West Irving Die Casting of Kentucky, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 2006

346 N.L.R.B. 349 (N.L.R.B. 2006)

WEST IRVING DIE CASTING OF KENTUCKY, INC.
346 NLRB No. 35
349
West Irving Die Casting of Kentucky, Inc. and United
Steel Workers of America, AFL–CIO, CLC.
Cases 25–CA–28585 and 25–RC–10159
January 31, 2006
DECISION, ORDER, AND CERTIFICATION
OF RESULTS
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 12, 2003, Administrative Law Judge C.
Richard Miserendino issued the attached decision, find-
ing that the Respondent had violated Section 8(a)(3) and
(1) of the Act by terminating employee Joseph Shelton.1
The Respondent filed exceptions and a supporting brief;
the General Counsel and the Charging Party filed an-
swering briefs; and the Respondent filed a reply brief.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and the parties’ briefs and has
decided to affirm the judge’s rulings, findings,3 and con-
clusions only to the extent consistent with this Decision
and Order.
We agree with the judge that the General Counsel has
met his initial burden under Wright Line4 of proving that
animus was a motivating factor in the decision to dis-
charge employee Shelton. Contrary to the judge, how-
ever, we find that the Respondent has successfully rebut-
ted that initial case and proven that it would have termi-

1 The judge dismissed allegations that the Respondent violated Sec.
8(a)(1) by interrogating and threatening employees Joshua Tipton and
Rachel Roloson and violated Sec. 8(a)(3) and (1) by discharging Tip-
ton. There are no exceptions to those dismissals.
On February 21, 2003, an election was held in a unit of the Respon-
dent’s production and maintenance employees. Out of approximately
93 eligible voters, 43 votes were cast for and 43 against the Union, with
8 challenged ballots, all of which have been previously resolved except
for those pertaining to discharged employees Shelton and Tipton. The
judge sustained the Charging Party Union’s election objection pertain-
ing to Shelton’s discharge, but overruled the other election objections.
He also overruled the challenge to Shelton’s ballot, but sustained the
challenge to Tipton’s ballot. No exceptions were filed to the disposi-
tion of either the objections unrelated to Shelton’s discharge or the
challenge to Tipton’s ballot. We adopt those dispositions pro forma.
2 The Respondent’s request for oral argument is denied as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 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.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
nated Shelton pursuant to its established attendance pol-
icy even in the absence of Shelton’s union affiliation or
activities.
The facts are set forth in the judge’s attached decision.
Briefly, the Respondent’s attendance policy is a strict,
no-fault point system. Under that system, administered
by Human Resources Generalist Sonya Hendrix, any
employee who misses a day of work without properly
reporting his absence accrues two points. The Respon-
dent discharges any employee who accrues six points.
Thus, an employee who misses 3 days without properly
reporting the absences has accrued 6 points and is to be
discharged. Only calls to a specific employer phone line
(extension 400), made at least 30 minutes before the start
of the shift, satisfy the reporting obligation. Hendrix
terminated Shelton when, over the period of January 22
through 24, 2003, Shelton missed 3 days without report-
ing his absence over the identified phone line, and
thereby accrued the requisite points for termination.5
The crux of this case is whether Shelton was treated
disparately, i.e., whether the Respondent did not consis-
tently discipline employees other than Shelton according
to the letter of its attendance policy. The judge found
that Shelton was treated disparately because the Respon-
dent had accommodated employees who failed to follow
proper absence-reporting procedures in at least two in-
stances, by calling them before implementing the conse-
quence (termination) dictated by the attendance policy.
We do not agree that the Respondent treated the two em-
ployees (Meadows and Devine) in a materially different
manner from Shelton. We find, to the contrary, that the
record evidence establishes that the Respondent imple-
mented the precise, published terms of its policy in a
consistent manner.
Specifically, the record shows that the Respondent has
penalized an employee’s failure properly to report an
absence under the established policy, even when the Re-
spondent receives actual advance notice of the absence.
In both May and July 2002, for example, the Respondent
penalized employees who failed to follow proper report-
ing procedures when they missed work for court appear-
ances, despite the Respondent’s actual advance knowl-
edge of the absences and their cause. The record also
demonstrates that the Respondent applied its strict ab-
sence-reporting requirements to its supervisors. More-
over, there is no evidence that the Respondent ever coun-

5 The Respondent refers to this as a constructive quit. Given that the
Respondent strictly applied the point system without regard to the
employee’s intent or exigent circumstances, we need not consider
whether the Respondent sincerely believed that Shelton had intended to
quit or merely considered him to have quit under the terms of the atten-
dance policy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD350
tenanced any variation from its rules. Regarding sick
leave in particular, there is no evidence that the Respon-
dent ever allowed an employee to remedy his failure to
call extension 400 in a timely manner by providing a
doctor’s note at a later date.6
We now turn to employees Meadows and Devine. The
judge found that the Respondent offered an accommoda-
tion to these employees, but offered none to Shelton. We
find, however, that the Respondent’s application of its
attendance policy to former employees Meadows and
Devine was characteristically strict. Meadows was dis-
charged when he accumulated more than 6 attendance
points after missing work without calling extension 400.
The Respondent terminated him even though someone
else had called his supervisor on his behalf to say he
would miss work, and despite the fact that he himself
came to work during his shift on the last day to explain
the reason for his absence (family illness) in person.
Devine, like Shelton, failed to comply with the atten-
dance policy while he was ill. Although he had spoken
to Hendrix about his illness during his absence, and had
called extension 400 more than once over the course of
his absence, the Respondent discharged Devine for
points he accrued when he failed to call extension 400 on
the same day that he had spoken to Hendrix about it.7
Finally, the fact that Hendrix attempted to contact both
Meadows and Devine by phone before terminating them
does not establish that the purpose of her call was any-
thing other than to explain that they could not cure their
failures to follow the Respondent’s attendance policy.8

6 In her testimony, Hendrix answered in the affirmative in response
to the question, “would you have accepted [Shelton’s doctors’ notes] or
would you have looked at them had he offered them?” At most, that
testimony demonstrates that Hendrix would have physically accepted or
perused the doctors’ notes. Nothing in the record suggests that she
would have treated them as curing Shelton’s failure to call extension
400 in a timely manner.
The judge noted what he characterizes as Hendrix’ willingness to
accept Shelton’s doctors’ notes and Respondent Controller Greg Byars’
instruction that Shelton return to work with those notes. The judge
contrasted this with Supervisor Donald Lightfoot’s refusal to accept the
notes when Shelton offered them after he returned to work the follow-
ing week. But there is no evidence that Byars, unlike Hendrix, partici-
pated in the administration of the Respondent’s attendance policy or
knew that Shelton had not complied with it. Nor is there any evidence
that Lightfoot had any reason to accept the doctors’ notes once Hendrix
had determined that Shelton had not correctly invoked sick leave.
7 Hendrix made a note to her file regarding the circumstances of De-
vine’s termination. Referring to that note, the judge found that there is
no evidence that Devine had offered Hendrix a doctor’s excuse, which
Shelton had done. However, Hendrix’ note also specifically states that
Devine had called to tell her that he was sick and had confirmed in
response to her question that he would provide a doctor’s excuse upon
his return. Hendrix’s testimony is consistent with her note.
8 The judge mischaracterized Hendrix’ testimony as admitting that
she had left Meadows a message offering to see if she could do some-
Indeed, there is no evidence in the record that the Re-
spondent has ever allowed an employee to remedy retro-
actively an attendance-reporting failure. In sum,
Hendrix’s calls to those employees do not demonstrate
disparate treatment toward Shelton, who received his
discharge notification by certified letter.
For the foregoing reasons, we find that the Respondent
rebutted the General Counsel’s initial burden by demon-
strating that it fired Shelton for reasons unrelated to his
union activities. Accordingly, we find that the Respon-
dent did not violate the Act by terminating Joseph Shel-
ton and that the challenge to his ballot in Case 25–RC–
10159 should be sustained.
ORDER
The complaint is dismissed in its entirety.
IT IS FURTHER ORDERED that the Charging
Party/Union’s objection to conduct affecting the results
of the election conducted in Case 25–RC–10159 is over-
ruled and that the challenges to the ballots of Joseph
Shelton and Joshua Tipton are sustained.9
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for United Steel Workers of America,
AFL–CIO, CLC, and that it is not the exclusive represen-
tative of the bargaining unit employees.
Michael T. Beck, Esq., for the General Counsel.
Jon Goldman, Esq. and Jake Fulcher, Esq., of Evansville, Indi-
ana, for the Company.
Everett C. Hoffman, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge. This
case was tried in Owensboro, Kentucky, on June 23–24, 2003.
The charge in Case 25–CA–28585A was filed by United Steel
Workers of America, AFL–CIO, CLC (the Union) on February
19, 2003, and was subsequently amended. On May 8, 2003, the
complaint was issued against West Irving Die Casting of Ken-
tucky, Inc. (Respondent) alleging that the Respondent violated
Section 8(a)(1) of the Act by coercively interrogating and
threatening two employees because of their union support. It
further alleges that the Respondent violated Section 8(a)(3) of
the Act on January 10, 2003, by unlawfully discharging Joshua
Tipton and on January 27, 2003, by unlawfully discharging

thing about his situation. Hendrix admitted only that she called him,
stating that she had done so only because Meadows’ supervisor had
promised him that she would do so after rejecting his proffered doctor’s
note.
9 Accordingly, the revised tally of ballots remains a 43 to 43 tie, and
the Union has not received a majority of the valid ballots cast. We
therefore certify the results.
WEST IRVING DIE CASTING OF KENTUCKY, INC. 351
Joseph Shelton. The Respondent’s timely answer denied the
material allegations of the complaint.
In Case 25–RC–10159, the Union filed a representation peti-
tion on December 13, 2002, seeking to represent certain em-
ployees of the Respondent.1 A stipulated Board election was
held on February 21, 2003. The tally of ballots disclosed that 43
votes were cast in favor of the Union and 43 votes were cast
against the Union. Eight ballots were challenged by the Em-
ployer, including the ballots of alleged discriminatees, Joshua
Tipton and Joseph Shelton. Also, the Union filed four objec-
tions to the election, but subsequently withdrew two. The re-
maining two union objections are based on the 8(a)(1) and (3)
violations alleged in the complaint.
On May 21, 2003, the Board’s Regional Director for Region
25 issued a report on challenged ballots and objections, rec-
ommendations to the Board, an order consolidating the repre-
sentation case and the unfair labor practice case and an order
directing a hearing. The Regional Director sustained all of the
challenged ballots, except for those cast by the two alleged
discriminatees in this case. Their challenged ballots are suffi-
cient to affect the outcome of the election.
The parties have been afforded a full opportunity to appear,
present evidence, examine and cross-examine witnesses, and
file posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, as well as my credibility determina-
tions based on the weight of the respective evidence, estab-
lished and admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole, and after consid-
ering the briefs filed by the General Counsel, the Respondent,
and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and facility in
Owensboro, Kentucky, is engaged in the manufacture of auto-
mobile parts. During the 12-month period ending April 30,
2003, it sold and shipped, from its Owensboro facility goods
valued in excess of $50,000 directly to points located outside
the State of Kentucky. The Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Joshua Tipton
1. Alleged unlawful interrogations and threats
In May 2002, Josh Tipton was referred to the Respondent by
a temporary employment agency and began working as a tem-
porary employee trimmer on the second shift. He reported to
Donald Lightfoot, the second-shift supervisor.2

1 The Union initially sought to organize the Respondent’s Owens-
boro facility employees in December 2001. A Board election was held
on January 18, 2002, in which 49 votes were cast against the Union and
43 votes were cast in favor of the Union.
2 Tipton was not an employee at the time of the first union election.
On October 14, 2002, the Respondent hired Tipton as a full-
time employee. He remained a trimmer on the second shift, but
Larry Beatty became his supervisor. (Tr. 128.) Over the
course of the next several weeks, he was also supervised by
John Tollfree and Bob Cobb.3 (Tr. 128–129.)
In December 2002, employee Bob Griffiths obtained a
signed union-authorization card from Tipton in the men’s rest-
room. Tipton testified that later that day he was working alone
at his machine, when his former supervisor, Don Lightfoot,
walked up to him and asked if he “signed that union card.” (Tr.
130.) Tipton stated that he responded, “Yes.”4 (Tr. 130.) Tip-
ton testified that Lightfoot then replied:
He said that—do you not know what you are doing? He said,
do not know that Dan Stocks will shut this plant down if you
sign this—I mean, if you vote for union, you know, be-
cause—he said let us see. Yeah. That is what he said. [Tr.
130–131.]
Tipton further testified that Lightfoot also told him that Dan
Stocks, the Respondent’s owner, owned another plant in Chi-
cago and that he would shut down the Owensboro plant, move
everything to Chicago and everybody would be out of a job.
(Tr. 131.) Finally, Tipton recalled telling Lightfoot in that con-
versation about his union family background:
Yes. He asked—in that conversation when I was—when he
was telling me about what Dan Stocks would do and stuff, I
told him because he was trying, you know, to say that. I said,
well, I will believe in unions because my father, both of my
grandfathers were all in unions. You know, my grandfather
was the President of the Steelworkers. My dad is the Vice
President of the Inland Container union and—the Paper
Workers. So, I told him, you know, that is probably what I
was going to vote and he got irritated and walked away. [Tr.
131–132.]
Tipton testified that after this conversation, Lightfoot never
carried on another conversation with him, except once when
they happened to take a smoke break together. According to
Tipton, Lightfoot again told him that Stocks would close the
plant if the Union got in. (Tr. 132.)
Tipton further testified that in late December, he was helping
his girlfriend, Rachael Roloson, also a West Irving employee,
at machine number 14, when Lightfoot walked up and asked
her whether she was going to vote for the Union. (Tr. 133,
159.) According to Tipton, Lightfoot told her, “[I]f you chose
to vote, you know, yes for the union, then Dan Stocks will
probably shut the plant down and move all this stuff to Chicago
and that will be the end of the story. You know, you would be
out of a job. That was just kind of his—every time I heard him
talk about it, that is always the story he would lay on us.” (Tr.
133.)
Supervisor Donald Lightfoot denied that he ever asked Tip-
ton if he signed a union card. (Tr. 360.) Lightfoot also denied

3 Bob Cobb started working for the Respondent on December 9,
2002. (Tr. 235.) He became the second-shift supervisor a few days
later. (Tr. 236.)
4 Tipton testified that he did not know how Lightfoot found out that
he had signed a union-authorization card earlier that day.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD352
that he told Tipton or any other employee that if the Union was
voted in, Dan Stocks or anyone else would shut down the
Owensboro plant and move it someplace else. (Tr. 361–362.)
In addition, Lightfoot denied asking Rochelle Roloson how she
was going to vote. (Tr. 361.) Lightfoot was a very credible
witness. He answered questions calmly, directly, and precisely.
In contrast, Tipton’s testimony was vague and exaggerated at
times. For example, in an effort to convey the impression that
it was not unusual for he and Lightfoot to engage in casual
conversation on the shop floor, Tipton testified that he and
Lightfoot had become “really good friends” while he was a
temporary employee and that they would talk every day about
“the girls in our lives, cars, just—he would come up and talk to
me while we were working all the time.” (Tr. 131.) When
pressed on cross-examination to elaborate about their daily
discussions he had difficulty providing specifics.
Q. What did you talk about?
A. He would tell me about, you know—like, I like
cars and—would tell us about—you know, I just got the
job. So, cars we were going to buy and he would tell me
about his wife and I would tell him about my girlfriend,
you know, just things like that. You know, we kind of
talked personal because we were pretty good friends.
Q. What did he tell you about his wife? [Tr. 142.]
A. I do not know, just about—we would get—let us
see, just about things that they would do. You know, like
if they went down—went to eat like, on the weekend or
something. They went out. He would tell me, you know,
that he went to a bar and had a few drinks or something.
You know what I mean. I do not know. We would just
tell each other what we would do on the weekends and
stuff and just talk like friends would talk. [Tr. 142–143.]
Lightfoot viewed his relationship with Tipton quite differ-
ently. He stated that he and Tipton only discussed work-related
matters. He specifically denied that he ever talked to Tipton
about what he did on weekends and stated that he never took
any breaks with him or any other employees. (Tr. 359.) It was
against his policy to do so. Notably, Lightfoot testified that he
is not married, and that he has been divorced for over 5 years.
He specifically denied that he ever told Tipton about his mar-
ried life.
In addition, Lightfoot appeared to be a gentleman in his early
forties. Tipton is 20 years old. (Tr. 143.) Watching both of
them on the witness stand and listening to them testify, I had
doubts that a “40s-something” supervisor would discuss his
personal life with a 20-year-old temporary employee.
Moreover, the circumstances surrounding the purported in-
terrogation make it less, than more, likely that any interrogation
took place. First, the evidence shows that Lightfoot was not
Tipton’s supervisor in December 2002, when the purported
interrogations took place and had not been Tipton’s supervisor
for almost 2 months. Tipton testified that once he became a
permanent employee in October 2002, he was supervised by
Larry Beatty, John Tollfree, and Bob Cobb. (Tr. 128.) He
stated that Lightfoot might have supervised him for a week
sometime after he became a permanent employee, but was not
certain about that, and never stated that Lightfoot was his su-
pervisor at the time of the purported interrogation. Next, there
is no evidence that Tipton was actively involved in the union
organizing campaign or that he and Lightfoot had ever dis-
cussed unions at any time in the past. To the contrary, Tipton
testified that he and Lightfoot had never before discussed un-
ions. (Tr. 142.) Thus, there was no reason for Lightfoot to
single out Tipton—of all employees—and question him about
signing “that union card” and then warn him about what would
happen if the Union was selected.
For these, and demeanor reasons, I credit Lightfoot’s testi-
mony denying that he was “good friends” with Tipton, denying
that he took breaks with him, and denying that he discussed his
personal life with Tipton. I also credit Lightfoot’s testimony
denying that he questioned Tipton about signing a union au-
thorization card and that he told him that the Respondent’s
owner would close the Owensboro plant, move all the work to
Chicago, and everyone would lose their jobs.
In addition, Tipton’s testimony about the interrogation of
employee Rachel Roloson is uncorroborated. The undisputed
evidence shows that Roloson is still employed by the Respon-
dent. (Tr. 361.) She was not called by the General Counsel or
the Charging Party as a witness. Nor was she subpoenaed to
testify. No explanation was given for her absence. I decline to
draw an adverse inference from Roloson’s failure to be called
as a witness because I do not know whether she favors or disfa-
vors the Union. However, I do weigh as part of my credibility
determination of Tipton’s testimony the failure of the General
Counsel to call a potentially corroborating witness. See C & S
Distributors, 321 NLRB 404 fn. 2 (1996.) Thus, in the absence
of any corroborating testimony, and for demeanor reasons, I
credit Lightfoot’s testimony denying that he ever interrogated
or questioned Rachel Roloson.
Based on my credibility findings above, there is no evidence
to support the allegations that Supervisor Donald Lightfoot
unlawfully questioned and threatened Joshua Tipton and Rachel
Roloson in violation of Section 8(a)(1) of the Act. Accord-
ingly, I shall recommend the dismissal of the allegations con-
tained in paragraphs 5(a) and (b)5 of the complaint.
2. Alleged unlawful termination of Josh Tipton
a. Facts
The Respondent had an ongoing problem with graffiti on the
men’s restroom walls. The problem became worse in the sum-
mer of 2002. In July–August 2002, the Respondent posted a
notice for a $250 cash reward for information leading to the
positive identification of the individual(s) responsible for the
graffiti.6 (Tr. 230; R. Exh. 21.) No information was provided.
On July 31, someone drew graffiti and smeared feces on the
men’s restroom walls. (Tr. 232.) The Respondent immediately
posted a notice for a $1000 cash reward for information leading
to the positive identification of the person(s) responsible for

5 A motion was granted to withdraw the allegations of subpart 5(c)
of the complaint. (Tr. 165.)
6 During the same time that the reward was posted, the Respondent
terminated the temporary employment of temporary employee Travis
Clark because he was found drawing inappropriate pictures on a work
table. (R. Exh. 29.)
WEST IRVING DIE CASTING OF KENTUCKY, INC. 353
vandalizing the men’s restroom stalls earlier that day. (Tr. 232;
R. Exh. 22.) No one came forward with the requested informa-
tion.
A week or so later, racial slurs were written on the stalls of
the men’s restroom. The Respondent promptly issued a memo
to all employees stating that unlawful discrimination and/or
harassment of any kind would not be tolerated. It also asked
for help in identifying the person(s) responsible for writing the
racial slurs. (R. Exh. 23.) The frequency and content of the
graffiti abated for a while after the memo was posted. (Tr.
234.)
In December 2002, new graffiti, more graphic and sexual in
nature, began appearing in the men’s restroom. (R. Exh. 24.) It
also included inappropriate references to the Respondent’s
human resources generalist, Sonya Hendrix. In early January
2003, the Respondent began monitoring the men’s restrooms.
On January 9, there were no reports of additional graffiti on
the first shift. Before leaving for the day, Hendrix gave second-
shift Supervisor Bob Cobb specific instructions to call her at
home if new graffiti appeared so she could return to the plant to
take a photo. (Tr. 238.) That night, new graffiti sexual in na-
ture appeared in a men’s restroom stall. Because of its graphic
nature and specific reference to Hendrix, Cobb called General
Manager Al Aquino, who told him not to call Hendrix and to
paint over the graffiti. When Hendrix came to work the next
morning, she was told about the new graffiti and became ex-
tremely upset with Cobb for not following her instructions. She
directed Cobb to make a drawing of the graffiti which he did.
(R. Exh. 24.)
Hendrix suspected a second-shift employee, James
Matchem, might be responsible for the recent graffiti. She and
Matchem had several recent disagreements. (Tr. 330.) She told
Cobb to arrange the breaks on the second shift so that Cobb
could check the men’s restroom before and after Matchem took
his breaks.
The second shift on January 10 started at 2 p.m., Matchem’s
first break was scheduled for 4 p.m. One hour before (3 p.m.),
Cobb checked the men’s restroom stalls and found no graffiti.
There are two versions of what occurred next.
Tipton testified that he started the shift and worked about 30
minutes before going to the men’s restroom where he used a
urinal. (Tr. 134.) He stated that he did not see anyone else in
the restroom, but he thought he heard a few people in a con-
necting changing area.7 (Tr. 135–136.) He returned to his
machine and continued working for another 20 minutes. (Tr.
137.) At that point, Bob Cobb approached him asking if he had
a black marker.8 Tipton told Cobb that he did not have a
marker on him. He looked on his table and found a marker
behind some books. (Tr. 137.) He gave the marker to Cobb
and returned to work.

7 Tipton then stated that he could not remember if he actually heard
anyone and finally stated, “I do not think I did.” (Tr. 136.)
8 The credible evidence shows that black markers are used by trim-
mers to mark parts cut by the machine operators. It also shows that
these markers typically are found on the work floor and worktable. (Tr.
162.)
Cobb testified that at 3:45 p.m., he entered the restroom.
(Tr. 330.) He first checked all the stalls for graffiti and found
none. As he was washing his hands, talking to Larry Beatty,
Tipton entered the room, walked into the second stall, and
closed the door.9 (Tr. 331.) Cobb stated that there were two
other people walking through the restroom from the breakroom.
(Tr. 345.) He and Beatty waited until they left, then Beatty left,
and finally Cobb left the room, leaving Tipton behind.
For demeanor reasons, I credit Cobb’s testimony that he saw
Tipton enter the second stall in the men’s restroom.
Cobb stated that he came out of the restroom onto the shop
floor, turned left, and walked down between two machines. He
walked back up the floor, around the back of the building, back
down the floor, and back to the men’s restroom. (Tr. 332–333.)
He could not recall whether he stopped to talk to anyone. He
estimated that the walk took 2 minutes (120 seconds). Cobb
stated that he returned to the men’s restroom because it was
close to 4 p.m. when Matchem was going on break and he
wanted to check the stalls one more time. (Tr. 334.)
Cobb entered the restroom and began checking the stalls. He
testified that when he looked in the second stall he saw graffiti
that had not been there before Tipton entered the restroom. He
immediately reported the situation to General Manager Aquino,
who instructed him to go back out on the floor to see if he
could find anyone who had a black marker. (Tr. 335.) Because
he had seen Tipton go into the second stall, he started with him.
Cobb testified that when he asked Tipton if he had a black
marker, “Josh reached into his pocket and got his hand about
halfway into his pocket and looked at me and then said, no. I
don’t have one.” (Tr. 336.) He asked Tipton if he was sure,
and Tipton looked around his table, felt around his bucket, and
found a marker in his bucket. Cobb stated that he walked the
shop floor asking each trimmer and operator if they had a black
pen, and checked everyone’s desk. Tipton’s marker was the
only one he could find on the floor at the time. (Tr. 337.)
In the meantime, Aquino went into the men’s restroom and
took a photo of the graffiti. After Cobb canvassed the shop
floor, he reported to Aquino that he had found a black marker
on Tipton. Aquino gave Cobb the photo and told him to meet
with Hendrix to discuss the incident. (Tr. 337.)
Hendrix and Cobb compared the handwriting on Tipton’s
employment application to the handwriting on the graffiti.
They concluded that it was similar. (Tr. 338.) Cobb was in-
structed to bring Tipton to the training room. Cobb asked Tip-
ton to accompany him to the training room, but he did not tell
him why.
Hendrix, Cobb, and Tipton met in the training room, where
Hendrix confronted Tipton accusing him of drawing the graf-
fiti. Cobb tape recorded the meeting. (Tr. 339.) Hendrix
showed Tipton a camcorder image of the graffiti. Tipton de-
nied drawing it. (Tr. 138.) According to Cobb, Hendrix told
Tipton that drawing graffiti on company walls was grounds for
discharge. Tipton insisted that he was not responsible. (Tr.
339.) He asked if he was going to be terminated, and Hendrix
told him that he would be suspended until the following Mon-

9 According to Cobb’s unrebutted testimony, on January 10, 2003,
Beatty was no longer a supervisor. (Tr. 343, 347.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD354
day, January 13, while she further investigated the matter.
Cobb took Tipton up to the front office and called his mother to
come pick him up.
On Monday, January 13, Hendrix phoned Tipton around 1
p.m. telling him that he should not report to work because she
had not completed her investigation. (Tr. 257–258.) Tipton
came to work anyway and was sent home. On January 16,
Hendrix sent Tipton a letter telling him that he was still sus-
pended until further notice. (R. Exh. 27.)
In the meantime, the Respondent hired a certified graphoana-
lyst, Ada Meyers, to analyze the hand printing that accompa-
nied the graffiti. (Tr. 267; R. Exh. 28.) Meyers was given
handwriting samples of four second-shift employees for com-
parisons: James Matchem, who Hendrix initially believed was
drawing the graffiti; employee Robert Griffiths; Maintenance
Manager Mike Welsh; and Josh Tipton. Meyers concluded that
Matchem, Griffith, and Welch probably were not the author of
the questioned hand printing. Meyers also concluded that there
was a possibility that Tipton was the author of the graffiti that
was written in the stall on January 10.10 She recommended that
“[a]dditional hand printing should be obtained from the author
of K-4 (Tipton) with printing in the matching case as on the
questioned.” Hendrix did not follow up on Meyer’s recom-
mendation.
Hendrix decided to terminate Tipton. She testified that her
decision was based on the fact that Tipton was seen going into
the stall in which the graffiti was found, he had a black marker
at his worktable, and that Meyer’s concluded that it was a pos-
sibility that Tipton drew the graffiti. By letter, dated January
30, 2003, she notified Tipton of her decision. (R. Exh. 33.)
b. Analysis and findings
The complaint alleges that Tipton was discharged because he
supported the Union. The General Counsel argues that after
defeating the Union in the first election by a 6-vote margin, the
Respondent anticipated a close second election, and therefore it
sought to eliminate a potential vote for the Union by discharg-
ing Tipton.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
established an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer-
ence that union activity and/or support was a motivating factor
in the employer’s decision.11 Specifically, the General Counsel
must establish union activity, knowledge, animus or hostility,
and adverse action, which tends to encourage or discourage
union activity. Farmer Bros. Co., 303 NLRB 638, 649 (1991).
Inferences of animus and unlawful motive may be inferred
from the total circumstances proved and in some circumstances
may be inferred in the absence of direct evidence. Fluor
Daniel, Inc., 304 NLRB 970 (1991). Once accomplished, the
burden shifts to the employer to persuasively establish by a
preponderance of the evidence that the reasons for its decision

10 A photo of another graffiti writing was also given to Meyer as an
example. None of the four employees was linked to that example.
11 In Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
were not pretextual or that it would have made the same deci-
sion, even in the absence of protected concerted activity. T & J
Trucking Co., 316 NLRB 771 (1995).
Although there is no evidence that Tipton was actively en-
gaged in the union organizing campaign, the undisputed evi-
dence shows that Tipton signed a union authorization card. It
also shows that his family members were union officers and/or
officials and, as a result, he supported the Union.
There is no credible evidence, however, that the Respondent
or any of its managers and supervisors had knowledge that
Tipton signed a union authorization card, that he supported the
Union, or that he had family ties with organized labor. In the
absence of any credible evidence showing that the Respondent
knew that Tipton supported the Union, the General Counsel has
failed to satisfy its initial evidentiary burden under Wright Line.
Accordingly, I shall recommend the dismissal of paragraph 6(a)
of the complaint.
B. Joe Shelton
1. Facts
On October 15, 2000, Joe Shelton began working for the Re-
spondent as a second-shift trimmer. Five months later, he was
promoted to X-ray technician.
Shelton became an active union supporter in the first orga-
nizing campaign. He distributed union authorization cards and
union buttons to other employees and regularly wore union
paraphernalia at work. He handbilled outside the Respondent’s
facility and asked questions during antiunion meetings con-
ducted by Hendrix and her boss, Controller Greg Byars.
In January 2002, Shelton questioned Hendrix on the shop
floor about a request he made to transfer to the first shift. He
opined that the Respondent’s failure to keep him apprised of
the status of his transfer had caused him to support the Union.12
In a later conversation with Hendrix, Shelton told her that he
was knowledgeable about unions because his father was a un-
ion business agent. The evidence shows that he also had a one-
to-one conversation with Company President Adrian Walsh
during which Shelton answered Walsh’s questions about what
the employees hoped to obtain by unionizing. (Tr. 92.) After
the first election, Shelton also told Hendrix that he and another
employee had called the Union because they were upset about
insurance coverage. (Tr. 228.)
Shelton was equally active in the second organizing cam-
paign. In December 2002, he distributed union authorization
cards to the employees and handbilled outside the Respondent’s
facility.
a. The attendance policy
The Respondent has a written attendance policy, which
states, in relevant part:
5. An employee is required to call in any absence as ex-
plained elsewhere in this handbook. Each unreported absence
(no call + no show) will be counted as two (2) points. Three
(3) days of consecutive unreported absences will be consid-
ered a voluntary resignation from the Company. [R. Exh. 1.]

12 Shelton was transferred to the first shift in the spring of 2002.
WEST IRVING DIE CASTING OF KENTUCKY, INC. 355
Employees are expected to call-in at least 30 minutes before the
start of their shift to report an absence or delayed arrival. In an
effort to ensure accurate compliance with this policy, the Re-
spondent established a “400 Extension” for the employees to
call.
On April 15, 2002, the Respondent posted a memo to “All
Employees” which stated:
We have now set up a voice mailbox for employees to
call in and report off to. The extension to dial will be
EXTENSION 400. On your message; leave your name, the
date you will be out, supervisor’s name, and shift. Please re-
member that you must report off at least 30 minutes prior to
your shift. If not, per the handbook, it is considered No Call
No Show. We will use the time and date stamp on the voice
message system as your report off time. If you have any
questions please see your immediate supervisor.
The only number you can call and report to is this mes-
sage box, (683-9001 ext 400)[.] If you call into a supervisor
you will be transferred to the mail box!!! [R. Exh. 2.]
On April 25, the Respondent held training sessions to ex-
plain to the employees how to use the 400 extension system.
(Tr. 175.) Shelton attended the second-shift training session.
He subsequently followed the call 400 extension policy on
several occasions (e.g., 7/18/02, 7/22/02, 8/28/02, 9/21/02,
10/4/02, 10/15/02, and 12/13–16/02). (Tr. 206–208; R. Exh.
10.) By January 20, 2003, Shelton had accumulated 1.5 points
for absenteeism.13
b. January 22–24, 2003
During the week of January 19–23, 2003, the Respondent
began holding group antiunion employee meetings in connec-
tion with the Board election that was scheduled to be held on
February 21, 2003. (Tr. 281–282.)
On Wednesday, January 22, Shelton woke up ill and was un-
able to go to work. Shelton testified that his home telephone
had been disconnected, so his wife drove him to a nearby pay
phone to call in sick.14 (Tr. 95.) Shelton further testified that
he called the 400 extension at “5:20-ish a.m.” and left his name,
shift, and that he would not be reporting to work because he
was ill. He also reported that he was going to see a doctor that
afternoon. (Tr. 95–96, 113.) Shelton’s doctor excused him
from work until Monday, January 27. (GC Exh. 4.)
Shelton testified that on Thursday, January 23, his home
phone was working so he called the 400 extension from home
at 5:15 am to report that he was sick, that he had been to the
doctor, and that he would be off until Monday, January 27. (Tr.
98.) He testified that he also called Sonya Hendrix’ extension
in the afternoon leaving a voice message that he had a doctor’s
excuse and that he would be off until January 27. Shelton
stated that it is his practice never to leave a voice mail message
on the 400 extension without making a second call to confirm
receipt of the first call and voice message. (Tr. 100.)

13 Contrary to the Respondent’s assertions, there is no evidence that
any of these points resulted from failing to call the 400 extension.
14 Shelton’s wife corroborated his testimony that on January 22, he
was ill and that their home phone was not working so she drove him to
a pay phone before 5:30 a.m. (Tr. 119–120.)
Supervisor Donald Lightfoot was working the first shift the
week of January 19, 2003. Lightfoot testified that he routinely
checks the 400 extension at 5:30 a.m. to determine whether
anyone on his shift has left a message. He stated that he
checked the 400 extension for messages at 5:30 a.m. on January
22 and 23, but there was no message from Joe Shelton. (Tr.
363–365, 369.) He checked the 400 extension again a little
later, but there was no call from Shelton. (Tr. 366.) Lightfoot
filled out an attendance report on both days showing that Shel-
ton did not call in. (R. Exhs. 4 and 5.)
On January 23, Lightfoot reported Shelton’s absences to
Human Resources Specialist Sonya Hendrix, who determined
that Shelton had accumulated 5.5 points, which warranted a 3-
day working suspension.15 (Tr. 183.) Anticipating that Shelton
would return to work on January 24, Hendrix gave Lightfoot a
written suspension notice to give to Shelton when he came to
work on January 24. (Tr. 368, 186; R. Exh. 6.)
In the meantime, on January 23, Hendrix checked her own
voice messages and found a message left by Shelton. (Tr. 193.)
She testified she did not listen to the entire message, but instead
saved the message after hearing the part which identified the
caller’s name, his shift, and that he was calling from a pay
phone because his home phone did not work. (Tr. 193, 225.)16
On Friday, January 24, Shelton did not report to work and
did not call the 400 extension, so Lightfoot returned the suspen-
sion warning to Hendrix.17 (Tr. 369.) Hendrix testified that she
believed that Shelton had voluntarily quit so she had hired a
replacement for him on January 24.18 (Tr. 197, 288.)
Instead, on January 24, Shelton rode with his wife to the
plant to pick up his paycheck. He waited in the car, while his
wife went into the office to ask for his check. (Tr. 101–102.)
According to Mrs. Shelton, her husband stayed in the car be-
cause he was still sick, running a fever, and it was very cold.
(Tr. 121.) When she entered the front office, a gentleman,
identified at trial as Controller Greg Byars, handed her the pay-
check and asked, “[H]ow Joe was doing.” (Tr. 122.) She told
him that he went to the doctor and had a doctor’s excuse. Mrs.
Shelton stated that Byars told her to have Shelton bring the
doctor’s note when he returned to work.
c. January 27–February 4, 2003
On Monday, January 27, Shelton did not return to work. He
testified that he called the 400 extension to report that he still
was not feeling well and that he been seen by the doctor again.
(Tr. 102.) He stated that the doctor wanted to do more tests so
he extended Shelton’s excused absence to Monday, February 3.

15 Hendrix testified that a working suspension does not result in ac-
tual lost workdays. Rather, it serves as a final warning to the employee
that another infraction could result in discharge. (Tr. 186.)
16 Hendrix testified that she did not listen to the entire message, but
instead saved it. She later testified that she listened to the entire mes-
sage “sometime during the week that it was left.” (Tr. 193, 223.)
17 Lightfoot apparently did not complete an attendance report reflect-
ing a no-call/no-show on January 24. (Tr. 294, 300.)
18 Although Hendrix testified that she thought that Shelton had vol-
untarily quit on January 24, she nevertheless saved and kept the January
23 voice message, and another voice message of January 30, for at least
2 months, “because I figured I would get an unfair labor practice.” (Tr.
306, 314.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD356
(GC Exh. 14.) Shelton testified that in between January 27 and
February 3, he tried to contact Hendrix at least three times and
left one voice message in her voice mail on Wednesday, Janu-
ary 29. (Tr. 105–106.) He also stated that he left a voice mes-
sage on the 400 extension on the morning of January 27, 28,
and 29.
Hendrix was out of the plant on January 27. She testified
that when she returned on January 28, Lightfoot told her that
Shelton had called the 400 extension on January 27 and 28.19
(Tr. 195–196, 313.) She stated that she “wondered what he was
doing,” but did not contact him to clarify matters. (Tr. 299–
300.) Instead, she applied the points and terminated his em-
ployment. (Tr. 299.) Hendrix testified that the fact that Shel-
ton had properly called in on January 27 and 28, had no impact
on her decision to terminate his employment because he had
“pointed out” on January 24. (Tr. 196.) However, she also
testified that because he called the 400 extension on January 27
and 28, she felt it was necessary to send him a certified mail
letter on January 28 telling him that he was terminated, effec-
tive January 27, 2003. (Tr. 197–198; R. Exh. 7.)
On Thursday, January 30, Shelton left a message on
Hendrix’ voice mail indicating he had another doctor’s ap-
pointment and would be off work until the following Monday.
(Tr. 223.) Hendrix testified that she saved the message without
listening to it because she thought it was the original message
of January 23. (Tr. 291–293.) She stated that she did not listen
to the January 30 voice message until after an unfair labor prac-
tice charge had been filed in March 2003. (Tr. 224.)
On Monday, February 3, Shelton returned to work. He testi-
fied that when he got to work Supervisor Lightfoot told him
that Greg Byars wanted to see him, but that Byars had not ar-
rived. Shelton further testified he attempted to give Lightfoot
his doctor’s statement, but Lightfoot would not take them. He
testified that he worked for approximately 30 minutes at which
time Lightfoot took him to the office of General Manager Al
Aquino. (Tr. 108–109.) Aquino and Lightfoot discussed the
fact that Byars had not arrived, and therefore told Shelton to go
home and call Hendrix later in the day. (Tr. 109.)
Lightfoot testified that Shelton was not allowed to work
when he arrived on Monday, February 3. According to
Lightfoot, he told Shelton that he needed to leave and contact
human resources. He did not deny taking Shelton to Aquino’s
office to wait for Greg Byars nor did Lightfoot deny that he and
Aquino sent Lightfoot home with instructions to call Hendrix
later that day. Also, Lightfoot admitted that Shelton asked him
if he wanted to see the doctor’s notes, but Lightfoot told him to
show them to human resources. (Tr. 370.)
Shelton testified that after he got home, he twice called
Hendrix and left messages on her voice mail, but she never
returned his calls. (Tr. 109.) Hendrix denied that she received
any calls from Shelton. (Tr. 200.)
On February 4, Shelton picked up his January 28 termination
letter from the U.S. Post Office and learned for the first time

19 Hendrix testified that Lightfoot did not complete any attendance
reports for Shelton on January 27 and 28, because Lightfoot thought
that Shelton had quit. (Tr. 227.)
that he had been terminated on January 27, for failing to prop-
erly report his absence. (GC Exh. 9.)
2. Credibility determinations
Shelton’s testimony that he called the 400 extension on
January 22 and 23 is unpersuasive. First, it was rebutted by the
credible testimony of Supervisor Lightfoot, who stated that he
checked the 400 extension voice messages twice on both days,
and did not find a voice message from Shelton.
Next, Shelton’s failure to follow his own practice on January
22 makes it more, than less, likely that he did not call the 400
extension that morning. He testified that he never leaves a
voice message on the 400 extension without following up with
a second phone call later in the day to confirm that the first
voice message was received and to offer more details if needed.
(Tr. 100.) Shelton admitted that he did not follow his practice
on January 22.20 When asked why, he stated, “[B]ecause I did
not want to get back out to make a call and I had not gotten my
phone turned back on until late afternoon.” (Tr. 101.) His
explanation was unconvincing. The evidence shows that Shel-
ton had gone to the doctor’s office at 1 p.m. that afternoon, so
conceivably he could have called from the doctor’s office or on
the way home from the doctor’s office. He also could have
called later that afternoon when his home phone was working
again. (Tr. 101.) The evidence supports a reasonable inference
that Shelton did make the second call because he never made
the first.
In addition, Shelton’s testimony that he called in twice on
January 23 was vague and contradictory. (Tr. 98–101.) He
stated that on January 23, he called the 400 extension around
5:15 a.m. and that he called again “[i]n the afternoon” from his
home phone stating that he “was off work, I had a Doctor’s
excuse and gave the amount of time that I was off work, ac-
cording to that.” (Tr. 98.) When asked to be more specific
about the afternoon phone call, he contradicted himself by testi-
fying that he “tried to call in, at around 10:00, I think.” (Tr.
100.)
Finally, Shelton’s testimony concerning the January 23 voice
message was contradicted by Respondent’s Exhibit 35, a tran-
scription of the voice message he left on Sonya Hendrix’ voice
mail on January 23, 2003, at 10:57 a.m.,21 which states:
This is Joe Shelton on first shift. I’m gonna be off un-
til Monday [1/27/]. I would have give you a call this
morning but since my phone service is out that’s pretty
unlikely that that would happen so I’ll probably bring my
paperwork and stuff by Friday or have it brought by Fri-
day to pick up my paycheck.
Thank you.

20 Nor does the evidence show that Shelton made “followup” phone
calls on January 27 or 28.
21 The voice message tape was played in open court to verify its con-
tent, date, and time. It was properly authenticated as the voice of Joe
Shelton and admitted over the objection of the General Counsel. The
content of R. Exh. 35 substantially comforts with the contents of the
actual tape. (Tr. 190–192.) The General Counsel did not call Shelton
on rebuttal to dispute that this was his voice or the message that he left
on Hendrix’ voice mail.
WEST IRVING DIE CASTING OF KENTUCKY, INC. 357
Synthetic Voice: “January 23 at 10:57.”
Thus, contrary to his testimony that his home phone was work-
ing again in the late afternoon of January 22, his voice mail
message states that his home phone was not working on Janu-
ary 23. Further, and more importantly, the voice message does
not mention that he called the 400 extension earlier that day.
Rather, Shelton’s message explained that he did not “call this
morning.” Finally, if the purpose of the second phone call was
to confirm that the first phone message was received, it is rea-
sonable to expect that Shelton at least would have mentioned
the first call in the second message to alert Hendrix that he
called earlier and to let her know that he was calling to confirm
receipt of his first phone call. Instead, the content of the second
phone call as reflected above is what one would expect in a first
phone call to the 400 extension.
For these, and demeanor reasons, I do not credit Shelton’s
testimony that he called the 400 extension on January 22 and
23, 2003.
Nor do I credit Shelton’s testimony that he worked approxi-
mately 30 minutes on February 3. Here too Lightfoot, a more
credible witness, denied that he allowed Shelton to start work.
In addition, the Respondent’s timesheets for February 3 do not
reflect that Shelton punched in. (R. Exh. 37.) However,
Lightfoot did not rebut Shelton’s testimony that he was made to
wait outside of Aquino’s office while Lightfoot and Aquino
decided on what to do with Shelton. Nor did he rebut Shelton’s
testimony that Shelton was told to go home and call Hendrix
later. General Manager Al Aquino was not called as a witness
at trial. Nor did Respondent’s counsel explain why. The fail-
ure to call a witness whose testimony would reasonably be
presumed to favor the Respondent warrants an adverse infer-
ence that had he been called as a witness his testimony would
not have supported the Respondent’s position. I find an ad-
verse inference is warranted. Accordingly, I credit the aspect
of Shelton’s unrebutted testimony that on February 3, he was
told by Aquino and Lightfoot to go home and call Hendrix
later. I also credit Shelton’s testimony that he attempted to give
Lightfoot the doctor’s notes, which was corroborated by
Lightfoot.
Sonya Hendrix’ testimony that she and Supervisor Don
Lightfoot thought Joe Shelton had voluntarily quit on January
24 is disingenuous and unpersuasive. First, the undisputed
evidence shows that on January 23, Hendrix received and lis-
tened to a voice message from Shelton on her voice mail that
(1) identified the caller and his shift, (2) explained that he
would be off until Monday (January 27, 2003), and (3) told her
that his phone service was out. Although Hendrix testified that
she did not listen to the entire message before saving it, she
admitted that she heard the part which identified the caller’s
name, his shift, and that he was calling from a pay phone be-
cause his home phone did not work. (Tr. 190, 193, 225, 288–
289.) However, in order for Hendrix to have heard the part of
the message stating that Shelton’s phone service was out, she
also had to listen to the part stating that he would be returning
to work on Monday, January 27. According to Respondent’s
Exhibit 35, the transcription of the January 23 voice message
states:
This is Joe Shelton on first shift. I’m gonna be off until Mon-
day [1/27]. I would have give you a call this morning But
since my phone service is out that’s pretty. . . .
One could not reasonably infer from that message that Shelton
had quit or was planning on quitting. Moreover, that Shelton
did not show up for work on Friday, January 24, should not
have come as a surprise because the above-voice message
clearly states that he would be off until Monday, January 27.
In addition, Hendrix’ testimony that Supervisor Don
Lightfoot also thought that Shelton had quit is unsupported by
the evidence. Hendrix testified that when Shelton did not re-
turn to work on January 24, Lightfoot “assumed he had quit.”
(Tr. 187, 227.) She further testified that on January 28, when
Lightfoot told her that Shelton had called the 400 extension on
January 27 and 28, he told her, “[W]ell, I thought he quit.” (Tr.
195.)
Lightfoot testified at trial after Hendrix. He never once,
however, stated that he thought that Shelton had quit. Rather,
Lightfoot testified he and Shelton got along great and that “I
was worried because he missed those two days and this—.”
(Tr. 367.) Although Lightfoot explained that he returned the
working suspension form to Hendrix because Shelton did not
show up for work, he did not state that he thought that Shelton
had quit or that he told Hendrix that he thought Shelton had
quit. (Tr. 367–370.) The failure of Lightfoot to corroborate
Hendrix’ testimony that he told her that he believed Shelton
had quit makes her testimony on this point suspect.
For these, and demeanor reasons, I do not credit Hendrix’
testimony that she thought Shelton had quit when he did not go
to work on January 24.
Finally, I credit Shelton’s testimony that he twice called and
left voice messages for Hendrix on February 3, but that she did
not return his calls. The undisputed evidence shows that at no
time did Hendrix contact or attempt to contact Shelton by tele-
phone to confirm that he was sick or clarify when he was going
to return to work even though she admitted she was unsure of
his circumstances. (Tr. 298–299.) Her failure to return Shel-
ton’s February 3 telephone calls is consistent with her conduct
of not having any direct contact with him throughout the events
surrounding his termination.
3. Analysis and findings
The complaint alleges that on January 27, 2003, the Respon-
dent violated Section 8(a)(3) of the Act by discharging Joe
Shelton because of his union activity. The General Counsel
asserts that the Respondent anticipated that the second election,
which was less than a month away, would be close and that it
sought to eliminate potential votes for the Union. The Respon-
dent asserts that Shelton was terminated in accordance with its
established attendance policy. It further asserts that Shelton,
like several other employees, was terminated for failing to call
the 400 extension on January 22, 23, and 24, 2003. The Wright
Line analysis is applicable.
a. The General Counsel’s evidence
The undisputed evidence shows that Joe Shelton was an ac-
tive and open union supporter that was known to the Respon-
dent. The undisputed evidence also shows that his union activ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD358
ity was known to Sonya Hendrix, who terminated him. Shel-
ton’s unrebutted testimony shows that he told Hendrix that he
contacted the Union for purposes of organizing the Respon-
dent’s employees because he was displeased with many of the
Respondent’s policies.
Shelton was not terminated on January 24 for failing to call
the 400 extension on January 22–24. Instead, Hendrix waited
until Tuesday, January 28. The evidence shows that at no time
did Hendrix attempt to contact Shelton, even though there were
ample opportunities and ample reasons for her to do so.
First, Hendrix knew from listening to Shelton’s detailed
phone message on January 23, that his home phone was out of
order, that he would not return to work until Monday, January
27, and that he had a doctor’s note excusing him from work for
those days. In addition, the evidence supports a reasonable
inference that Hendrix’ boss, Controller Greg Byars knew that
Shelton was sick because according to the unrebutted testimony
of Shelton’s wife, Byars inquired about Shelton’s health when
she picked up his paycheck on January 24. At that time, Shel-
ton’s wife told Byars that her husband was still ill, that he had a
doctor’s note and that he hoped to return to work on Monday,
January 27. Byars reminded her to have Shelton bring in his
doctor’s note when he returned to work.
Next, although Shelton did not report to work on January 27
and 28, he called the 400 extension to report his absences for
those days. Hendrix admitted that she did not know what was
going on when Supervisor Lightfoot informed her on January
28 that Shelton had called the 400 extension on January 27 and
28. Instead of phoning Shelton to confirm his return date or to
clarify his status, Hendrix decided to terminate Shelton retroac-
tively to January 27, and to inform him of the decision by certi-
fied letter.
In contrast, the undisputed evidence shows that two other
employees, who failed to call the 400 extension, Brian Mead-
ows and Greg Devine,22 were terminated, but before doing so
Hendrix called them to discuss the reasons for their absences
and their failure to call the 400 extension. (GC Exh. 12, p. 2;
R. Exh. 11(a).) With respect to Brian Meadows, Hendrix ad-
mitted that she testified during Meadows’ unemployment insur-
ance hearing that she called him “and left him a message for
him to come in and speak to her to see if anything could be
done concerning this situation due to the reason he was last
absent.”23 (Tr. 296; GC Exh. 12.) She then contradicted her-
self by denying that she called Meadows to see if anything
could be done regarding Meadows’ situation. Hendrix stated
that had she actually talked with Meadows she would have
explained to him that his doctor’s note would not be accepted.
(Tr. 297.) I find Hendrix’ post hoc explanation to be contradic-
tory, self-serving, and unpersuasive. Moreover, the point is that
she called Meadows to discuss his circumstances which is an
accommodation that was not extended to Shelton.
With respect to Greg Devine, the evidence shows that
Hendrix called him twice prior to terminating him. The first

22 The evidence shows that Devine was terminated on April 25,
2003. (R. Exh. 11.)
23 Meadows received the phone message, did not return the call, and
was terminated.
time she called him she got no answer. She called him again
later the same day to tell him that he was being terminated for
not leaving a message on the 400 extension with a specific
return date. (R. Exh. 11(a).) There is no evidence that Devine
offered Hendrix a doctor’s note.
Thus, the evidence discloses that on at least two other occa-
sions involving terminations for not calling the 400 extension,
Hendrix called and left a message and called and spoke to the
employee before terminating him. In the present case, Hendrix
made no attempt to call Shelton before or after his termination.
This evidence, coupled with the fact that Shelton was the lead-
ing union advocate, and the fact that the second union election
was less than a month away, supports a reasonable inference
that Hendrix terminated him without giving him the opportu-
nity to submit his doctor’s notes and without giving him the
opportunity to explain his absences because of his union activ-
ity and, in addition, because he was a sure vote for the Union.
Accordingly, I find that the General Counsel has satisfied his
Wright Line evidentiary burden.
b. The Respondent’s evidence
The Respondent argues, and the credible evidence shows,
that Shelton did not call the 400 extension to report his ab-
sences on January 22, 23, and 24; that calling the supervisor’s
extension or the human resources generalist’s extension does
not satisfy the requirement of calling the 400 extension; and
that, absent a doctor’s note, Shelton had accumulated enough
points to warrant termination under the Respondent’s atten-
dance policy. The evidence also shows that the Respondent has
disciplined other employees for failing to call the 400 exten-
sion. (Tr. 209–221; R. Exh. 12–20.)
Regarding the termination of Brian Meadows, Hendrix testi-
fied that the only reason she called him and left a message was
because Meadows tried to give his supervisor a doctor’s note
and the supervisor, instead of taking the doctor’s note, told
Meadows that Hendrix would call him. Hendrix further testi-
fied that she would not have accepted his doctor’s note, even if
she had spoken to him. (Tr. 296–297.) However, regarding
Greg Devine, Hendrix did not explain why she called him twice
before terminating him. (R. Exh. 11(a), pp. 4 and 5.)
The evidence shows that Hendrix knew from the January 23
voice message and Controller Greg Byars knew from talking to
Shelton’s wife, that Shelton had a doctor’s note excusing his
absence. Unlike Meadows, however, Hendrix did not call Shel-
ton to discuss his circumstance before terminating him. Sig-
nificantly, unlike Meadows, Hendrix testified that had Shelton
turned in these doctor’s notes, she would have accepted them:
Q. On February 3, did Joe Shelton mail to you or fax
to you or transmit to you, in any way, any medical or other
statements concerning his absences prior to Monday, Feb-
ruary 3?
A. No.
Q. Would you have accepted those or would you have
looked at them had he offered them?
A. Yeah. [Tr. 201.]
The unrebutted evidence shows that on January 24, Byars told
Shelton’s wife that Shelton should bring his doctor’s note when
WEST IRVING DIE CASTING OF KENTUCKY, INC. 359
he returns to work and that Shelton unsuccessfully attempted to
give Lightfoot the doctor’s notes when he returned to work on
February 3. The credible evidence also shows that Hendrix
failed to return Shelton’s phone calls on February 3, even
though she knew he had the doctor’s notes and stated at trial
that she was willing to accept them.24
Thus, based on all of the evidence viewed as a whole, I find
Joseph Shelton was not treated the same as other individuals
who were terminated for failing to call the 400 extension. I
further find that the Respondent has not persuasively shown
that Joseph Shelton would have been terminated, even in the
absence of his union activity.
Accordingly, I find that the Respondent violated Section
8(a)(3) of the Act on January 27, 2003, by terminating the em-
ployment of Joseph Shelton.
C. Challenged Ballots and Objections to the
Conduct of Election
Based on the findings above, the portion of Objection 1 per-
taining to the discharge of Joseph Shelton is sustained and the
portion of Objection 1 pertaining to Joshua Tipton is overruled.
Based on the findings above, the challenge to the ballot of
Joshua Tipton is sustained and his ballot should not be opened
or counted. In contrast, the challenge to the ballot of Joseph
Shelton is overruled and his ballot should be opened and
counted. The representation case is severed and remanded to
the Regional Director to open and count Joseph Shelton’s ballot

24 There is no evidence, nor did the Respondent argue in its posthear-
ing brief, that Shelton would have been terminated, like Meadows, even
if he turned in the doctor’s notes.
and to prepare and serve on the parties a revised tally of ballots
and issue the appropriate certification.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(3) of the Act by
terminating the employment of Joseph Shelton.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Charging Party Union’s Objection 1 is sustained and
constitutes objectionable conduct affecting the results of the
representational election held on February 21, 2003.
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 em-
ployee Joseph Shelton, it must offer him full reinstatement to
his former job or, if that job no longer exists, to a substantially
equivalent position, and make him whole for any loss of earn-
ings and other benefits, computed on a quarterly basis from
date of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]