request-
ing the August 30 meeting was to embarrass Booker be-
fore management. For this reason, at Harris’ instigation,
the meeting included other managers. From this stand-
point, a meeting in management offices, before other
managers, would accentuate and exacerbate the disrup-
tive effect of Harris’ outburst. Accordingly, in light of
these countervailing factors, we find that this factor nei-
ther weighs in favor nor against the Act’s protection for
Harris’ conduct.
Regarding the subject matter of the discussion, Harris
initiated the meeting to formally complain to Booker.
The meeting focused on Moore’s discharge. From his
prior conversations with Moore, Harris knew that
Moore’s discharge had been precipitated by Moore’s
refusal to further the Respondent’s unlawful campaign
against union advocates by downgrading Harris’ monthly
evaluation rating. Thus, the August 30 meeting initiated
by Harris involved the matter of the right of employees
to engage in protected union activity and the unlawful
removal of a supervisor who refused to violate this
right.6 However, it was not intended by Harris to be a
peaceful but firm demonstration of his concern about
what had occurred. Harris’ intended to confront Booker,
call him a liar, and embarrass him before management.
Under these circumstances, Booker reasonably should
have known that the discussion would escalate. On bal-

5 Compare Aluminum Co. of America, 338 NLRB 20, 21 (2002)
(employee lost the protection of the Act where his profane outbursts
took place in employee breakrooms).
6 See Thore, Inc., 296 NLRB 859, 870 (1989) (discharge of supervi-
sor for refusing to honor employer’s request to lower performance
evaluations of known union adherents so as to provide employer with a
discriminatory pretext to fire them).

TRUS JOIST MACMILLAN 371
ance, however, we find this second Atlantic Steel fac-
tor—the subject matter of discussion—weighs slightly in
favor of the Act’s protection.
With respect to the nature of the employee’s outburst,
Harris’ remarks were personal, highly offensive, and
escalated to the point that Plant Manager Komori had to
be summoned to the meeting. Harris lodged a series of
profane verbal attacks directed against Booker in the
presence of Butcher and Marple. Harris repeatedly ac-
cused Booker of being a “prostitute” for Plant Manager
Komori and called Booker a “lying bastard.” Harris even
went so far as grabbing his crotch and telling Booker that
he had Booker’s manhood “hanging right here.” Not-
withstanding this provocation, Booker, Butcher, Marple,
and Komori merely sought to stop Harris’ attacks, with-
out engaging in conduct that reasonably would escalate
it.
Employers and employees have a shared interest in
maintaining order in the workplace, an order that is made
possible by maintaining a certain level of decorum.7
Disorder can have a detrimental impact on morale, pro-
ductivity, and discipline. Viewed from this necessary
perspective, Harris’ behavior far exceeded what can be
expected or tolerated. Despite the fact that the confronta-
tion took place away from the workfloor, its severity
added to its significance. Harris’ anger in reaction to
Booker’s unlawful actions did not give him license to
launch a planned, vituperative personal attack, with foul
language and obscene gestures, against Booker in the
presence of other supervisors, including a woman, to
undermine Booker’s managerial authority.8 After Har-
ris’ conduct, it would be unreasonable to expect that
Komori, Marple, Butcher, and (most especially) Booker
would be able to work effectively with Harris. In these
circumstances, this third Atlantic Steel factor—the nature
of the employee’s outburst—weighs heavily towards
Harris losing the Act’s protection.
Finally, we consider the last Atlantic Steel factor—
whether the outburst was, in any way, provoked by an
employer’s unfair labor practice. The judge found, and
we agree, that it would not be unreasonable for Harris to
be more angered by the Respondent’s unlawful retalia-
tion against Moore for his refusal to wrongfully down-
grade Harris’ evaluation than Harris would have been by

7 See Woodruff & Sons, 265 NLRB 345, 347 (1982) (“Although the
Board long has recognized that an employee’s right to engage in pro-
tected activity permits some leeway for impulsive behavior, this must
be balanced against the employer’s right to maintain order and re-
spect.”).
8 See Aluminum Co. of America, supra (employee’s repeated, sus-
tained, ad hominem profanity removed the Act’s protection); Piper
Realty Co., 313 NLRB 1289 (1994) (employee’s insubordination and
display of repeated profanity removed the Act’s protection).
a direct retaliation against him. Harris was aware of the
Respondent’s animosity toward his union activities and
the Respondent’s attempts to use Moore to get rid of
him. Just a week before Harris’ August 30 meeting,
Moore told Harris that Moore was told by Booker that
(1) Moore’s peers expected Moore to “take care of” Har-
ris by isolating him and making him feel unwelcome, (2)
Moore might be promoted to technical director if he co-
operated with Booker in getting rid of Harris, and (3)
Harris was going to be given an unsatisfactory teamwork
evaluation because of Harris’ union activities. Thus,
Harris reasonably viewed Booker as being responsible
for Moore’s discharge and (with Moore now out of the
way) as being ready and willing to pursue the same
unlawful course against Harris. However, our agreement
with the judge that Harris’ anger toward Booker was the
result of Moore’s termination is not the same as a finding
that there were no limits to Harris’ expression of his an-
ger,9 particularly, where, as here, it took place 3 days
later.
Harris’ offensive outburst was not a spontaneous or re-
flexive reaction to the news about Moore’s termination.
Rather, on Friday afternoon when Booker first told Har-
ris about Moore’s termination, Harris said nothing offen-
sive, and reacted calmly. Afterwards, however, while he
had time to reflect, Harris engaged in considerable plan-
ning as to how, when, and where he would respond to the
news. Based on this planning, Harris did not confront
Booker when he first returned to work on Monday, but
merely requested that Booker schedule a meeting with
him and other named managers. Thus, it was Harris who
orchestrated a confrontational, face-to-face meeting on a
date of his own choosing. In that meeting, Harris delib-
erately launched into a vituperative personal attack on
Booker, replete with obscene language and gesture.10
Thus, it was Harris, and not the Respondent, who orches-
trated this encounter on August 30 that gave rise to his
insubordinate and profane outburst. Therefore, the At-
lantic Steel factor regarding the provocation by an em-
ployer’s unfair labor practice does not favor the Act’s
protection for Harris. The provocation is balanced off by
Harris’ premeditation.
To summarize, our analysis reveals that one factor—
the nature of the outburst—weighs heavily in favor of
Harris losing the protection of the Act. Two factors—the
place of the discussion and the provocation by unfair
labor practices—are neutral. The remaining factor—the
9 See NLRB v. Steinerfilm, 669 F.2d 845, 852 (1st Cir. 1982)
(“[T]here are . . . limits to employee insubordination, even when pro-
voked.”).
10 See J.P. Stevens v. NLRB, 547 F.2d 792 (4th Cir. 1976) (premedi-
tated disruptive employee conduct not protected by the Act).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
subject matter of the discussion—leans slightly in favor
of the Act’s protection for Harris. In our view, this last
factor (in favor of the Act’s protection) is outweighed by
the nature of the outburst because the latter factor
strongly favors a loss of protection.11 Accordingly, we
find that Harris lost the protection of the Act during his
meeting with Booker on August 30. Therefore, his dis-
charge did not violate Section 8(a)(3) and (1) of the Act.
2. No-solicitation/no-distribution rule
The complaint alleges that the Respondent announced,
promulgated, and maintained an overly broad no-soli-
citation/no-distribution rule. The judge categorized these
allegations in terms of the Respondent’s conduct occur-
ring before and after March 13, 1998. He found that
Section 10(b) of the Act barred consideration of the pre-
March 13 activity, including promulgation of the rule,
and the General Counsel waived his contention that the
post-March 13 activity was unlawful. The General
Counsel does not challenge the judge’s 10(b) finding for
the pre-March 13 activity, but he excepts to the judge’s
failure to find an 8(a)(1) violation based on the post-
March 13 activity. We find merit in these exceptions.
We agree with the General Counsel that the “mainte-
nance” of the Respondent’s no-solicitation/no-distri-
bution rule after March 13, 1998, is before the Board for
consideration. This matter is clearly encompassed in the
amended charge in Case 6–CA–29855 filed on Septem-
ber 24, 1998, and in paragraph 9(a) of the outstanding
amended consolidated complaint in the instant cases.
Contrary to the judge, we find that the General Counsel
never withdrew or sought to withdraw this complaint
allegation at the hearing or in his posthearing brief to the
judge. In fact, the General Counsel introduced evidence
of the rule’s maintenance after March 13, 1998.

11 Compare Felix Industries, 331 NLRB 144 (2000), enf. denied and
remanded 251 F.2d 1051 (2001), on remand 339 NLRB No. 32 (2003).
In that case, employee Yonta used profanity during a grievance-related
telephone conversation with a supervisor. The Board majority found
that one Atlantic Steel factor—the nature of the outburst—did not out-
weigh the other factors favoring the protections accorded Yonta under
the Act. Chairman Battista dissented because, in his view, Yonta’s
outburst constituted outrageous misconduct and outweighed the other
Atlantic Steel factors, thereby causing Yonta to lose the Act’s protec-
tion. Id. at slip op. 4. While Member Schaumber did not participate in
Felix Industries, he agrees with Chairman Battista’s dissent. Neverthe-
less, Felix Industries can be distinguished from the present case. In
Felix Industries, Yonta’s conduct was not as egregious as Harris’ in-
subordinate and profane conduct. Calling your manager boss a “f—ing
kid,” on the telephone away from the workplace, as did Yonta in Felix,
is less insubordinate than accusing your superior of being a prostitute,
and graphically illustrating your comment, as did Harris. In addition,
Harris’ outburst was made after the passage of 3 days, i.e., after a
chance to “cool down” to his boss while Yonta’s statements were made
immediately to his supervisor.
The Respondent’s rule at issue is set forth in its em-
ployee handbook for its Buckhannon plant employees.12
According to the testimony of Human Resource Director
Butcher, this rule was in existence since before March
1998 through at least March 2000. She further testified
that the Respondent never openly disavowed or revoked
this rule.
On its face, the rule prohibits distribution of literature
“in all working areas and all areas of all plant property at
all times.” It is undisputed that the rule includes distribu-
tion of union literature and that the Respondent has so
informed employees about the rule’s applications to such
situations. The Board has consistently held that “[a] rule
prohibiting distribution of literature on employees’ own
time and in nonworking areas is presumptively invalid.”
See TeleTech Holdings, Inc., 333 NLRB 402, 403
(2001), and cases cited therein. When a rule is presump-
tively unlawful on its face, the employer bears the burden
to show that it communicated or applied the rule in a way
that conveyed a clear intent to permit distribution of lit-
erature in nonworking areas during nonworking time.
Ichikoh Mfg., 312 NLRB 1022 (1993), enfd. 41 F.3d
1507 (6th Cir. 1994).
Uncontradicted evidence shows that on numerous oc-
casions during the campaign leading to the first election
on March 12 and 13, 1998, the Respondent’s managers
and supervisors repeatedly told employees that distribu-
tion of union literature or solicitation on behalf of the
Union at any time and anywhere on the company prem-
ises would be considered a violation of the company’s
no-solicitation/no-distribution rule, and would subject
violators to discipline. Thus, not only did the Respon-
dent’s communications fail to rebut the presumptively
unlawful nature of its no-distribution rule, they also gave
an equally overbroad and unlawful meaning to its no-
solicitation rule, which was presumptively lawful on its
face.
The Respondent made no attempt to alter this over-
broad interpretation of the no-solicitation/no-distribution
rule, which it continued to maintain after March 13,
1998, and throughout the Union’s second campaign in
1999. Employee witnesses testified that they curtailed
their union activities at the plant during the second cam-
paign so as to not run afoul of the invalid no-
12 The rule states:
Solicitation by any associate of another associate during the
working time of either associate for any reason is strictly prohibited,
unless otherwise prohibited by law. Distribution of advertising ma-
terials, handbills or other literature is prohibited in all working areas
and all areas of all plant property at all times. . . . Solicitation of a
Trus Joist MacMillan sponsored event, which have been pre-
approved by the Human Resource Manager or Plant Manager, is
permissible.

TRUS JOIST MACMILLAN 373
solicitation/no-distribution rule. Furthermore, as re-
counted in the next section of our decision, the Respon-
dent demonstrated its adherence to the rule as previously
interpreted when it restricted prounion employee Hall’s
movement during the final days of the second campaign
and warned that he would be presumed to be soliciting
for the Union in violation of its no-solicitation rule if he
did not abide by the restriction.
In its defense, the Respondent argues that no employee
was ever disciplined for violating the rule. However, the
absence of actual discipline does not negate either the
rule’s clear unlawful interpretation or its maintenance
throughout the period from March 13, 1998, to the hear-
ing date. Indeed, the absence of any discipline in these
circumstances may speak more to the effectiveness of the
overboard rule in chilling employees’ exercise of their
Section 7 rights under the Act, as confirmed by employee
witness testimony. Thus, we find that the maintenance
of the no-solicitation/no-distribution rule after March 13,
1998, violated Section 8(a)(1) of the Act.
3. Restriction of plant access
George Dolmat served as maintenance manager until
he was demoted to plant engineer in January 1999. The
complaint alleges that in March 1999 Dolmat unlawfully
restricted employees’ access within the facility in order
to prevent them from discussing the Union. In its an-
swer, the Respondent admitted Dolmat’s supervisory and
agency status at all material times.13 The judge dis-
missed this allegation for lack of evidence. We reverse
the judge.
Before the Union’s organizing campaign began, main-
tenance employees, including Joseph Hall, enjoyed free
access within the Buckhannon plant and could discuss a
variety of nonwork-related subjects in work areas during
work time provided these discussions did not interfere
with production. Hall testified that during the closing
days of the Union’s second organizing campaign in
March 1999, Dolmat repeatedly called Hall into his of-
fice. Dolmat instructed Hall to restrict his movement
within the facility or it would be presumed that Hall was
soliciting employees to support the Union in violation of
Respondent’s no-solicitation rule.
We find that Dolmat, acting as the Respondent’s agent,
departed from company past practices of allowing free
plant access and restricted Hall’s movement within the
facility to curtail employees’ union discussions. An em-
ployer violates Section 8(a)(1) of the Act when it prohib-

13 In its exceptions, the Respondent belatedly contends that Dolmat
was no longer a statutory supervisor at the time of the alleged incident.
We find no basis for setting aside the Respondent’s prior admission of
Dolmat’s supervisory status.
its employees from discussing union-related matters
while allowing discussion of other nonwork related sub-
jects during working time. See McGaw of Puerto Rico,
Inc., 322 NLRB 438, 449 (1992); Willamette Industries,
306 NLRB 1010 fn. 2 (1992). Accordingly, we find Dol-
mat’s statements violated Section 8(a)(1) of the Act.
AMENDED CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(1) of the Act
by maintaining an unlawful no-solicitation/no-distribu-
tion rule after March 13, 1998.
2. The Respondent, through its agent, George Dolmat,
violated Section 8(a)(1) of the Act by restricting em-
ployee Joe Hall’s access within the Respondent’s facility
in order to prevent him from discussing the Union in
March 1999.
3. The Respondent, through Supervisor Terry Leigh,
violated Section 8(a)(1) of the Act by informing em-
ployee Troy Stire in the summer of 1999 that he was
targeted for reprisal due to his union activities.
4. The Respondent violated Section 8(a)(1) of the Act
by discharging Supervisor Dane Moore on August 27,
1999, for refusing to commit an unfair labor practice.
5. The Respondent violated Section 8(a)(3) and (1) of
the Act by discharging or disciplining the following em-
ployees on the dates set forth below opposite their re-
spective names:

Roger Allman August 23, 1999
Joe Hall May 12, 1999
Mylinda Casey Hayes August 12, 1999
Troy Stire May 11, 1999
Larry Wilson June 4, 1998

6. The remaining allegations of the amended consoli-
dated complaint are dismissed.
ORDER
The National Labor Relations Board orders that the
Respondent, Trus Joist MacMillan, Buckhannon, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining overly broad rules that prohibit em-
ployees from engaging in union solicitation during non-
working time and from engaging in union solicitation or
distribution in nonworking areas.
(b) Restricting an employee’s access within the Re-
spondent’s facility in order to prevent him from discuss-
ing the Union.
(c) Informing an employee that he was targeted for re-
prisal due to his union activities.
(d) Discharging a supervisor for refusing to commit an
unfair labor practice.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
(e) Discharging, disciplining, or otherwise discriminat-
ing against its employees for supporting the Union or any
other labor organization.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its unlawful no-solicitation/no-distribution
rule, remove it from the employee handbook, and advise
employees in writing that the rule is no longer being
maintained.
(b) Within 14 days from the date of the Board’s Order,
offer Joe Hall, Mylinda Casey Hayes, and Dane Moore
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Roger Allman, Joe Hall, Mylinda Casey
Hayes, Dane Moore, and Troy Stire whole for any loss of
earnings and other benefits resulting from their dis-
charges or discipline, less any net interim earnings, plus
interest.
(d) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful dis-
charges or disciplinary actions of Roger Allman, Joe
Hall, Mylinda Casey Hayes, Dane Moore, Troy Stire,
and Larry Wilson and, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges or disciplinary actions will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, time-
cards, personnel records and reports, and all other re-
cords, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Buckhannon, West Virginia, copies of the
attached notice marked “Appendix.”14 Copies of the
notice, on forms provided by the Regional Director for
Region 6, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of this proceeding, the
Respondent has gone out of business or closed the facil-
ity involved in this proceeding, it shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 4, 1998.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.

MEMBER WALSH, concurring and dissenting in part.
I agree with my colleagues in all respects except their
finding that union activist Roger Harris lost the protec-
tion of the Act and was lawfully discharged for his mis-
conduct while protesting the unlawful discharge of his
supervisor for attempting to protect Harris from the Re-
spondent’s unlawful conduct in trying to rid itself of
prounion employees. I agree with the administrative law
judge that Harris was unlawfully discharged.
Facts
The essential facts about Harris’ discharge are con-
tained in section 1 of my colleagues’ opinion.
Applicable Principles
As recently reiterated on remand from the D.C. Circuit
Court of Appeals in Felix Industries,1 the Board exam-
ines and balances four factors set forth in Atlantic Steel2
in determining whether an employee’s misconduct while
engaged in protected activity causes him to lose the pro-
tection of the Act: (1) the place of the discussion; (2) the
subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was,
in any way, provoked by an employer’s unfair labor
practice.
Application of Principles
After carefully weighing the Atlantic Steel factors, I
find, contrary to my colleagues, that Harris did not forfeit
the protection of the Act by his misconduct during pro-
test of the Respondent’s unlawful discharge of Harris’
supervisor, Dane Moore, just 3 days before.
With respect to the place of the discussion, Harris’
meeting with Assistant Plant Manager Booker, Human
Resource Manager Butcher, and Supervisor Marple on
Monday, August 30, 1999, was conducted in Butcher’s
1 331 NLRB 144 (2000) (Felix I), enf. denied and remanded 251
F.3d 1051 (2001), on remand 339 NLRB No. 32 (2003) (Felix II).
2 245 NLRB 814 (1979).

TRUS JOIST MACMILLAN 375
private office, away from the plant floor and out of the
sight and hearing of any employees. Harris’ misconduct
during the meeting therefore had no effect on the Re-
spondent’s interest in maintaining order and decorum on
the work floor. Accordingly, the place of Harris’ mis-
conduct does not even begin to carry it beyond the scope
of the protection of the Act.
Regarding the subject matter of the discussion, Harris
asked for the meeting to get an explanation for why
Booker discharged Supervisor Moore. The meeting fo-
cused on Moore’s discharge, which Harris already knew
was caused by Moore’s rightful refusal to downgrade
Harris’ performance evaluation in furtherance of the Re-
spondent’s unlawful campaign to get rid of prounion
employees like Harris. Thus, the subject matter of Har-
ris’ meeting with Booker, Butcher, and Marple was the
Respondent’s unlawful discharge of Supervisor Moore
for trying to protect the fundamental rights of employees
to engage in prounion activity. Indeed, during the meet-
ing, Harris told the management officials present that he
was going to let both the National Labor Relations Board
and the Union, as well as the other employees, know
what the Respondent had done to Moore—it fired him
for refusing to participate in the Respondent’s unlawful
campaign to rid itself of prounion employees. As with
the place of the discussion, then, the subject matter of
this discussion does not remove it from the protection of
the Act.
Finally, I fully agree with the judge’s balancing of the
third and fourth Atlantic Steel factors: (3) the nature of
Harris’ outburst and (4) the extent to which it may have
been provoked by the Respondent’s unlawful discharge
of Harris’ supervisor, Moore. While I do agree with my
colleagues that Harris’ conduct moments before he was
discharged weighs toward a loss of the protection of the
Act,3 I also agree with the judge that the provocation for
Harris’ behavior was extraordinarily extreme: the Re-
spondent’s unlawful discharge of Harris’ well-respected
supervisor just 3 days earlier, because Moore steadfastly
refused to give Harris an unsatisfactory rating on his per-
formance evaluation in furtherance of the Respondent’s
unlawful scheme to get rid of several prominent union
leaders—including Harris.
Harris was fully aware of the Respondent’s animosity
toward his union activities and the Respondent’s at-
tempts to use Moore to get rid of him. Just a week be-

3 Although I agree with my colleagues’ ultimate conclusion that the
nature of Harris’ conduct weighs toward forfeiting the protection of the
Act, I do not share all of their value judgments concerning the conduct.
For example, my colleagues seem somewhat patronizingly concerned
with the fact that a female supervisor was present during Harris’ out-
burst, a fact I find entirely irrelevant.
fore Harris’ August 30 meeting with management,
Moore candidly informed Harris that Moore had been
told by Booker that (1) Moore’s managerial peers ex-
pected Moore to “take care of” Harris by isolating him
and making him feel unwelcome; (2) Moore might be
promoted to technical director if he cooperated with
Booker’s plan to get rid of Harris; and (3) Harris was
going to get an unsatisfactory teamwork evaluation. (The
next day, and again 2 days after that, Moore expressly
refused to obey Booker’s instruction to give Harris an
unsatisfactory rating, because, as Moore told Booker,
Moore believed that Booker’s instruction was motivated
by the Respondent’s desire to retaliate against Harris
because of his union activity.)
In consideration of these circumstances, the judge
found that it would not be unreasonable for Harris to be
more infuriated by the Respondent’s unlawful retaliation
against Moore for not mistreating Harris than by a direct
retaliation by the Respondent against Harris himself. I
agree. Thus I find, under these aggravated and unusual
circumstances, that Harris’ spontaneously and repeatedly
accusing Booker of being a “prostitute” for Plant Man-
ager Komori, calling Booker a “lying bastard,” and even
grabbing his crotch and telling Booker that Harris had
Booker’s manhood “hanging right here,” were provoked
by the Respondent’s unlawful termination of Moore just
3 days earlier for going to bat for Harris in a doomed
effort to keep the Respondent from running Harris out of
his job in retaliation for his support of the Union.
Until his union involvement, Harris had been consid-
ered a valued, long-term employee. His behavior on the
day of his discharge was out of character for him and
stood in stark contrast to his otherwise good work record
over nearly 4-1/2 years.
In sum, balancing Harris’ behavior and the Respon-
dent’s unlawful provocation, I first acknowledge that
Harris’ behavior did weigh toward a loss of the protec-
tion of the Act. But I also find that Harris’ behavior was
substantially provoked by the Respondent’s unlawful
discharge of Harris’ supervisor for refusing to unlawfully
discriminate against Harris in retaliation for his support
for the Union. Accordingly, I find, on balance, that Har-
ris’ behavior ultimately did not carry him beyond the
scope of the protection of the Act. I conclude, therefore,
that Harris’ discharge violated Section 8(a)(3) and (1) of
the Act.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain a no-solicitation/no-distribution
rule which prohibits you from engaging in union solicita-
tion during nonworking time and from engaging in union
solicitation or distribution in nonworking areas.
WE WILL NOT restrict your access within our plant in
order to prevent you from discussing the United Mine-
workers of America (the Union).
WE WILL NOT inform you that you are targeted for re-
prisal due to your union activities.
WE WILL NOT discharge our supervisors for refusing to
commit an unfair labor practice.
WE WILL NOT discharge, discipline, or otherwise dis-
criminate against you for supporting the Union or any
other labor organization.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL rescind our unlawful no-solicitation/no-
distribution rule, remove it from our employee hand-
book, and advise you in writing that the rule is no longer
being maintained.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joe Hall, Mylinda Casey Hayes, and Dane
Moore full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Roger Allman, Joe Hall, Mylinda Ca-
sey Hayes, Dane Moore, and Troy Stire whole for any
loss of earnings and other benefits resulting from their
discharges or disciplinary actions, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges or disciplinary actions of Roger Allman,
Joe Hall, Mylinda Casey Hayes, Dane Moore, Troy Stire,
and Larry Wilson and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the discharges or disciplinary actions will not be
used against them in any way.
TRUS JOIST MACMILLAN

Patricia Daum, Esq., for the General Counsel.
Richard W. Gallagher, Joseph M. Price, and Michelle Duncan,
Esqs. (Robinson & McElwee, LLP), of Charleston, West
Virginia, for the Respondent.
Gene Saunders, International Representative, of Charleston,
West Virginia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J AMCHAN, Administrative Law Judge. This case
was tried in Clarksburg, West Virginia, on February 1–3, 28–
29, and March 1–2, 2000. The charges were filed on June 15,
1998, August 26, September 9, September 14 and October 7,
1999, and the amended consolidated complaint was issued
January 14, 2000.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Trus Joist MacMillan (TJM),1 a limited partner-
ship, manufactures and sells wooden structural components at
its facility in Buckhannon, West Virginia. From this facility, it
annually sells and ships goods valued in excess of $50,000
directly to points outside the State of West Virginia. Respon-
dent admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union, the United Mineworkers of America
(UMW or UMWA), is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The First Organizing Campaign
Trus Joist MacMillan built its plant at Buckhannon, West
Virginia, in 1994 and 1995. The facility began operation in
1995, under Len Komori, its current plant manager. At Buck-
hannon, logs are debarked and treated and then are processed
depending on their quality. High-grade material is dried and
then is processed further to produce Respondent’s microllam
product. Lower grade material is put into strands of material
which are glued, heated, and pressurized to make TJM’s paral-
lam product. Both are used as structural members in construc-
tion. Approximately 275 hourly production and maintenance
employees work at Respondent’s Buckhannon facility.

1 Trus Joist MacMillan, which operates a number of other facilities
in the United States and Canada, was recently purchased by Weyer-
haeuser Corporation.

TRUS JOIST MACMILLAN 377
The United Mine Workers conducted two unsuccessful orga-
nizing drives at the Buckhannon plant. Company management
learned of the first drive in late 1997. On February 12, 1998,
TJM received a list from the Union identifying 32 employees as
members of the Union’s in-house organizing committee.2 Len
Komori conducted formal and informal strategy meetings on
how to respond to the organization efforts of the UMW. At one
of these meetings, he told his managers and supervisors not to
allow the distribution of union literature anywhere on company
property and to prohibit any prounion campaigning on com-
pany property. Later during the campaign, Komori told his
supervisors and managers that the Company may not be correct
in prohibiting prounion campaigning on company property, but
to continue prohibiting it nevertheless.3 At least some of the
supervisors and managers followed his instructions.
During February 1998, David Vincent, one of Respondent’s
shift managers, told approximately 14 employees on his crew
that the Company would probably come down hard on employ-
ees who worked for the Union.4 Several other supervisors
and/or managers interrogated employees as to whether they
were for or against the Union. These include Shift Manager
Keith Barbo who interrogated Kenneth Mealy and Roger Riley,
and Larry Harvey, Respondent’s shipping manager, who inter-
rogated John Mundy.
The Union lost the NLRB representation election, which was
conducted on March 12 and 13, 1998, by a margin of 143 to
107; 5 ballots were challenged.5 After the election, however,
Komori continued to conduct formal and informal strategy
sessions regarding the issues that arose during the union cam-
paign. At a meeting in the office of the Human Resources Di-
rector, Alexis Butcher, following the campaign, George
Sander,6 Respondent’s plant engineer, suggested that the com-
pany “fire all the troublemakers and let our lawyers earn their
keep.” Komori responded, “[W]hy don’t we just fire all the
Rogers, that way it won’t be discriminatory.”7 Four members

2 GC Exh. 49 only contains 24 names. I infer from the testimony of
Alexis Butcher at Tr. 1105–1108, and Larry Wilson at Tr. 861, that
there is another sheet with eight names on it that was received by Re-
spondent on or about February 12.
3 The testimony, to this effect, of a former supervisor, George Dol-
mat, who was fired by Respondent in March 1999, is uncontradicted.
4 Joy Parker’s testimony in this regard is uncontradicted. Vincent
did not testify.
5 The General Counsel’s unopposed motion to reopen the record to
receive joint stipulations is granted.
6 Sander should not be confused with Gene Saunders, the Charging
Party’s representative at this hearing.
7 Neither Komori nor Butcher, nor any other witness contradicted
George Dolmat’s testimony regarding this exchange. “Although the
Board may dismiss or disregard uncontroverted testimony, it may not
do so without a detailed explanation,” Missouri Portland Cement Co. v.
NLRB, 965 F.2d 217, 222 (7th Cir. 1992). I have no reason to dismiss
the testimony of Dolmat in this regard. Although he was fired by Re-
spondent, his testimony is consistent with that of Moore, Ruth (who
apparently left Respondent voluntarily), and Williams (who is still
employed as a supervisor at TJM). Moreover, the testimony of Assis-
tant Plant Manager Booker lends credibility to testimony of the General
Counsel’s witnesses regarding Respondent’s expressions of animus.
Booker concedes that he asked Dane Moore how he knew Roger Harris
wasn’t soliciting for the Union while working and how Moore would
of the union in-house committee are known by the name of
Roger: Harry “Roger” Allman, Roger Harris, Roger Riley, and
Roger Zickefoose. Allman and Harris were two of the most
active union supporters, as was Joseph Hall, another of the
alleged discriminatees in this case. Respondent was aware of
their prominent role in the union campaign.
Sometime during the first campaign or shortly thereafter,
Quality Assurance (QA) Supervisor Dane Moore had a discus-
sion with Roger Harris, a QA technician and prominent union
supporter, about Harris’ compensation. Harris contended that
he and QA technician Kevin Strader should have gotten raises
earlier than production employees, who were hired by Respon-
dent sometime after Harris and Strader. Moore prepared a
memo recommending that Harris and Strader be given such
raises retroactively. Moore and his immediate supervisor,
Technical Director David Ruth, took the memo to a meeting
with Komori and Alexis Butcher. Komori did not adopt
Moore’s suggestion. During the meeting, Komori said that
given Harris’ union activity he wasn’t sure that he could con-
tinue to work at Trus Joist.8
During the same time frame, David Ruth had a meeting by
himself with Komori. At some point, Komori opined that
Roger Harris’ union activism “did not mesh with TJM’s basic
business values, with TJM’s culture, and that he really did not
need to fit in.” Continuing, Komori told Ruth that Harris was
not a team player and didn’t need to be at the plant. Komori
repeated these views at another meeting attended by Ruth.9
B. The Legal Standard for Analyzing the Discharges and Dis-
ciplinary Measures Taken Against the Alleged Discriminatees
In order to prove a violation of Section 8(a)(3) and (1), the
General Counsel must show that union activity has been a sub-
stantial factor in the employer’s adverse personnel decision. To
establish discriminatory motivation, the General Counsel must
show union or protected concerted activity, employer knowl-
edge of that activity, animus or hostility towards that activity
and an adverse personnel action caused by such animus or hos-
tility. Inferences of knowledge, animus and discriminatory
motivation may be drawn from circumstantial evidence as well
from direct evidence.10 Once the General Counsel had made an
initial showing of discrimination, the burden of persuasion
shifts to the employer to prove its affirmative defense that it
would have taken the same action even if the employee had not
engaged in protected activity. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (lst Cir. 1981).

ensure that such solicitation wouldn’t happen again. Finally, Dolmat’s
testimony and that of many other General Counsel witnesses is sup-
ported by the fact that Respondent had a number of witnesses available,
such as Komori and Butcher, to contradict him and did not do so, MDI
Commercial Services, 325 NLRB 53, 60 (1997).
8 Moore’s testimony about this meeting was not contradicted by ei-
ther Komori or Butcher.
9 It is not clear whether either of these meetings is the meeting about
which Dane Moore testified. However, Komori did not deny that he
made the statements attributed to him by Ruth.
10 Flowers Baking Co., 240 NLRB 870, 871 (1979); Washington
Nursing Home, 321 NLRB 366, 375 (1966); W. F. Bolin Co. v. NLRB,
70 F.3d 863 (6th Cir. 1995).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
With regard to the 8(a)(1) and (3) violations alleged in this
case, Respondent’s knowledge of the discriminatees’ union
activity, except that of Mylinda Casey Hayes, is established by
clear and uncontradicted direct and circumstantial evidence.
Respondent’s animus towards this activity is also established
by direct, as well as circumstantial evidence. This includes the
statements by Komori to Moore and Ruth regarding Roger
Harris’ union activities, and his suggestion that TJM simply
“fire all the Rogers.” Animus and discriminatory motive is also
established by the statements made by Assistant Plant Manager
Thomas Booker and other supervisors, notably Terry Leigh,
after the second union campaign, and the obviously pretextual
reasons given for some of the personnel actions taken by Re-
spondent.

Discriminatory motivation may reasonably be inferred from a
variety of factors, such as the company’s expressed hostility
towards unionization combined with knowledge of the em-
ployees’ union activities; inconsistencies between the prof-
fered reason for discharge and other actions of the employer;
disparate treatment of certain employees with similar work
records or offenses; a company’s deviation from past prac-
tices in implementing the discharge; and proximity in time be-
tween the employees’ union activities and their discharge.

W.F. Bolin Co. v. NLRB, 70 F. 3d 863, 871 (6th Cir. 1995).
As noted by the Court of Appeals for the Ninth Circuit in
Shattuck Denn Mining Corp. v. NLRB, 366 F.2d 466, 470 (9th
Cir. 1966):

Actual motive, a state of mind, being the question, it is seldom
that direct evidence will be available that is not also self-
serving. In such cases, the self-serving declaration is not con-
clusive; the trier of fact may infer motive from the total cir-
cumstances proved. Otherwise no person accused of unlaw-
ful motive who took the stand and testified to lawful motive
could be brought to book. Nor is the trier of fact-here a trial
examiner-required to be any more naïf than is a judge. If he
finds that the stated motive for a discharge is false, he cer-
tainly can infer that there is another motive. More than that,
he can infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where, as in this case, the
surrounding facts tend to reinforce that inference.

Accord: Fast Food Merchandisers, 291 NLRB 897, 898
(1988); Fluor Daniel, Inc., 304 NLRB 970, 971 (1991).
Each of the alleged violations must be established independ-
ently and Respondent’s defense to each alleged violation must
also be analyzed independently. However, in analyzing each
allegation, the entire context of the situation must be consid-
ered. This includes other established unfair labor practices,
which are highly relevant in determining Respondent’s mo-
tive—particularly, as in this case, where they establish extreme
hostility to unionization and employees’ efforts to organize,
NLRB v. DBM, Inc., 987 F. 2d 540 (8th Cir. 1993); Reeves
Distribution Service, 223 NLRB 995, 998 (1976).
C. The Termination of Larry Wilson11
1. Background
Larry Wilson was hired by Respondent in June 1995; within
a few months he began working as an electrician. His name
was on the in-house organizing committee list sent to TJM and
he openly supported the Union at work. At a company cam-
paign meeting, when Plant Manager Komori began to discuss
the wages and benefits paid to the UMWA president, Wilson
asked Komori what he was paid. Komori responded that it was
none of his business.
For a number of years, Wilson was supervised by Darryl
King, who criticized Wilson’s job performance on a number of
occasions. On October 3, 1997, King completed a performance
evaluation for Wilson covering the period June 26, 1996,
through June 26, 1997. On a scale of 0–3, zero being unsatis-
factory, King gave Wilson an overall evaluation of “1.” A
rating of “1” is defined as “mostly meets expectations.” King
summarized Wilson’s performance as follows:

Motivation needs improvement, needs to be more of a leader
than a follower during breakdown situations. Good basic
troubleshooting skills, needs to improve complex knowledge
of machinery, more attention needs to be given to the “lead-
ers” of a breakdown to acquire a better knowledge for correc-
tive actions.

Wilson was also criticized for being slow in his work by a
number of people. As a result, he requested a transfer to the
maintenance department in mid-to-late 1997. This request was
rejected. In a memo to Human Resources Director Alexis
Butcher, Darryl King stated, “I also explained that I needed him
in the electrical department as a valuable associate.” Between
June and October 1997, on monthly team matrix evaluations,

11 On June 15, 1998, the Union filed a charge alleging that Respon-
dent committed an unfair labor practice in discharging Wilson. Subse-
quent to the filing of a complaint, the matter was informally settled.
Wilson waived reinstatement and TJM paid him $15,000. The settle-
ment contained an exculpatory clause stating the TJM did not admit to
any violation of the Act. It also provided for compliance with the terms
of a notice to employees, which TJM agreed to post at its facility. That
notice includes a promise not to threaten employees with job loss or
terminate employees because of union membership, activities, or sym-
pathies. By promising to comply with the terms of the notice, TJM in
turn promised not to interfere with, restrain, or coerce employees in the
exercise of their rights under the NLRA. On November 30, 1999, the
NLRB Regional Director revoked the settlement agreement.
The General Counsel has not sought reinstatement or any additional
financial compensation for Wilson. It seeks only that the Board find
that Respondent terminated Wilson in violation of Sec. 8(a)(3) and (1)
of the Act, GC Br. at 79. Since, the General Counsel seeks no addi-
tional remedy, I do not fully appreciate the reasons for his litigation of
the Wilson discharge. However, the Board has long held that a settle-
ment agreement may be set aside if there has been a failure to comply
with the provisions of the settlement or if postsettlement unfair labor
practices are committed, Tower City Concrete, 317 NLRB 1313 (1995).
Given the fact that I find a number of postsettlement unfair labor prac-
tices, I conclude that the Regional Director was entitled to revoke the
settlement agreement and seek a finding that Wilson was discriminato-
rily discharged.

TRUS JOIST MACMILLAN 379
King gave Wilson mostly “2” ratings, i. e., “consistently meets
expectations.”
King issued Wilson a “Written Discussion” on August 1,
1997, for falling asleep in the control cab of the lathe ma-
chine.12 Wilson was issued an “Associate Warning Report” by
Respondent’s maintenance manager, George Dolmat, on Janu-
ary 8, 1998, after Dolmat was instructed to do so by Plant Man-
ager Len Komori. The warning report was issued on the basis
of a incident during which Wilson heard a press operator page
the heating and energy department several times. Wilson tele-
phoned the operator and informed him that the paging system
could not be heard in heating and energy, which is located in a
separate building from the main production plant. Wilson told
the operator that he would have to contact that department by
telephone. At the end of this conversation Wilson called the
operator, “dumb ass.”
In March 1998, Dolmat accused Wilson of pressuring an
employee to remove a “Vote No” button from her clothing.
Wilson denied the accusation and in turn complained that Myl-
inda Casey had attempted to deface and remove his UMWA
button.13
D. Incident Resulting in Larry Wilson’s Termination
On May 30, 1998, at about 5 a.m., Wilson got sawdust in his
eye, while working the midnight shift. He reported it to his
shift manager, Terry Leigh, who took him to the safety depart-
ment, where they filled out a safety report and had his eye was
washed out. Wilson completed his shift at about 7 a.m. and
started home. En route, Wilson’s eye began to bother him and
he turned around and drove to the emergency room at a local
hospital, where a physician removed two pieces of sawdust
from his eye.
Wilson did not notify Respondent that he went to the emer-
gency room until he reported to work approximately 12 hours
later and so informed Shift Manager Leigh.14 On Monday
morning, June 1, Wilson also discussed his eye injury and the
fact that he had been to the hospital after work with Cletis
Wamsley, who had replaced Darryl King as electrical supervi-
sor.
On Thursday, June 4, Wilson was summoned to the office of
Human Resources Director Alexis Butcher. When he entered

12 Respondent’s progressive discipline system or “General Im-
provement Guideline Process” is set forth at page 30 of its Associate
(Employee) Guidebook, GC Exh. 43. The first step in this process is an
“Associate Coaching and Improvement Session.” The second step is an
“Associate Written Discussion” typically used for repeated or willful
violations of a more serious nature. The third step is an “Associate
Written Warning” issued as followup for continued disregard of coach-
ings or discussions, or as a first instance sanction, if the violation of
company rules or policy is sufficiently serious. A written warning
delays an employee’s next pay increase by 6 months and excludes the
employee from eligibility for a gainsharing check in the month in
which the warning is received. Terminations must by authorized by the
plant manager.
13 Casey (now Mylinda Casey Hayes) is also an alleged discrimina-
tee in this case. She strongly opposed the Union in the first campaign
but supported it in the second.
14 I credit Wilson’s account of the events of May 30–31, which is not
contradicted. Terry Leigh did not testify in this proceeding.
her office, George Dolmat, the maintenance manager, was in
the office with Butcher. Butcher informed Wilson that he was
being terminated for not following the chain of command, not
getting permission to go to the emergency room or informing
Respondent that he was going to the emergency room. Dolmat
told Wilson that his failure to inform Respondent about his trip
to the emergency room was the “straw that broke the camel’s
back” after the “dumb ass” warning. Butcher conducted the
benefit portion of the meeting. When the meeting ended, Wil-
son, who was angry, looked at Butcher and said, “if you think I
will get even, I will.” He was then escorted out of the plant.
Other than Len Komori, it is not clear that anyone had input
in the decision to terminate Larry Wilson’s employment.15
Komori testified that, “we considered the entire series of events
in Mr. Wilson’s work career . . . within the plant.” He specifi-
cally stated that Wilson was not terminated solely because he
went to the doctor without a supervisor. Respondent’s position,
however, appears to be that this incident, when considered in
conjunction with Wilson’s performance problems between June
1996 and June 1997, the sleeping incident 9 months earlier, and
the “dumb ass” remark almost 5 months earlier, led it to termi-
nate him.
The General Counsel has established that Respondent termi-
nated Larry Wilson in retaliation for his union activity. There
is no dispute that Respondent was aware of Wilson’s union
activity. His name was on the in-house committee list. He
stood out amongst the individuals on the in-house list by his
15 George Dolmat, who was terminated by Respondent in March
1999, testified about Wilson’s termination. However, from Dolmat’s
testimony and a memorandum he wrote on June 5, it is not clear that
Dolmat was anything other than the bearer of bad news. There is no
evidence that he recommended termination or played any role in the
decision to terminate Wilson. Similarly, there is no evidence that
Alexis Butcher either recommended termination or had any meaningful
input in the decision to terminate Wilson, as opposed to imposing a
lesser form of punishment or no punishment. Respondent did not call
either Terry Leigh or Cletis Wamsley as witnesses; there is no evidence
that either of them recommended that Wilson be terminated or had any
input in this decision.
In this regard, I sustained the General Counsel’s objection to R. Exh.
18, which purports to be a June 4 memorandum authored by Terry
Leigh. Although the reporter indicates that I received this exhibit dur-
ing Alexis Butcher’s testimony, my review of the record indicates that I
never received it. Moreover, the memo on its face indicates that Leigh
had no idea that Wilson was going to be terminated.
I also received, over the strenuous objection of the General Counsel,
R. Exh. 23, which purports to be notes authored by Cletis Wamsley on
May 31 and June 1, 1998. I received these pursuant to Rule 803(6) of
the Federal Rules of Evidence. Regardless of whether or not I was
correct in receiving these notes, I do not accord them any weight with
regard to the truth of the matters asserted therein. These assertions
were denied by Wilson and Respondent offered no reason for its failure
to call Wamsley, who still works for it in a supervisory capacity. I
credit Wilson’s testimony over the evidence contained in these notes,
regardless of whether they were properly admitted. I therefore find that
Respondent has not established that Wilson responded to Wamsley’s
inquiry about his eye by stating that it was “round” or that he disparag-
ing told Wamsley something to the effect that if an employee had an
arm cut off, TJM would make the employee bleed to death while he or
she found a telephone.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
question to Komori regarding Komori’s compensation. Finally,
the fact that Respondent accused him of pressuring another
employee to remove a “Vote No” badge, establishes that it
knew that Wilson was an active supporter of the Union.
Animus and discriminatory motive are established by uncon-
tradicted testimony that Komori made statements indicating a
desire to get rid of employees because of their role in the union
campaigns. A finding of discrimination is also supported by
Komori’s expressed desire to get rid of Roger Harris, as well as
the other unfair labor practices committed after the second elec-
tion. Additionally, the pretextual reasons given for Wilson’s
discharge are relevant both in concluding that the General
Counsel established his initial case and in concluding that Re-
spondent did not meet its burden of proving that it would have
fired Wilson even if he hadn’t engaged in union activities.
Respondent failed to offer a persuasive nondiscriminatory rea-
son for terminating Wilson.
Komori conceded that it was not inappropriate for Wilson to
go to the emergency room when his eye started to bother him
again on the way home. He merely stated that Wilson was
under an obligation to let the company know that’s what he was
doing. Komori made no attempt to explain how Wilson vio-
lated company policy in a material way,16 since Wilson re-
ported his injury to his supervisor, Leigh immediately and in-
formed Leigh that he had obtained additional medical treatment
as soon as he reported for his next shift, 12 hours later.
Komori’s very general explanation for Wilson’s termination
does not satisfy Respondent’s burden under Wright Line. In-
deed, it strongly suggests pretext. Although, Komori said that
TJM considered Wilson’s work history in its entirety, there is
no indication whether, or to what extent, Respondent weighed
Darryl King’s opinion that Wilson was “a valued associate”
who couldn’t be spared from the electrical department. It is
also unclear whether, and to what extent, Komori considered
Wilson’s alleged display of disrespect to Wamsley. Assuming
that input from Wamsley contributed to Wilson’s termination, I
infer from Respondent’s unexplained failure to call Wamsley as
a witness that his testimony, if offered, would not have been
favorable to Respondent’s case, International Automated Ma-
chines, 285 NLRB 1122, 1123 (1987).
Moreover, there is no evidence that Respondent made an
adequate investigation of either the allegations contained in the
Wamsley memo or the circumstances surrounding Wilson’s

16 Respondent offers no justification as to why Wilson’s conduct
would warrant termination even in conjunction with other factors.
There is no suggestion, for example, that Wilson was trying to make
Respondent responsible for an injury sustained outside of work, or in
any way was attempting to defraud TJM. Even if Wilson violated
company policy, his violation appears de minimis in view of the fact
that he reported his injury to his supervisor as soon as it occurred and
notified him of his trip to the emergency room as soon as he returned to
the plant.
“To the extent that [Wilson] . . . engaged in misconduct, it appears to
be so trivial and insubstantial, and Respondent’s severe punishment of
discharge so extreme as to raise the strong inference of retaliatory mo-
tive,” Detroit Paneling Systems, 330 NLRB 1170, 1171 (2000). This
principle is also applicable to the discharge of Joseph Hall, which is
analyzed later in this decision.
failure to call TJM from the hospital. TJM’s decision to fire
Wilson without such an adequate investigation, lends support to
an inference of unlawful motivation and shows that Respondent
was not truly interested in determining whether misconduct had
actually occurred, Washington Nursing Home, 321 NLRB 363,
375 (1996).
Respondent has disciplined and discharged a significant
number of employees in 1998 and 1999. There doesn’t appear
to be any statistical significance in the number of employees
discharged who supported the Union.17 However, there is also
no evidence as to what standards TJM used in determining
when termination was warranted. A comparison of Wilson’s
employment record with several other employees, for whom
there is no evidence of support for the Union, reveals disparate
treatment of Wilson from which I also infer retaliatory motive.
The employee whose situation appears most analogous to
Wilson is Charles Horner, who received a written warning on
October 3, 1997, for failing to tell his immediate supervisor
before seeing a physician for an on-the-job injury. Horner’s
violation of this rule was more consequential than Wilson’s
because on the basis of his visit to the doctor, Horner did not
show up for work for his next shift, without contacting his su-
pervisor.18 Horner could have worked on a light duty assign-
ment. Like Wilson, Horner’s prior work record with TJM was
not spotless. In May 1997, he had a verbal discussion about his
poor attendance and tardiness. In August, Horner received a
written discussion for poor attendance (GC Exh. 52).
The employee whose record best demonstrates that Respon-
dent has no hard and fast rules as to when termination is appro-
priate is press operator Eric Mitchell. In December 1998, his
supervisor discussed with Mitchell his harassment of a fellow
employee with the use of foul language. On March 9, 1999,
Mitchell was reprimanded for engaging in horseplay at the
infeed of the Parallam press. Shortly thereafter Mitchell was
reprimanded for engaging in horseplay in the control room. On
April 15, 1999, after receiving a change in assignments from
his supervisor, Mitchell told him that he wished he’d make up
his “damn mind.” These incidents resulted in Mitchell being
issued an Associate Discussion.
On June 24, 1999, Mitchell was issued a formal written
warning. In the 2 months since his discussion, he had been
reprimanded for not showing proper respect for his fellow em-
ployees, for inadequate performance as a control room operator
and not completing and documenting microwave leak checks.
On July 7, 1999, Mitchell was issued a second written warning
for failure to complete his tasks as a parallam outfeed operator.
On September 1, 1999, Mitchell received a “0” (unsatisfactory)
on his annual performance evaluation.
A followup review of Mitchell’s performance on September
16, 1999, revealed no significant improvement. On November
5, 1999, Mitchell was demoted from control room/outfeed op-
17 Alexis Butcher testified that of 24 employees discharged in 1998
and 1999, only 5 were on the in-house list. Her statistics do not include
Mylinda Casey Hayes, who alleges she was discharged in retaliation for
her union activities, nor Scott McNemar, who testified that he was fired
on his last day of work—after having notified TJM that he was quitting.
18 Horner did leave a voice mail message at the plant.

TRUS JOIST MACMILLAN 381
erator on a parallam team to offbearer on a dryer team. This
resulted in a salary decrease of 22 cents per hour. There is no
explanation for the extreme forbearance accorded to Mitchell
when compared with the terminations of Larry Wilson, Joseph
Hall, and Mylinda Casey Hayes.
In conclusion, I find that Respondent violated Section 8(a)(3)
and (1) because the General Counsel has established that Larry
Wilson would not have been discharged but for his union ac-
tivities. TJM has not rebutted the General Counsel’s case.
That many employees without union sympathies have been
disciplined or discharged does not at all undercut a finding of
discrimination. There is no evidence as to why these nonunion
employees were discharged. It may well be that their conduct
clearly merited discharge.
At page five of its brief, TJM argues that discriminatory mo-
tive is also belied by the fact that 29 of 34 employees on the in-
house list still work at its plant, that some have received promo-
tions, and all have received at least one pay raise. First of all,
the record indicates that only 21 of 32 employees on the in-
house list remain at the Buckhannon facility. Five or six were
terminated in 1998 and 1999 and at least six others have re-
ceived discipline (Allman, Mealy, Stire, Mike Walker, and
Terry Bates). Moreover, discriminatory motive, otherwise
established is not disproved by an employer’s proof that it did
not take similar actions against all union adherents, Master
Security Services, 270 NLRB 543, 552 (1984). This is particu-
larly so in the instant case where some of the discriminatees
were the most open and vocal supporters of the Union.
E. The Second Union Organizing Campaign
Union organizing activity ceased at the Buckhannon plant
until late November or early December 1998. Employees sup-
porting the Union were much more secretive than during the
first campaign. Unlike the first campaign, a list of the Union’s
in-house organizing committee was not sent to Respondent.
Only a few employees, including alleged discriminatees Roger
Harris and Roger Allman, openly wore union paraphernalia,
such as T-shirts and badges. Distribution of union literature was
done clandestinely.
The Union filed a representation petition on February 11,
1999. The second election was conducted on March 18 and 19,
1999. The day prior to the election, Roger Allman and Larry
Wilson stood in front of the plant’s main entrance for the entire
day with picket signs encouraging employees to vote for the
Union.19 Roger Harris served as an observer at the election for
the Union; Robert Hoover, a quality assurance technician, who
was Harris’ partner on his shift, served as an observer for Re-
spondent. The Union lost the second election by a margin of
142 to 95. Thirty-five ballots were challenged and one was
void.
F. The Discipline and Discharge of Joseph Hall
1. Hall’s work record and two disciplinary warnings
Joseph Hall, a maintenance mechanic, worked for Respon-
dent from June 1995 until May 12, 1999, when he was fired.
On his last annual performance evaluation, for the period June

19 Wilson had been fired 9 months earlier.
1996 to June 1997, Hall received a “2” rating (on a scale of 0–
3), i.e., “consistently meets expectations.” All evaluations of
Hall’s performance prior to June 1997 were also favorable.
Hall was on the in-house committee list supplied to Respon-
dent in February 1998. He was regarded by management as
one of the leaders of the organizing effort. In January 1998,
Hall received an associate warning report for performing a
repair without locking out the electrical power for the equip-
ment he was fixing. This is a serious safety violation and the
General Counsel does not allege that this warning was adminis-
tered in a discriminatory manner.
Fourteen months later, on March 9, 1999, Hall received a
second warning report. This warning issued only 9 days before
the second election and is alleged as a violation of the Act in
paragraph 19 of the complaint. This warning was issued by
Green End Superintendent Scott Williams, who was in a break-
room with several other employees on the evening of March 9,
when Hall entered. Hall told a fellow employee that the ex-
haust vent for one of the heaters was off in an area in which the
employee’s pregnant and estranged girlfriend worked and that
she might be exposed to carbon monoxide. The record indi-
cates that this remark was a crude and tasteless attempt at hu-
mor.
Scott Williams asked Hall if he had fixed the vent. Hall re-
plied that he didn’t have a work order. Williams told him he
didn’t need a work order. Hall said he reported the problem to
several people but that they apparently didn’t care enough to fix
it. He also said that not caring seemed to be the prevailing
attitude at the plant; that he used to care about people, but that
management “broke him of that.”
Williams later went to the area in which the heater with the
detached vent was located and determined that it was not turned
on. Williams issued Hall a warning for failing to fix the vent or
notify an electrician of the problem. The warning was also
issued because Williams concluded that Hall was trying to
cause unrest and division amongst the work force, and that Hall
was disrespectful towards Williams and the employee whose
girlfriend worked near the heater.
I dismiss the complaint paragraph alleging a violation with
regard to this warning. Respondent, through Scott Williams,
offered a nondiscriminatory explanation for the warning, which
I credit. In crediting Williams' testimony I am particularly
influenced by the fact that he resisted efforts by Thomas
Booker in June to pressure him into taking retaliatory measures
against union adherents. I therefore determine that the record
does not establish discriminatory motivation in the issuance of
the warning of March 9.
G. Joseph Hall’s Termination
On the evening of May 8, 1999, Hall and several other em-
ployees were told that they would be spending most of the night
repairing the parallam press, which had broken down. While
the employees waited for further instructions, Gene Zara, a
maintenance superintendent, who normally worked days,
showed up.
A discussion ensued between Zara, Hall, and other employ-
ees as to why Zara was at the plant to supervise the parallam
press repair, as opposed to Terry Leigh or David Tallman, the

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
supervisor for the parallam press. Employees had heard that
Leigh and Tallman could not come to work because they had
consumed some unspecified amount of alcohol during the day
and therefore could not work pursuant to Respondent’s “zero
tolerance” policy with regard to alcohol consumption.
Hall remarked to Zara that he looked very tired. Zara re-
sponded that he was tired because he had spent the day cutting
weeds. Hall said that Zara should have put a message on his
answering machine that he had been drinking and therefore
couldn’t come to work. All present, including Zara, chuckled
at the remark. They then went to the parallam press and spent
the most of the night repairing it. Hall also worked at least one
more shift and then was off work Monday, May 10, and Tues-
day, May 11.20 When Hall reported to work on the evening of
May 12, his supervisor, Terry Leigh, ushered him to Alexis
Butcher’s office. Butcher read him a termination notice (GC
Exh. 13). Hall signed it and left.
This termination notice is signed by Terry Leigh, who is still
a supervisor at TJM (Tr. 232), but did not testify in this pro-
ceeding, and Alexis Butcher. Butcher testified, but offered no
explanation as to how and why Respondent decided to termi-
nate Joseph Hall. Len Komori testified that he made the deci-
sion to fire Hall:

What came to my attention was that the notes were placed, the
comments that Hall made about Dave Tallman and about
Terry Leigh. It was pretty much Terry Leigh that came to me
and was very upset about the comments made about him,
suggesting that he was, I suppose, an alcoholic, or that he had
a drinking problem, or that he just chose not to come in to
work that weekend, so he called and said, Hey, I’m having a
couple of beers in the backyard, so I just can’t come in. Call
somebody else.

And, so, as a result of that, we looked at the history again with
respect to documentation in the file, as to all the things that
would lead up to the process and, at some point we made a
determination whether or not someone should be let go or not.

Tr. 1145.
I do not credit Komori’s testimony. First of all, I infer from
Respondent’s failure to call Terry Leigh that if called, Leigh’s
testimony would have been adverse to TJM. International
Automated Machines, 285 NLRB 1122, 1123 (1987). How-
ever, my reasons for not crediting Komori go far beyond the
fact that Leigh was not called as a witness. Komori indicates
that he relied completely on the account of Leigh, who was not
present when Hall made his remarks. He did not interview
Zara, the management official who actually heard what Hall
said and was familiar with Hall’s tone and the context of the
remarks. As in Wilson’s case, Komori’s woefully inadequate
investigation of Hall’s alleged offense indicates that he wasn’t
interested in determining the truth but was merely looking for a
pretext to get rid of Hall.
More importantly, there is direct evidence that the reasons
for Hall’s discharge are pretextual. On May 11, the day before
Hall was fired, Troy Stire, another employee on the in-house

20 Hall was on the “B” team, which worked the following schedule:
2 days on, 2 days off, 3 days on, 2 days off, 2 days on, 3 days off.
list received a written warning, which is also at issue in this
case. On June 14, Stire went to Terry Leigh’s office to receive
his 30-day followup form for the written warning. Stire’s un-
contradicted testimony, which I credit, is as follows:

So when I went up to get this follow up Terry told me he said
“Troy you just need to be careful what’s going on.” I said
“Well what happened Terry?” He said “You know why this
happened as well as I do.” I said “What are you talking
about?” He said “You know why this happened.” He said
“You’ve got a bulls eye on your back you need to watch what
you say. Len don’t like you to start with” he said. I said
“What do you mean he don’t like me.” I said “I’ve never had
any problems with him.”

He said “Troy you know you’re targeted the same as others
are targeted.” He said “you guys with your name on that list
on the wall downstairs you’ve got to watch what you say and
do.” I said “This is over the union?” He said “You know it
is.” He said “I’ll never admit it.”

Tr. 519.
On this occasion or when presenting another followup, Leigh
told Stire that with regard to the Union, “I don’t have any prob-
lem with it but it’s out of my hands once it reaches the front
office . . . there’s nothing I can do about it.” From these re-
marks I conclude that Leigh never asked Komori to terminate
Joseph Hall. I conclude further that Komori made this decision
in furtherance of a plan to rid the plant of a sufficient number of
prominent union supporters that there would never be any fur-
ther union activity.
That such a plan existed is established through the testimony
of several of Respondent’s past and former supervisors. On
June 24, 1999, Assistant Plant Manager Thomas Booker en-
tered the office of Quality Assurance Supervisor Dane Moore.
Booker asked Moore for a brief evaluation of all the quality
assurance employees. When Moore got to Roger Harris, one of
the most prominent union adherents, Booker told Moore, “that
his peers wanted to know what was going to be done about
Roger Harris and that they were looking to me to do something
about him.”
According to Moore, whose uncontradicted testimony I
credit:

Booker talked at length about the threat that he thought that
the union posed to the plant and to the people that worked
there. He said that he valued his job at Trus Joist MacMillan
and that he hoped I valued my job at Trus Joist MacMillan
and that he thought that the union posed a considerable threat
to the future of the plant.

He went on to say that he believed that Mr. Harris would con-
tinue in his organizing efforts.

Tr. 101.
Moore accepted Booker’s invitation to go to lunch on June
28. During lunch, Booker told Moore that, contrary to what he
had said in their prior conversation, he had talked to Komori
about Roger Harris. He then reiterated that he believed the

TRUS JOIST MACMILLAN 383
Union posed a threat to the Company and noted that it had cost
TJM $100,000 to fight the second union campaign.21
Dane Moore went to Human Resources Director Alexis
Butcher to discuss his conversations with Booker. She sent an
e-mail to Len Komori forwarding Moore’s concerns that he was
being pressured to violate the law. Komori never responded to
the e-mail or gave any indication that he disavowed Booker’s
actions. From this I conclude that Booker was acting at Ko-
mori’s behest or with Komori’s approval in pressuring Moore
to retaliate against Roger Harris.
Direct evidence that Respondent had a plan to rid itself of a
number of union sympathizers is not limited to above-quoted
testimony regarding Harris and Stire. Scott Williams, who still
works at TJM, testified as follows:

Mr. Booker did come to me in June of last year [1999]. . . .
And what I remember Tom’s words to me were what are we
going to do about all this Union activity, or all these Union
employees.

Tr. 323.22
From the above-cited evidence I conclude that the General
Counsel has established that but for Joseph Hall’s union activ-
ity, he would not have been discharged on May 12, 1999.
Moreover, I find his discharge was part of concerted effort on
the part of Respondent, emanating from Komori or higher lev-
els of management to terminate the employment of enough
union sympathizers that no employee would ever try to organ-
ize the plant again.
H. Warning Report, Followup Reports and Yearly
Evaluation of Troy Stire
Troy Stire has been employed in the heating energy depart-
ment of the Buckhannon plant since July 1995. He works in a
building located 50 feet from the main plant and his job is to
keep the furnace at 530 degrees to heat the facility.
Stire was on the in-house committee list mailed to Respon-
dent in February 1998. During the first campaign Stire had a
conversation with TJM Vice President Pat Smith. It began
when Smith pointed to his UMWA badge and asked him to
give the Company a chance and not to vote for the Union for
the wrong reasons.
During the second union campaign, Stire talked to some
other employees to encourage them to support the Union, but
made no attempt to display his support in front of management
personnel. In fact, Alexis Butcher and Shift Manager David
Marple told him that they he heard he was no longer supporting
the Union; Stire did not correct them. Despite this, on the basis

21 Booker did not deny making any of these statements. Indeed, he
conceded that on June 24, he told Moore that he was concerned that
Roger Harris would continue to solicit employees to support the Union,
Tr. 954–955.
22 Since there was no union activity going on at the plant in June
1999, it is apparent that Booker was suggesting retaliation against un-
ion supporters. Williams, the green end superintendent, did not report
to Booker, which explains why he may not have been subjected to the
same intense pressure to retaliate to which Moore was subjected.
Moreover, it is not clear that Williams directly supervised any employ-
ees for which Respondent had as much interest in getting rid of, as it
did in getting rid of Roger Harris.
on Stire’s uncontradicted account of his conversations with
Terry Leigh and the pretextual nature of the reasons for his
discipline, I conclude that Len Komori either knew or sus-
pected that Stire was a union adherent and that discipline was
imposed upon him to discourage union activity by Stire and
other employees.
Stire had no disciplinary record with Respondent until May
11 (the day before Respondent fired Joseph Hall). On that day
he was issued a written warning by Maintenance Manager
Terry Leigh. As a result of this warning Stire lost his gainshar-
ing compensation for May 1999 and his scheduled pay increase
was delayed for 6 months.
A few days prior to May 11, Jim Coleman, who had recently
resigned his employment at TJM, asked Stire to pick up his
gainsharing check for him. On or about May 10, Stire went to
the office of payroll clerk Peggy Haddix and inquired if she had
this check; she replied that she did not have it. He then went to
Shirley Halle, a secretary, and inquired whether Coleman had
received a prize for submitting an innovative idea to Respon-
dent. Halle told him that she could not give out information
regarding Coleman’s entitlement to an innovation award with-
out Coleman’s permission. Stire was in Halle’s office no more
than 10 minutes and was pleasant in dealing with her.
That day or the next, Stire made one or two more inquiries to
both Haddix and Halle about Coleman’s gainsharing check
and/or Coleman’s entitlement to innovation prizes. He made a
second visit to Halle’s office. She testified that on this second
visit, which lasted less than 10 minutes that “he felt that the
company was doing something to really cheat Mr. Coleman out
of getting something that was owed to him.”23 Stire contacted
Halle once more on the telephone to inquire about Coleman’s
gainsharing check and/or innovation awards.
Shirley Halle testified that, without consulting her supervi-
sor, she went directly to Plant Manager Komori and told him
that she felt she was being pressured to give out confidential
information. Komori testified that after listening to Halle, he
contacted Terry Leigh and told him to look into the situation.
Thus, Respondent’s position is that Terry Leigh, who did not
testify, determined that Stire deserved “An Associate Written
Warning” with its attendant economic penalties. If I believed
Komori, his testimony would be fatal to Respondent on this
allegation. This is so because the Company’s failure to call
Leigh, the decision maker, to explain the reasons for the disci-
pline gives rise to an adverse inference, which I draw, that his
testimony, if offered, would not have been favorable to Re-
spondent’s case. Apart from the adverse inference, TJM’s fail-
23 I make no finding as to what Stire actually said to Halle. In re-
sponse to a leading question, “And, he made those comments to you?,”
she replied, “Yes, he did.” I find only that Halle concluded that Stire
thought the company was trying to cheat Coleman. Halle also testified
that Stire was “aggravated and very pushy.” On the basis of her testi-
mony, I conclude that Stire exhibited frustration with her answer.
There is no evidence that Stire was rude or hostile towards Halle per-
sonally. The warning report makes no such accusation. It merely
accuses Stire of showing disrespect for TJM by telling an employee
that Respondent had lost Coleman’s gainsharing check. If he made this
remark, it is unclear whether he made it to Haddix, who did not testify,
or to Halle, who did not testify to such a statement by Stire.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 384
ure to subject Leigh to cross-examination cannot be overlooked
in determining what actually transpired, Government Employ-
ees (BPO), 327 NLRB 676, 701 (1999).
However, I do not believe Komori’s testimony. Instead, I
credit Stire’s testimony that Terry Leigh told him that the warn-
ing was issued pursuant to directions from Komori and that it
was issued to retaliate against Stire. I find, based on this un-
contradicted testimony, that the warning was issued to retaliate
against Stire for his support for the Union and to restrain, inter-
fere with, and coerce Stire in the exercise of his Section 7
rights. I also find that followup reports given to Stire on June
14, July 15, and August 20, 1999, as a result of the written
warning, are also 8(a)(3) and (1) violations, as are references in
his August 20, 1999 performance appraisal to the warning.
With regard to the August 20 followup form, I find the refer-
ences therein to a loss of heat in the plant to be violative. Two
weeks earlier, the furnace had shut down because the oil was
not hot enough. Plant Engineer George Sander accused Stire of
shutting down the furnace deliberately.24 Several months ear-
lier, when heat energy operators had lobbied for a pay raise,
Stire tried to justify the raise by arguing that when the furnace
is down, the plant can’t operate.
Terry Leigh told Stire that Komori wanted to fire Stire over
the furnace shutdown. Leigh refused to do so, but told Stire
“You know they’re looking for a way to get rid of you.” I
deem this further evidence that the May 11 warning was part of
a larger plan to rid TJM of a sufficient number of union sup-
porters to end union organizing efforts for the foreseeable fu-
ture.
Finally, even assuming that Stire’s conduct in May war-
ranted discipline, Respondent has offered no evidence to ex-
plain why Stire was given an “Associate Written Warning” for
a first offense. According to page 30 of the employee hand-
book (GC Exh. 30), the penalty for first instance misconduct is
generally an “Employee Coaching and Improvement Session.”
Respondent has made no showing that Stire violated any
company rule by inquiring about Coleman’s gainsharing check
and innovation awards. It certainly has made no showing that
if he violated such a rule or policy that the violation was suffi-
ciently severe to warrant an “Associate Written Warning.”
I. The 10(b) Issue with Regard to Troy Stire’s Discipline
Prior to the hearing, Respondent moved to dismiss the com-
plaint allegations pertaining to Troy Stire on the grounds that
his May 11,1999 warning was issued more than 6 months prior
to the filing of a charge on his behalf.25 Charge in Case 6–CA–
30823 was filed by the Union on August 26, 1999, alleging that
Respondent had discharged Joseph Hall in retaliation for his
union activities. In the fall of 1999, the Union filed additional
charges concerning the discharges of Roger Harris and Mylinda
Casey Hayes, as well as a written warning issued to Roger
Allman. In November it amended the charge in Case 6–CA–
30823 to allege, among other things, that TJM was violating the
Act in continuing to refuse to employ Hall.

24 Sander is the management official who previously advised Komori
to get rid of the troublemakers and let our attorneys earn their keep.
25 The 10(b) argument with regard to Stire is not reiterated in Re-
spondent’s brief.
On January 14, 2000, the Union filed a second amended
charge alleging that TJM violated the Act in issuing the May
11, 1999 written warning to Stire, as well as the subsequent
followup reports and performance appraisal. The Board has
allowed litigation of untimely allegations if they are closely
related to the allegations of a timely filed charge, Columbia
Textile Services, 293 NLRB 1034, 1036 fn. 13 (1989); Redd-I,
Inc., 290 NLRB 1115, 1118 (1988). I find that the allegations
with regard to Stire are sufficiently related to the allegations in
the original charge to be considered. The warning to Stire was
issued the day before Hall was fired and was part of the same
plan to stifle further union activity at the Buckhannon plant.
J. The Termination of Mylinda Casey Hayes26
Mylinda Casey Hayes worked for Respondent from Decem-
ber 1995 until August 11, 1999, when she was fired. At the
time of her termination, Mylinda Hayes worked at the wrap and
strap station on the parallam production line. During the first
organizing campaign, she was demonstratively against the Un-
ion. Mylinda Hayes wore a “Vote No” button, was accused of
trying to deface and remove a UMWA button by Larry Wilson
and attended Respondent’s “victory party” after the first elec-
tion.
Sometime before the second election, Mylinda Hayes began
living with Bill Hayes, who worked at the wrap and strap sta-
tion on a different shift. Bill Hayes had openly supported the
Union during the first campaign. Mylinda Hayes supported the
Union during the second campaign and discussed her support
for the Union with coworkers. Respondent contends that it was
unaware of her support for the Union when it fired her.
K. Did Management Personnel See Mylinda Casey Hayes
Wear a Union Badge or Button During the Second
Organizing Campaign?
Mylinda Hayes testified that she wore a UMWA badge to
work daily during late February and early March 1999, just
prior to the second election. Her husband also testified that she
wore a union badge; so did Connie Blake, a crane operator,
who is still employed by Respondent. Blake testified that she
saw Mylinda Hayes with a UMWA button on at least two occa-
sions. Additionally, Mylinda Hayes testified that she was wear-
ing a union button when she had a somewhat acrimonious dis-
cussion with Shift Manager David Marple, a few weeks prior to
the second election.27 During that conversation, Marple raised
the subject of the Union. Hayes also testified that Len Komori
came to her workstation when she was wearing a union badge.
Komori did not contradict this testimony.
On the other hand, several witnesses testified they never saw
Hayes with a union button or badge. One of these witnesses,
Jeff Grey, was her regular supervisor, and saw Hayes on a daily
basis. Dane Moore, the quality assurance supervisor, who is
also an alleged discriminatee, also has no recollection of seeing
26 Throughout her employment this discriminatee was known as
Mylinda Casey. She married Bill Hayes a month after her termination.
27 Hayes’ testimony that she wore a union button while talking to
Marple was elicited by a leading question from the General Counsel.
On the other hand, Respondent never called Marple as a witness and
therefore this testimony is uncontradicted.

TRUS JOIST MACMILLAN 385
Mylinda Hayes wearing a union badge or any other indicia of
support for the Union. It is not clear, however, how often
Moore would have seen Mylinda Hayes. However, Delmar
Tenney, who worked daily with Mylinda Hayes at the wrap and
strap station, testified that he never saw her wearing a union
badge or button. I am convinced that Tenney, who was called
as a witness by Respondent, testified truthfully on this issue,
because he confirmed that Mylinda Hayes did indicate to him
her support for the Union during the second campaign. How-
ever, Tenney also testified that he saw Bill Hayes wear a
UMWA button during the second campaign, a fact not testified
to by Bill Hayes. Therefore, I am not certain that Tenney’s
perception and recollection as to which employees wore union
badges or buttons during the second campaign is accurate.
Although it is a close issue, I find that Mylinda Hayes wore a
union badge at times when she was observed by Marple and
Komori. It was incumbent upon Respondent to contradict her
testimony on this issue, if it was inaccurate. However, I also
conclude on the basis on circumstantial evidence that Respon-
dent knew that Hayes supported the Union and that it would not
have discharged her but for that support. This circumstantial
evidence includes the evidence that Respondent was aware of
Mylinda’s relationship with Bill Hayes, a known union sup-
porter, Respondent’s extreme hostility towards unionization
and the lack of any substantial explanation for Mylinda’s dis-
charge.
Although the quality of Mylinda Casey Hayes’ work was
usually very good, Respondent disciplined her numerous times
during her employment. She had continual trouble getting
along with her coworkers, which was documented by her su-
pervisors as early as 1996. In March 1997, she received a
documented verbal warning for being too bossy and constantly
getting into arguments with fellow employees. She had two
documented discussions in October 1997.
Hayes received a “1” rating on her annual evaluation for the
period December 1996 to December 1997. Her supervisor, Jeff
Grey, noted that her teamwork, attitude and behavior all needed
to improve. On December 12, 1998, Respondent issued Hayes
a written warning for teasing another employee and then be-
coming belligerent with her coordinator during a discussion
about her light duty limitations.28 During this exchange, Hayes
told her coordinator that, “I am so sick of this f—king bullshit.”
As a result of this warning, Hayes lost her gain sharing eligibil-
ity for December 1998, and her next pay increase was delayed
for 6 months. On her annual evaluation for the period Decem-
ber 1997 to December 1998, Hayes received another “1” rating.
The Company’s 30, 60, and 90-day followup reports to
Hayes’ written warning are all very favorable to her. During
this period Hayes was also commended for preventing the
shipment of the wrong product to a customer. The followup
reports coincide with the second union organizing campaign.
L. Mylinda Casey Hayes’ Last Day at Work for Respondent
On August 10, 1999, Mylinda Casey Hayes was stung by a
bee on her left ring finger at home. She reported to work on

28 Hayes was on light duty for an extended period of time after car-
pal tunnel surgery on both wrists.
August 11 at the wrap and strap station on the parallam produc-
tion line. That day she was working on a three-person crew
with Delmar Tenney and Mark Riggs. Generally, one person in
the crew operated a computer, while the other two employees
wrapped and strapped the parallam product for shipment.
Shortly after the shift began, David Marple, the shift man-
ager that evening,29 took Tenney off the wrap and strap crew
and sent him to operate different equipment. Hayes went to see
Marple and told him that because of the bee sting and resulting
swelling of her finger she could not wrap the parallam. Marple
told her that if she couldn’t do her job she had to go home.
Hayes said she could operate the computer. Marple told her
that if she couldn’t perform all the functions at the wrap and
strap station she had to leave the plant.
Hayes protested that if Marple sent her home the wrap and
strap station would be even more short-handed. Marple pointed
to a list on the wall and told her there were a lot of employees
he could get to replace her. Hayes asked why he couldn’t have
one of those employees do the job Marple sent Tenney to do.
Marple told her that wasn’t her concern.
Hayes continued by telling Marple that most of the time she
runs the computer, while her coworkers wrap and strap the
product. Marple insisted that if Hayes could not wrap and strap
she had to go home. He also told Hayes that she would have to
bring in a doctor’s note before returning to work. At one point,
Hayes told Marple that what he was doing was childish. She
also said that Marple and/or his decision to send her home was
stupid.30
The next day, August 12, 1999, Hayes called Marple to tell
him that she had been to the doctor, who had given her an ex-
cuse and that she would not be coming to work because her
hand was still swollen. Marple told Hayes to come to the plant.
When she arrived, Marple read her a written warning (GC Exh.
39), and told Hayes she was being terminated. Alexis Butcher
then explained to Hayes her termination benefits.
There is absolutely no substantial evidence in the record es-
tablishing why Respondent terminated Mylinda Casey Hayes.
Neither Butcher nor Komori, who testified, offered any expla-
nation. Marple did not testify. The warning he drafted is hear-
say and does not establish that Hayes was terminated for the
reasons set forth therein. As in the case of Hall and Wilson, I
draw the inference from Respondent’s failure to call Marple
that his testimony, if offered would not have been favorable to
its case, Government Employees, supra. For example, in light
of Troy Stire’s testimony regarding his conversations with
Terry Leigh, I conclude that Marple may have been told to fire
Hayes by higher-level management.
Moreover, Respondent’s failure to offer substantial evidence
of a nondiscriminatory reason for terminating Hayes leads me
to infer that it was aware she supported the Union, that it bore
animus towards her as a result and that she would not have
been terminated but for her support for the Union. Assuming
that Hayes’ conduct merited discipline, there is no explanation
29 Jeff Grey, her regular supervisor, was on vacation. There is no in-
dication that Grey was consulted about Hayes’ termination.
30 Hayes denies using the word “stupid” but I credit Jeff Whitehair’s
testimony to the contrary.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 386
why she was terminated, as opposed to being given another
written warning. Her conduct was certainly no more offensive
than her response to her coordinator in December 1998, prior to
her union activity.31 There is no explanation for why her con-
duct that had been objectionable to Respondent for years sud-
denly became grounds for discharge on August 12.
Further, from the fact that Respondent had a plan to get rid
of union supporters when the opportunity arose, from the fact
that at about the same time it fired Hayes, it took discriminatory
action against Roger Allman and Roger Harris, I conclude that
Hayes’ discharge was part of the same broad-based initiative
against union supporters.
There is also no adequate explanation for Marple’s insistence
that Hayes leave Respondent’s facility on August 11. Her tes-
timony that she regularly operated the computer for an entire
shift is uncontradicted. It is also clear that Marple could have
accommodated her if he had so desired. I infer that the hard
line taken by Marple was also discriminatory. In conclusion, I
find that Respondent violated Section 8(a)(3) and (1) in dis-
charging Mylinda Casey Hayes on August 12, 1999.
M. The Associate Written Discussion Issued to
Roger Allman on August 23, 1999
Roger Allman has been employed at TJM as a maintenance
mechanic since 1995. He was on the in-house organizing
committee for both campaigns. He was recognized as one of
the leaders of the organizing drive by Respondent. Len Komori
told George Dolmat that Allman was very clever in avoiding
any situation that would cause him to be disciplined.
Allman was one of the few employees to openly display a
union badge during the second campaign. For 3–4 hours, 2
days just prior to the second election in March 1999, Allman
and Larry Wilson stood outside the main entrance to the plant
holding up signs encouraging employees to support the Union.
During the summer of 1999, Respondent was looking for
opportunities to discipline and discharge prominent union sup-
porters. I draw this conclusion from the previously discussed
conversations between Assistant Plant Manager Thomas
Booker and Dane Moore, and between Booker and Green End
Superintendent Scott Williams.
On August 23, 1999, Roger Allman was summoned to the
office of Maintenance Manager Terry Leigh. Leigh presented
Allman with a written discussion and told him to read it.
The discussion (GC Exhibit 26), begins as follows: “This
discussion is for a trend that Roger is showing that we will not
tolerate. Roger has an attitude that everything that we are do-
ing is wrong and the company is trying to take advantage of
associates.”
The document then recites three incidents, only one of which
appears to be logically related to Allman’s attitude. The related
incident refers to a safety meeting on August 17, at which
Allman asked Leigh how employees were to dispose of a parts
cleaner. Cletis Wamsley, the electrical superintendent, told
Allman that the substance was to be burned in the furnace.

31 Respondent’s treatment of Hayes also contrasts markedly with its
forbearance towards its safety director, who made a very obscene re-
mark to her.
Leigh asked Allman if he had read the Material Safety Data
Sheet (MSDS) for the substance. Allman did so afterwards and
told Leigh he had read the MSDS. Respondent does not have a
policy of disciplining employees for asking questions at safety
meetings, even questions that can be answered with minimal
research.
The second incident mentioned is Allman’s telephone call to
TJM purchasing agent Brenda Hinerman at about 11:30 p.m. on
August 17. That evening the drive belts on the overshog ma-
chine began to smoke. The operators reported this to the main-
tenance employees on duty, one of whom was Allman. The
first thing Allman did was go to a storeroom to get replacement
belts.32 There were none in the storeroom. Allman then called
Purchasing Agent Brenda Hinerman, who was in bed, at home.
Allman told Hinerman that the belts on the overshog had
burned up and that there were no more in stock at the plant.
Allman contends that he told Hinerman that there was no hurry
in getting the belts because the overshog was not scheduled to
operate during the first shift the next day.33 He also testified
that he told her that she could bring the belts with her when she
came to work the next morning. Hinerman testified that
Allman only told her that the overshog was “down” and that
she understood from this conversation that the belts were
needed immediately.34
Hinerman called TJM’s local distributor, who had no v-belts
in stock. As a result, she had to order them from an outlet in
Carmichael, Pennsylvania. The belts were transported by taxi
from Carmichael to Buckhannon at a cost of about $312, so that
they would be available for the first shift. Allman did not vio-
late any company policy or practice in calling Hinerman at
home. She gets similar calls 3 or 4 times a month. However,
he could have waited until Hinerman arrived at about 5:30 the
next morning. After Allman’s call to Hinerman, he and another
employee worked several hours to unjam the overshog and then
shut the machine down because it was not needed until the
beginning of the second shift the following afternoon.
The third incident mentioned in the written discussion is that
Allman rebuilt a cylinder on a lathe. It did not work properly.
He had to remove the cylinder and retighten it, which kept the
lathe from operating for an hour. Other employees made simi-
lar errors and were not disciplined.
I conclude that the General Counsel has shown that the writ-
ten discussion was issued to Allman in retaliation for his union
activities. It is clear that TJM was aware of his prominent role
in both organizing campaigns, bore an extreme amount of ani-
mus towards that activity and was looking for an excuse to
discipline Allman and other union leaders. Moreover, I con-
32 Allman was acting in accordance with TJM policy in checking on
the availability of replacement parts before going to the overshog ma-
chine.
33 The overshog, which grounds wooden material into smaller bits,
was scheduled for preventative maintenance on the first shift on August
18.
34 I find no need to resolve the conflict between the testimony of
Allman and Hinerman. It is clear that Allman did not tell her that the
belts were needed immediately. It may be that she simply misunder-
stood Allman or that he did not adequately communicate to her the
schedule for the overshog.

TRUS JOIST MACMILLAN 387
clude that Respondent has offered no evidence to rebut the
General Counsel’s case.35 This leads me to conclude not only
that TJM did not meet its Wright Line burden but also that the
reasons for the discussion are pretextual.
Respondent offered no explanation for issuing an associate
written discussion to Roger Allman. Terry Leigh, who gave the
discussion form to Allman, did not testify.36 I again draw an
adverse inference from Leigh’s failure to testify, that any testi-
mony he would have offered would have been harmful to
TJM’s case. Indeed, in light of Troy Stire’s uncontradicted
testimony regarding his conversations with Leigh, I find that
Leigh was directed to discipline Allman by higher management
because of union activity.37
N. The Terminations of Dane Moore and Roger Harris
Roger Harris was hired by Respondent in March 1995, as a
quality assurance technician. During his first year at TJM,
Harris reported to Quality Assurance Supervisor Dana Fields.
In 1996, Fields was terminated by her supervisor, Technical
Director David Ruth. Before he fired Fields, Ruth issued her a
warning in September 1995, a followup to the warning in Octo-
ber 1995 and a second warning in January 1996. Ruth issued
these warnings consistent with his understanding of TJM’s
policy, i.e., to provide an adequate opportunity for an individual
to correct their job performance before making a decision to
terminate them.
Fields was replaced as quality assurance supervisor by Bruce
Christiansen. In June 1997, Christainsen left this position and
Ruth hired Dane Moore to replace him. Moore had been a
green end supervisor at the plant since April 1995. Ruth con-
sidered Moore an excellent supervisor and Moore considered
Roger Harris an excellent employee.
Harris was on the in-house organizers list provided to Re-
spondent in February 1998, and was widely regarded as one of
the leaders of the union effort at Buckhannon. As noted before,
shortly after the first election, Plant Manager Leonard Komori
indicated to both Moore and Ruth that Harris did not belong at
the plant because of his union activities. Also as noted previ-
ously, Roger Harris was one of the few employees who openly
demonstrated support for the Union during the second cam-
paign. He served as an observer for the Union in both elec-
tions.
In the fall of 1998, Robert Hoover transferred from the mi-
crollam department to quality assurance. Hoover was assigned

35 The written discussion document is pure hearsay with regard to
the reasons for which it was issued and therefore does not constitute
credible evidence.
36 Komori testified that he had no role in issuing Allman this discus-
sion; I do not credit his testimony in this regard. Alexis Butcher, who
signed the discussion, offered no explanation for why it was issued.
37 On November 19, 1999, Leigh prepared an annual evaluation for
Allman, rating his overall performance as a “1,” the second lowest
rating out of four choices. The same day, Leigh prepared a team matrix
rating (GC Exh. 26). The rating has zeros in the box for overall per-
formance for the dates of August 23, October 22, and November 19,
which have been scratched out. Although not alleged as violations in
the complaint, these evaluations are a direct result of the written discus-
sion and are to be expunged from Allman’s records pursuant to the
order portion of this decision.
to work with Roger Harris, who was given responsibility for
training Hoover. Harris was a very competent technician who
tended at times to be harsh in his assessment of new employees.
Harris told Hoover that he brought another employee to tears,
when he threw his hardhat across the floor in anger several
years earlier.38 Hoover found Harris to be a difficult person.
Two weeks after Hoover started working in quality assurance,
Harris told him that he did not think Hoover would make it as
quality assurance technician.
Tension between Harris and Hoover increased after the sec-
ond union campaign began, because Hoover discussed his op-
position to the Union, possibly in response to inquiries from
Harris. On one occasion just prior to the election, Harris chided
Hoover for having worked for a hardware store at the minimum
wage. He told Hoover that if the Union won at TJM, he would
make more money and indicated that Hoover was “dumb” for
opposing the Union.39
On occasion, Harris referred to Hoover as “Len’s boy” or
“Pat’s boy” (TJM Vice-President Pat Smith). Harris had com-
pleted a career in the military sometime prior to his employ-
ment with TJM. Harris, on at least one occasion, told Hoover
how when he was in the service, “they settled things with their
fists.” However, there was no indication that Harris said this in
way that threatened Hoover with physical violence.
Harris at times referred to Leonard Komori, who is of Japa-
nese ancestry, as “a rice eater.” A number of employees, in-
cluding Harris, Roger Allman, Supervisors Terry Leigh and
Gene Zara, also at times referred to Komori as “Hop Sing,” the
name of the Chinese cook on the television show “Bonanza.”40
Just prior to the second election in March 1999, David Ruth
and Dane Moore invited all the quality assurance technicians to
breakfast to demonstrate their appreciation for the job they
were doing. Hoover and Harris were invited to join Ruth and
Moore at the same time. Harris declined the invitation due to
other commitments. Hoover went to this breakfast meeting
alone.
38 This incident occurred before Dane Moore became the quality as-
surance supervisor. Similarly, QA Technician Jason Croston had com-
plained to David Ruth about the way Harris treated coworkers prior to
Moore’s transfer to the QA department. However, Ruth also received
complaints about the manner other QA technicians treated coworkers,
including one about Jason Croston.
Respondent’s attempt to depict Harris as an employee who was rou-
tinely cruel and insensitive to others is belied by Jason Croston’s testi-
mony. In 4-1/2 years working with Harris, Croston could recall only
two unpleasant experiences with Harris. Both of these incidents oc-
curred at least 2-½ years prior to Harris’ termination.
39 There is no evidence that prior to August 30, 1999, Respondent
was aware of this conversation, which was overheard by QA technician
Kevin Strader. Strader, one of Respondent’s witnesses, also heard
Harris make complimentary remarks about Hoover. He never heard
Harris make any derogatory remarks about anyone’s ethnic origins.
40 Other employees and management officials were also referred to
by nicknames, albeit names that appear less offensive. George Dolmat
was referred to by many employees as “Casper” (as in “Casper the
friendly ghost”). He was given this nickname apparently because dur-
ing the early stages of his employment at Buckhannon, he appeared not
to be at the plant very much.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 388
During this breakfast meeting, Hoover told Ruth and Moore
that his relationship with Harris was very tense. He told them
that one day he approached Harris and said, “I know that we
have different views. But all I desire is your friendship.” Hoo-
ver said that Harris “laughed in his face” and told him, “I don’t
have friends, only acquaintances.” At this point, Ruth dis-
played anger towards Harris, and said, “I’m going to talk to
Roger.” Hoover asked him not to do so, that he preferred to
handle the situation himself. Ruth, Moore and Hoover dis-
cussed the ongoing union campaign. Moore and Ruth indicated
to Hoover that since the organizing drive was the source of
much of the tension between he and Harris, they thought things
would improve when the campaign ended.
At sometime after the breakfast meeting, Hoover approached
Supervisors Cal Zirkle and David Marple and discussed his
tense relationship with Roger Harris. Marple asked Hoover if
Harris was harassing him and said that if he was, Hoover or
Marple (it’s not clear which ) should do something about it.
Hoover replied that he wanted to leave things alone and see
what happened.
After the breakfast meeting, Moore asked Hoover frequently
how he was getting along with Harris. Hoover repeatedly told
Moore that everything was fine. In June he told Moore that if
he had his choice of anyone to work with in the QA department
he would choose to work with Roger Harris.41
On April 12, 1999, Moore gave Roger Harris his annual per-
formance appraisal (GC Exh. 6). The review is generally fa-
vorable and Harris received a “2” rating (“3” being the highest).
One area in which employees are evaluated is “Teamwork.” In
evaluating employees in this category, supervisors are directed
to consider, “cooperation, attitude towards others, communi-
cates effectively, participation as a team member, willingness
to accept change, and work responsibilities, including over-
time.”
Moore’s assessment of Harris was that, “I have always be-
lieved Roger to be a strong team player, though demanding. I
want Roger to focus on being even tempered and consistent
with teammates.” When he met with Harris, Moore told him
that not everybody sees things his way and that not everybody
else believes the same thing. Moore assiduously avoided men-

41 Robert Hoover confirms Moore’s testimony on this point. At
some point after the union campaign ended, Hoover told Moore that
Roger Harris was not speaking to him. It is unclear when this occurred
in relation to the occasions on which Hoover told Moore that every-
thing was fine and that he wouldn’t trade Harris as a partner for anyone
else.
I generally regard Robert Hoover to be a credible witness. However,
he is clearly a very malleable individual. Thus, where he responded to
leading questions from Respondent, I tend to discount some of his
testimony, particularly his testimony as to his opinion that Harris was
deliberately denigrating his religious beliefs.
I would also observe that Respondent elicited a great deal of testi-
mony regarding offensive behavior by Harris of which it was not aware
when it terminated him and on which it did not rely in terminating him.
There is also no evidence that Moore or Ruth was aware of this behav-
ior (e.g., Harris’ unflattering and offensive characterizations of Ko-
mori’s ethnic background). I therefore find this evidence to be irrele-
vant to Respondent’s motivation in discharging Harris and Moore, or
any other issue in this case.
tioning the word “union,” although he was obviously referring
to Harris’ attitude towards antiunion employees.
In June 1999, David Ruth was transferred to Respondent’s
plant in Colbert, Georgia. Assistant Plant Manager Thomas
Booker became interim technical director. As discussed earlier,
Booker went to Dane Moore on June 24, and began pressuring
him to take disciplinary action against Roger Harris in conjunc-
tion with conversations about the threat posed to Respondent by
the Union and Harris’ organizing activities.
On June 28, as discussed previously, Booker invited Moore
to lunch. He told Moore, that, contrary to their prior conversa-
tion, Booker had discussed Roger Harris with Len Komori
before asking Moore to do something about Harris. From this I
conclude that Booker approached Moore on this subject at the
direction of Komori, or at least with his approval. After dis-
cussing how much the union campaign had cost Respondent,
Booker told Moore that “there were things we could do to make
Roger know he was unwelcome in the plant.” To this end
Booker suggested that if a vacancy in the quality assurance
department were not filled, Harris could be assigned to work
alone, thus suggesting he was not welcome at TJM.
Moore told Booker that he was “tip-toeing around the edges
of legality” and said he could count on Moore to act with integ-
rity and respect for employees. Booker questioned the integrity
of employees supporting the Union and rhetorically asked
whether they should not be held to account for spreading misin-
formation about Respondent.42
After his conversation with Booker, Moore went to see Scott
Williams, the green end superintendent, to whom Booker also
suggested taking retaliatory action against union supporters.
When Moore told Williams about his conversation with
Booker:

[Williams] told me that he felt that the company would really
like to be rid of a number of people and he believed that if it
meant getting rid of Dane Moore and Scott Williams to get
that done they would do that.43

As discussed earlier, Moore also went to see Human Re-
sources Director Alexis Butcher about his conversations with
Thomas Booker about Roger Harris. Butcher forwarded his
concerns to Len Komori in an e-mail to which Komori did not
respond.44
42 Booker’s testimony confirms the essential details of his discus-
sions with Moore in June, 1999. To some extent, his testimony is even
more damning than Moore’s. Booker confirms, for example, that at the
same time he was telling Moore that Harris should not get a passing
grade on his teamwork evaluation, he also told Moore that he was con-
cerned that Harris would continue to solicit employees to support the
Union (Tr. 937–938, 955).
43 To the extent that there is conflict between the testimony of Moore
and Scott Williams, I credit Moore. However, Williams, who is still at
supervisor at TJM, confirms the essentials of Moore’s testimony. He
testified that he did not recall making the above-quoted remark, not that
he did not make it. I find he did make it and that things said to him by
Booker and other management personnel led Williams to believe that
any supervisor who interfered with plans to rid TJM of certain promi-
nent union supporters, would be fired.
44 I credit Butcher’s testimony over that of Komori in this regard.

TRUS JOIST MACMILLAN 389
On August 9, Dane Moore returned from a 1-week vacation
and prepared bimonthly evaluations for all the employees in the
quality assurance department. On August 13, Booker came into
his office and told Moore that he was “right on target” with his
evaluations, except for the one for Roger Harris. Booker told
Moore that Harris had to receive an unsatisfactory score for
teamwork. Harris, Booker continued, had not acted as a team-
mate towards Booker and Komori, and did not have the accep-
tance of the people on the plant floor.
Booker and Moore discussed Roger Harris’ relationship with
Robert Hoover. Moore told Booker that the problem had been
resolved to his satisfaction and to Hoover’s satisfaction. He
also told Booker that he had addressed Harris’ relationship with
his teammates satisfactorily in Harris’ annual evaluation.
During this conversation, Moore asked Booker if he had
some kind of agenda and whether he knew that the next techni-
cal director would share that agenda. Booker replied that he
hoped he was talking to the next technical director. Booker
continued by saying that Komori was waiting for Moore to step
up and take the job by showing that he was willing to do what it
takes to get the job.45
In preparation for meeting with Booker the following day,
Moore called Roger Harris on Sunday, August 22, and asked
him to come to his home. When Harris arrived, Moore read to
him from notes he had taken. The notes Moore read included
Moore’s account of being told by Booker that Moore’s peers
were expecting him to take care of Harris, that Harris was to be
isolated and made to feel unwelcome, and that Moore might
become technical director if he co-operated with Booker’s plan
to get rid of Harris. Moore told Harris he was going to be re-
ceiving an unsatisfactory teamwork evaluation and cautioned
him not to overreact.
The next day, August 23, Moore went to Booker and told
him that he would not give Harris the failing rating, as Booker
had suggested. Moore told Booker that he thought such a rat-
ing was wrong and was motivated by a desire to retaliate
against Harris for his union activity. Two days later, on
Wednesday, Booker asked Moore again if he had prepared the
evaluations. Moore reiterated that he would not give Harris an
unsatisfactory rating.
On Friday morning, August 27, 1999, Booker summoned
Moore to Alexis Butcher’s office and told Moore that he could
either resign or be terminated. Booker handed Moore a termi-
nation notice (GC Exh. 4) that stated “[o]n a range of issues, we
either sense a lack of support or we know that Dane is unwill-
ing to support management decisions.”
The notice gave no specifics as to what range of issues
Booker was referring. When Moore asked him, Booker, for the
first time, mentioned he thought Moore had not supported his

45 Moore had applied for the technical director position. That such a
conversation occurred is confirmed by Alexis Butcher’s testimony at
Tr. 1084–1085. Butcher testified that Moore came to her office one
day and told her that Booker had asked him to take care of Roger Harris
and that if he did, maybe something could be worked out with the tech-
nical director position. I see no reason why Moore would have such a
conversation with Butcher unless Booker had intimated to him that his
chances of becoming technical director would greatly improve if he
gave Harris a failing teamwork rating.
position regarding some defective runs of the parallam prod-
uct.46 I credit Moore’s testimony that there was no difference
of opinion between him and Booker on this issue, and find that
this and other reasons given for Moore’s termination during the
hearing were fabricated.47
Moore left the plant. Later that day, Booker called Roger
Harris at home to inform him that Moore no longer worked for
Respondent and to tell him that any information he previously
gave to Moore should now be given directly to Booker. On
Friday, Harris decided to ask for a meeting with Booker the
following Monday morning. He planned to ask Booker for an
explanation for Dane Moore’s termination and to call Booker a
liar if Booker refused to give him a reason.
Upon arriving at the plant for his next scheduled shift on
Monday, August 30, 1999, Roger Harris requested a meeting
with Thomas Booker, Alexis Butcher, and David Marple. For
the first time since the election, Harris was wearing his UMWA
T-shirt. According to Butcher, whose account, I credit:

[W]e came into my office. Roger sat and began to question
Tom about why Dane Moore had been let go, why his em-
ployment had been terminated. Tom explained to him nu-
merous times throughout the discussion, that we were not
permitted to give that information, it wouldn’t be fair to Dane
to do that . . . that basically, that was confidential information.

Roger continued to ask why Dane had been let go, made
comments to the effect that this was not . . . about anything
other than between he, Roger, Tom and Dane. That he felt
pretty strongly about Dane and his supervisory roles and his
capacity and how Dane did his job. He continued to say and,
then it got a little harsher, he said . . . I think on numerous
times that Tom was Len’s prostitute. That he had prostituted
himself. Wanted to know how much Len was paying him.
How much prostitutes got paid now a days. I remember he
grabbed his crotch and said something to the effect of, I have
your manhood hanging right here.

Tr. 1071.
Harris also called Booker a lying bastard. Booker asked
Marple to bring Len Komori to Butcher’s office. Booker told
Komori what Harris had said to him. Komori asked Harris if he
had called Booker a liar, a lying bastard, and a prostitute. Har-
ris conceded that he had. Harris denied purposely grabbing his
crotch. He told Komori, Booker, and Butcher that he was go-
ing to let both the Union and the NLRB know what Respondent
had done to Dane Moore. A few minutes later Komori termi-
nated Roger Harris.
O. Respondent Violated Section 8(a)(1) in Terminating
Dane Moore
An employer violates Section 8(a)(1) of the Act when it dis-
charges a supervisor for refusing to commit an unfair labor
practice, Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982).
46 The glue was not bonding the strands of the parallam together well
enough in a production run on about August 5 or 6, 1999.
47 I credit Moore’s testimony that Booker never indicated any dissat-
isfaction with his work or his response to any assignment—other than
the evaluation to be given to Roger Harris.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 390
I conclude that Respondent discharged Dane Moore solely for
refusing to give Roger Harris an unsatisfactory teamwork rat-
ing. The evidence of animus towards Roger Harris’ union ac-
tivities is overwhelming. It is also apparent that Respondent,
by Thomas Booker, put a great deal of pressure on Dane Moore
to give Harris an unsatisfactory teamwork rating as part of a
scheme to either fire Harris or make him quit because he sup-
ported the Union. The timing of Moore’s discharge, a few days
after he informed Booker that he would not give Harris a poor
teamwork rating is another reason I find that Moore’s termina-
tion violated the Act.
Additionally, the pretextual reasons given for Moore’s dis-
charge support the General Counsel’s case. I find the testimony
of Thomas Booker and Leonard Komori as to other reasons for
Moore’s discharge to be completely false. Komori concedes
that he never gave Moore any indication that Respondent was
dissatisfied with his job performance prior to his termination.
Further, I credit Moore’s testimony that Booker never ex-
pressed any dissatisfaction with his work prior to August 27.48
In addition to my general assessment of Moore as a credible
witness and Booker as an incredible witness, I rely on the fact
that absolutely no documentation or corroboration exists for
Respondent’s assertions that Moore’s performance with regard
to the curtain coater project, the internal bond problem and the
indent problem, was unsatisfactory.
Respondent’s treatment of Moore contrasts markedly with
Ruth’s extensive documentation prior to firing Dana Fields. I
credit Ruth’s testimony that the manner in which he docu-
mented Field’s performance and offered her an opportunity to
improve was in accordance with TJM policy. The fact that no
documentation exists for Moore’s alleged deficiencies and no
opportunity was provided to him to correct any perceived prob-
lems is also an indication that the proffered reasons for his dis-
charge are pretextual.49
Finally, I conclude that Respondent had no legitimate reason
to discharge Moore for his refusal to downgrade Roger Harris.
It is quite clear that Moore did everything within his power to
assure that Harris treated Robert Hoover fairly. Moore can
hardly be faulted for not taking action against Harris when
Hoover repeatedly told him that everything was fine and asked
him not to intervene. Moreover, as the record indicates that the
teamwork rating generally covers an employee’s behavior dur-
ing a 2-month period, there is no indication that Harris’ conduct
warranted an unsatisfactory rating anytime after April 1999.
The proposed unsatisfactory teamwork rating was to be im-
posed for activities protected under the Act. Respondent
sought to punish Harris for trying to persuade Robert Hoover,
an antiunion employee, to change his views during an election
campaign and for exhibiting resentment towards Hoover by not

48 I note that even Moore’s termination notice, GC Exh. 4 mentions
no specific instances of unsatisfactory performance on Moore’s part. I
further credit Moore that Booker only mentioned the salvaging of the
defective parallam beams (due to poor bonding of the glue) on August
27. However, I conclude that all three alleged deficiencies (the bond,
the indents, and curtain coater) were fabricated by Respondent as post
hoc rationalizations for its unlawful discharge of Moore.
49 On the other hand, Len Komori appears to have demoted, and then
terminated, George Dolmat with little or no warning or documentation.
going on coffeebreaks with him and not being friendly. Harris’
conduct was neither sufficiently abusive nor threatening to
remove his conduct from the protections of the Act, see Patrick
Industries, 318 NLRB 245, 248 (1995).50
P. Dane Moore’s Loyalty to Respondent
At page 32 of its brief, Respondents contends that “[e]ven if
Dane Moore’s termination somehow were found to have vio-
lated the Act, he clearly is entitled to no relief since it is now
known that he intentionally breached his obligation of confi-
dentiality, loyalty and trust owed to Respondent.” Just as
Moore did not violate any obligations to Respondent by refus-
ing to give Roger Harris an unsatisfactory teamwork rating, he
did not violate his obligations to Respondent by advising Harris
that he was to be given this rating and that it was part of an
unlawful plan to make Harris feel unwelcome at TJM. Further,
Moore’s testimony establishes that he forewarned Harris to
prevent him from overreacting to the appraisal, thereby giving
Respondent an excuse to fire Harris.
In Buddies Super Markets, 223 NLRB 950 (1976), the Board
held that an employer unlawfully discharged a supervisor who
told an employee that it was building a case against him be-
cause of union activities. Parker-Robb, supra, 404 fn. 20, over-
ruled Buddies Super Markets to the extent the decision rested
upon the fact that the supervisor’s discharge was an integral
part of its attempt to restrain, coerce, and interfere with Section
7 rights or part of a pattern of conduct to do so. However,
Buddies Super Markets was not overruled to the extent that it
relies upon the need to vindicate employees’ exercise of their
rights. I conclude that Moore, in advising Harris of the actions
to be taken against him, was vindicating Harris’ right to con-
tinue to engage in protected activity and to avoid retaliation for
such activity. Therefore, Respondent would have violated the
Act if it had discharged Moore for tipping Harris off about the
teamwork evaluation and the plan to encourage Harris’ depar-
ture from the plant. It therefore cannot evade its obligation to
offer Moore backpay and reinstatement as a result.51
Q. Legal Conclusions Regarding Roger Harris’ Discharge
As a general proposition, an employer is entitled to terminate
an employee, who says the kinds of things that Roger Harris
said to Thomas Booker on August 30, 1999. The General
Counsel argues that Respondent was not entitled to fire Harris,
however, because: 1. he was engaged in protected activity and
2. Respondent provoked his conduct.
As to the first proposition, I conclude that Harris’ protest of
the termination of Dane Moore for refusing to commit unfair
labor practices against Harris is indeed protected. Generally,
the protest of a supervisor’s discharge by a single employee
50 Booker’s testimony at Tr. 933–934 confirms that Hoover told him
that his “poor treatment” by Harris had diminished or ceased by July
and that it was related to “the Union stuff.”
51 I also note that Moore was sufficiently willing to act in behalf of
Respondent’s interests that during the election campaigns that he re-
ceived a note of appreciation from Company Vice-president Pat Smith,
and a case of frozen steaks. It also appears that Moore, on TJM’s be-
half, may have violated the Act in engaging in surveillance of Roger
Harris’ union activities (Tr. 937).

TRUS JOIST MACMILLAN 391
might not be protected. However, Harris’ protest was an exten-
sion of his union activity, in that he was protesting retaliation
against Moore for failing to carry out directives to discriminate
against Harris. On the other hand, the manner in which pro-
tected activities are engaged can result in the forfeiture of the
employee’s protected status. “[T]here are . . . limits to em-
ployee insubordination, even when provoked,” NLRB v. Stein-
erfilm, Inc., 669 F. 2d 845, 852 (1st Cir. 1982).
With regard to employee outbursts provoked by an em-
ployer’s unlawful discrimination, the Board has held that:

When the impulsive behavior is induced by the employer’s
unlawful infringement of employee rights, we also compare
the seriousness of the employer’s unlawful conduct with the
extent of the employee’s reaction.

Brunswick Food & Drug, 284 NLRB 663, 664 (1987), enfd.
mem. 859 F. 2d 927 (11th Cir. 1988); Paradise Post, 297
NLRB 876 fn. 2 (1990).
Respondent contends that the above-cited cases and similar
cases provide no support for the arguments of the General
Counsel (R. br. at p. 37). TJM argues that:

Harris certainly did not experience a “moment” of enthusi-
asm. Rather having been informed [of Moore’s termination]
on a Friday afternoon, Harris had an entire weekend to de-
velop his plan before his next shift on Monday morning . . . .
Harris waited until he had Booker in the presence of his peers,
then did all he could to intentionally humiliate and degrade
Booker.

I agree with Respondent that Harris planned to embarrass
Booker in front of Alexis Butcher and David Marple. I do not
credit his testimony that he expected Booker to admit to him in
front of Butcher and Marple that he fired Moore because of his
refusal to retaliate against Harris for his union activities. Harris
concedes that he planned in advance to call Booker a liar if he
did not get a satisfactory answer to his inquiry. I find that no
reasonable person would have expected to get a satisfactory
response under the circumstances. Had Booker given Harris
the rationale put forth by Respondent at the hearing, I infer that
Harris’ response to Booker would have been the same.
In almost all of the cases in which the Board and/or the
courts have excused an outburst such as Harris’, the outburst
immediately followed the employer’s provocation. In this re-
gard, the Fourth Circuit decision in J. P. Stevens v. NLRB, 547
F. 2d 792 (4th Cir. 1976), makes a distinction between sponta-
neous and premeditated actions by employees. However, that
decision found unprotected a premeditated interruption of an
employer’s lawful election speech and is not particularly rele-
vant to the instant case.
The Board and the Fourth Circuit first held that an employer
cannot provoke an employee and then rely on the employee’s
indiscretion to justify termination in NLRB v. M & B Headwear
Co., 349 F. 2d 170, 174 (4th Cir. 1965), enfg. 146 NLRB 1634
(1964). In this case the court stated,

We hold only that when a layoff is discriminatory a rehiring
of the injured employee cannot be avoided by reliance on her
later unpremeditated and quite understandable outburst of an-
ger that in no way harms or inconveniences the employer . . . .
Justice in this instance demands the employee’s reinstatement
with the strict admonition that she will be expected to conduct
herself properly and with due respect to supervisory person-
nel. After reinstatement any further misconduct will subject
her to disciplinary action as it would any other employee.

Nevertheless, the facts of that case show that a interlude of
several days between the provocation and the employee’s out-
burst is not necessarily fatal to the employee’s protected status.
In M & B Headwear, the discriminatee, Rena Vaughan, was
the most active union adherent at her plant. On June 10, 1963,
Vaughan was laid off in retaliation for her union activities.
Upon being laid off, Vaughan told supervisor Dorothy Ellis that
Ellis and supervisor Roy Trivette were not going to sleep any-
more at night. Seven days later, Vaughan returned to the plant
to seek reemployment. In the course of a conversation with a
clerical employee, Vaughan declared, “I am going to beat
Dorothy Ellis if it is the last thing I do.” Sometime later, during
a discussion with the company president, Vaughan told the
employer’s vice president to “shut up” when he tried to inter-
vene in the conversation.
The Court of Appeals majority observed:

We in no way condone insubordination and in normal situa-
tions it would be a justifiable ground for dismissal. But we
cannot disregard the fact that the unjust and discriminatory
treatment of Vaughan gave rise to the antagonistic environ-
ment in which these remarks were made.

An employer cannot provoke an employee to the point where
she commits such an indiscretion as is shown here and then
rely on this to terminate her employment . . . . The more ex-
treme an employer’s wrongful provocation the greater would
be the employee’s justified sense of indignation and the more
likely its excessive expression. To accept the argument ad-
dressed to us by the company would be to provide employers
a method of immunizing themselves from the only real sanc-
tion against violations of Section 8(a)(3) . . . refusal to rein-
state her would put a premium on the employer’s misconduct.

On the basis on the decision in M & B Headwear, I conclude
that the intervening weekend between the provocation herein
and Harris’ response does not preclude a finding of discrimina-
tory discharge, or reinstatement. In this case the provocation is
extraordinarily extreme. Respondent had just fired a well-
respected supervisor who refused to take part in its scheme to
rid of itself of an number of prominent union supporters, in-
cluding Roger Harris, himself. Indeed, it would not be unrea-
sonable for the retaliation against Moore to have infuriated
Harris more than retaliation against himself. While the dis-
criminatee in M & B Headwear had herself been laid off before
her outburst, I deem this insufficient to distinguish Harris’
situation. Given the accurate information Harris had received
from Moore, it was reasonable for him to assume that he would
soon be fired or constructively discharged by Booker.
Although Harris had the weekend to think about the manner
of his protest, his outburst occurred almost immediately upon
his return to the plant after Moore’s discharge, and at his first
opportunity to confront Booker. Moreover, Harris did not
physically threaten Booker, as did employees in Steinerfilm and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 392
M & B Headwear, whom the Board and the courts found could
not be legally discharged for their conduct.
While it is clear that Harris planned to call Booker a liar, I do
not conclude that he necessarily planned to call him a prosti-
tute, a lying bastard, and grab his crotch. It is just as likely that
this more outrageous conduct on Harris’ part was unpremedi-
tated. In balancing Harris’ misconduct and Respondent’s
unlawful provocation, I deem that Respondent was not entitled
to fire him for his premeditated conduct in calling Booker a
liar, nor for his more offensive outbursts, which may not have
been planned.
While not in any way justifying Roger Harris’ very impru-
dent behavior, I conclude that given the nature of the provoca-
tion, i.e., Moore’s discharge pursuant to a premeditated plan to
fire Harris and others for union activity, and the close proximity
of his behavior to the provocation, that Respondent was not
entitled to terminate him as a result of that behavior. I therefore
conclude that Trus Joist MacMillan violated Section 8(a)(3)
and (1) in terminating Roger Harris’ employment on August
30, 1999.52
R. The Complaint Allegations Regarding Respondent’s Overly
Broad No-Solicitation/No-Distribution Rule are Dismissed
Because They are Barred by Section 10(b) of the Act
Complaint paragraphs 7(a), 9 (a), 11, and 12 allege viola-
tions of Section 8(a)(1) in that Respondent unlawfully promul-
gated and maintained an overly broad no-distribution/no-
solicitation rule during the first election campaign prior to
March 13, 1998. Respondent argues in a conclusory fashion at
page 12 of its brief that these allegations are barred by the 6-
month limitation in Section 10(b) of the Act.53
The first charge filed by the Union on June 15, 1998, alleged
only that Respondent violated Section 8(a)(3) and (1) in dis-
charging John Bales on April 9, 1998, Larry Wilson on June 4,
1998, and constructively discharging Joy Parker in May
1998.54 On September 24, 1998, more than 6 months after the
first election, the Union amended its charge to allege violations
during the first campaign, including the no solicita-
tion/distribution claims at issue. I conclude that these allega-

52 While Respondent had no reason to know that Moore had advised
Harris of Respondent’s plan to give him a poor teamwork evaluation
and make him feel unwelcome at TJM, and its suggestion to Moore that
he would be promoted if he did so, I conclude that it assumed the risk
that Harris would learn of this plan or infer its existence.
53 Sec. 10(b) is an affirmative defense, that is waived if not timely
raised, Public Service Co., 312 NLRB 459, 461 (1993). It is a close
question as to whether Respondent adequately raised this defense. In
the answer, TJM merely asserted that “[t]he circumstances alleged to
constitute violations of the Act occurred, in whole or in part, more than
180 days prior to the filing of either the Complaint or the underlying
charges referenced therein. As such, the claims asserted in the Com-
plaint are barred by the applicable statutes of limitation.” Since it is
self-evident on the face of the charges that the no-solicitation/no-
distribution rule was not alleged until September 24, 1998, I will con-
sider this defense. However, I will not consider it with respect to other
allegations, such as the early 1998 interrogations, which Respondent
has not specifically claimed were barred by Sec. 10(b).
54 It is not clear whether the General Counsel filed a complaint on
behalf of Bales and Parker.
tions are not sufficiently related to the allegations of the timely
filed charge to permit consideration by the Board, Redd-I, Inc.,
supra. I therefore dismiss these paragraphs of the complaint.55
S. The General Counsel has not Established the 8(a)(1)
Violations Alleged in Complaint Paragraphs 8(a) and (b),
9(b) and (c), 10(a) and (b), and 14
Not every question asked or comment made by a manage-
ment official about union activity violates Section 8(a)(1). One
must determine whether under all the circumstances of the in-
terrogation or comment, it reasonably tends to restrain, coerce
or interfere with rights guaranteed by the Act, Rossmore House,
269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant
Employees Local 11 v. NLRB, 760 F.2d. 1006 (9th Cir. 1985).
Some of the factors to be considered with regard to interroga-
tions are: (1) the background of the questioning; (2) the nature
of the information being sought; (3) the identity of the ques-
tioner; and (4) the place and method of the interrogation.
The General Counsel alleges that sometime prior to the be-
ginning of open organizing efforts, in about January 1998, Su-
pervisor Keith Barbo asked Kenneth Mealy if he attended any
union meetings. Mealy told Barbo it was none of his business
and Barbo made no further inquiries of him (complaint par.
8(a)). Barbo had one similar conversation with Roger Riley at
about the same time (complaint par. 8(b)). I conclude that nei-
ther of these isolated inquiries were unlawful.
Similarly, I dismiss complaint paragraph 10(a) alleging a
8(a)(1) violation by Shipping Manager Larry Harvey in a con-
versation with John Mundy. Harvey asked Mundy if he fa-
vored the Union prior to the date that Mundy began wearing a
union button. When Mundy responded affirmatively, Harvey
asked why. Mundy told him that TJM employees needed a
seniority system and better retirement benefits. Harvey re-
sponded that everyone could use a better retirement plan.
There was no further discussion between Harvey and Mundy
regarding the Union. I conclude that this conversation is not
unlawful pursuant to the criteria in Rossmore House.
No evidence, or insufficient evidence, was introduced to
support the allegations of paragraphs 9(b) interrogation of Joy
Parker by Komori,56 10(b) threats by Larry Harvey, 14(a) and
(b) violations by Dolmat and Vincent in February and March
1999. These are also dismissed.
Additionally, I dismiss complaint paragraph 9(c) alleging
that Komori solicited complaints from employees and promised
to remedy them in order to dissuade them from supporting the
Union. I conclude that the record does not support this allega-
tion. After a conversation with Komori, Joy Parker was tempo-
rarily transferred to a position she desired, to fill in for an in-
55 Although the record indicates that Respondent never changed its
overly broad no-solicitation/ no-distribution rule and that it maintained
it during the second campaign, the General Counsel only argues that the
violation occurred during the first campaign (GC Br. at 56). I therefore
find that the General Counsel has waived any contention that Respon-
dent violated the Act after March 13, 1998, by maintaining such a rule.
56 Parker testified that at a captive audience meeting, Komori asked
employees why they wanted a Union. The record does not reflect
whether Parker and the other four to five employees present openly
supported the Union when the question was asked.

TRUS JOIST MACMILLAN 393
jured employee. Parker’s wages were not increased and she
was not told that the transfer would be permanent. Indeed, the
record indicates that Parker understood that she was being
transferred only until the injured employee returned to work.
Finally, I dismiss complaint paragraph 13 because Respon-
dent has not been provided an adequate opportunity to respond
to it. The complaint alleges that in about mid-March Shift Su-
pervisor Ron Howell threatened employees with the loss of
their jobs because of their union activities. In his brief, the
General Counsel alleges that the violation was committed by
Supervisor David Vincent.
Joy Parker testified that Vincent told approximately 14 em-
ployees at a team meeting that Respondent would probably
come down hard of those who worked for the Union. While
this testimony is properly considered as evidence of TJM’s
animus towards union activities, it would be unfair to find a
8(a)1) violation in this regard because the General Counsel did
not amend the complaint. Therefore, Respondent may have had
insufficient notice of the need to call Vincent as a witness to
avoid being found in violation of the Act.
CONCLUSIONS OF LAW
1. Complaint paragraphs 7(a), 9(a), 10, 11, and 12 are dis-
missed as untimely pursuant to Section 10(b) of the Act.
2. Respondent, by Terry Leigh, violated the Act as alleged
in paragraphs 7(b) and (c), when Leigh advised Troy Stire that
he was targeted for reprisal due to his union activities. Leigh’s
comments are violative regardless of his apparently “friendly”
objectives in trying to protect Stire, Jordan Marsh Stores,
Corp., 317 NLRB 460, 462 (1995).
3. Respondent violated Section 8(a)(1) in terminating and
refusing to rehire Dane Moore as alleged in paragraphs 15–17.
4. Respondent violated Section 8(a)(3) and (1) in terminat-
ing Larry Wilson on June 4, 1998, as alleged in complaint para-
graph 18.
5. Respondent did not violate the Act by issuing a discipli-
nary warning to Joseph S. Hall on or about March 9, 1999, as
alleged in paragraph 19.
6. Respondent did not violate the Act as alleged in para-
graphs 8(a) and (b), 9(b) and (c), 10(a) and (b), 13, and 14 (a)
and (b).
7. Respondent violated Section 8(a)(3) and (1) in issuing a
warning, follow-up reports and downgrading Troy Stire as al-
leged in paragraph 20.
8. Respondent violated Section 8(a)(3) and (1) in terminat-
ing Joseph S. Hall on May 12, 1999, as alleged in paragraph 21.
9. Respondent violated Section 8(a)(3) and (1) in terminat-
ing Mylinda Casey Hayes on August 11, 1999, as alleged in
paragraph 22.
10. Respondent violated Section 8(a)(3) and (1) in issuing a
disciplinary discussion to Roger Allman on August 23, 1999, as
alleged in paragraph 23.
11. Respondent violated Section 8(a)(3) and (1) in terminat-
ing Roger Harris on August 30, 1999, as alleged in paragraph
24.
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.
The Respondent having discriminatorily discharged Dane
Moore, Joseph Hall, Mylinda Casey Hayes, and Roger Harris, it
must offer them reinstatement and make them whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Because of the Respondent’s egregious and widespread mis-
conduct, demonstrating a general disregard for the employees’
fundamental rights, I find it necessary to issue a broad Order
requiring the Respondent to cease and desist from infringing in
any other manner on rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]