BS&B Safety Systems, LLC

National Labor Relations Board - Administrative Judge Opinions

Oct 21, 2019

14-CA-239530 (N.L.R.B. Oct. 21, 2019)

JD-81-19
Tulsa, OK
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATJONS BOARD
DIVISION OF JUDGES
BS&B SAFETY SYSTEMS, L.L.C.
Respondent
and Case 14-CA-239530
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL
AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO/CLC
Charging Party
Rebecca Proctor, Esq.,
Counsel for the General Counsel
Sasha Shapiro, Esq,.
Counsel for Charging Party
R. Mark Solano, Esq. and Kevin Y. Litz, Esq.,
Counsel for Respondent
DECISION
STATEMENT OF THE CASE
Sharon Levinson Steckler, Administrative Law Judge. Charge 14-CA-239530 was
filed by Charging Party United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO/CLC (the Union) against
Respondent BS&B Safety Systems, L.L.C. (Respondent) on April 15, 2019. On May 23, 2019
the Union filed the first amended charge against Respondent. General Counsel issued a
Complaint in charge 14-CA-239530 on May 30, 2019. The Complaint alleges that Respondent
violated Section 8(a)(3) and (4) by terminating its employee and local union president Michael
Stroup. Although Respondent admits it terminated Stroup, it maintains it had legitimate business
reasons for doing so. I find Respondent violated the Act as alleged.
A trial was conducted on August 27 and 28, 2019 in Tulsa, Oklahoma. Counsel for the
General Counsel1 and the Respondent filed post-trial briefs in support of their positions, which I
have carefully considered. On the entire record, I make the following findings of fact, conclusions
of law, and recommendations.

1 The Union filed a post-hearing brief in which it adopted General Counsel’s brief and requested an additional
remedy.
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2
FINDINGS OF FACT2
I. JURISDICTION AND UNION STATUS
Respondent admits it is a Delaware limited liability company with an office and 5
manufacturing facility in Tulsa, Oklahoma (Respondent’s facility) and is engaged in the
manufacture and non-retail sale of pressure relief devices. In conducting its operations during
the 12-month period ending May 31, 2019, Respondent admits it sold and shipped from its Tulsa,
Oklahoma facility goods valued in excess of $50,000 directly to points outside the State of
Oklahoma and purchased and received goods valued in excess of $50,000 directly from points 10
outside the State of Oklahoma. 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.
I also find that the Union and the Union’s servicing agent, Local 4992 (Local 4992), are
labor organizations within the meaning of Section 2(5) of the Act. 15
II. RESPONDENT’S OPERATIONS
Respondent manufactures pressure relief devices that are used in military and non-military
applications. (Tr. 377.) Respondent has two production units within its Tulsa facility: RPP and 20
Custom Engineer Products (CEP). It also packages and ships the finished products to its
customers.
Dr. Charles Hart is the corporate director of human resources, employee health and
safety, and NAFTA. Respondent has employed him for over 11 years with general oversight for 25
Respondent’s human resources and occupational safety and health in Canada, the United States

2 Although I have included citations to the record to highlight particular testimony or exhibits, my findings and
conclusions are not based solely on those specific record citations, but rather upon my review and consideration of
the entire record for this case. My findings of fact encompass the credible testimony, evidence presented, and
logical inferences. The credibility analysis may rely upon a variety of factors, including, but not limited to, the
context of the witness testimony, the weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the record as a whole. Double D Construction
Group, 339 NLRB 303, 303–305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings
regarding any witness are not likely to be an all-or-nothing determination and I may believe that a witness testified
credibly regarding one fact but not on another. Daikichi Sushi, 335 NLRB at 622.
When a witness may reasonably be assumed to be favorably disposed to the party, an adverse inference
may be drawn regarding any factual question on which the witness is likely to have knowledge. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is particularly true where
the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348 NLRB 1016, 1022 (2006).
Testimony from current employees tend to be particularly reliable because it goes against their pecuniary interests
when testifying against their employer. Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill,
131 NLRB 1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Division,
197 NLRB 489, 491 (1972). Where a witness was not questioned about potentially damaging statements attributed
to him or her by an opposing witness, it is appropriate to draw an adverse inference and find the witness would
not have disputed such testimony. LSF Transportation, Inc., 330 NLRB 1054, 1063 n. 11 (2000); Asarco, Inc., 316
NLRB 636, 640 n. 15 (1995), modified on other grounds 86 F.3d 1401 (5th Cir. 1996).
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3
and Mexico. He also is responsible for real property and insurance liability. He sits on safety
committees and develops training programs. He also is the contact person for labor relations.
Hart has labor relations responsibilities at Respondent’s Tulsa facility, which is the only unionized
facility of the 8 for which he has responsibilities. (Tr. 405-407.) One HR specialist reports to Hart.
(Tr. 408-409.) Only Hart has the authority to approve or authorize discipline. (Tr. 409, 426.)5
Production Manager Allan Roberts3 supervises Tim Jones, who supervised alleged
discriminatee Michael Stroup. Roberts reports to Operations Manager Dennis Amend.
The engineering manager currently is Danny Hamra. He was not acting manager or 10
manager during the events in March 2019. His degree is in mechanical engineering. He worked
as a design engineer, then senior design engineer and then assistant engineering manager. (Tr.
294, 376.)
Respondent maintains a Quality Policy, which is not related to any disciplinary policy. The 15
current manager of the Quality Control department is Lori Sook.4 Sook oversees the work of 2
quality engineers and 3 quality inspectors in her department. The work involves inspecting
products created in the manufacturing process and in final inspection before the products are
shipping to the customers. She also ensures that quality systems certifications are maintained.
(Tr. 270-271, 368.) Sook reports to the vice-president of quality, Dr. Joseph Izzo. 20
III. LOCAL 4992’S ACTIVITIES AND STROUP’S ROLE
Respondent and Local 4992 had a collective-bargaining agreement, which was effective
from August 7, 2014 through August 6, 2017. (GC Exh. 2.)25
Chad Vincent was the Union’s staff representative to Local 4992. Vincent was responsible
for a number of bargaining units, including Local 4992, from June 2014 through June 2019.
Vincent stated relationship with Respondent declined because Respondent was less willing to
work with the Union and because Respondent hired a new production manager. 30
Local 4992 President Michael Stroup was a grade 9 fabricator until his termination on April
9, 2019. In his role as president, Stroup was responsible for the day-to-day operations of the
local, including grievance writing and meetings and sending emails to Respondent. He also sat
in disciplinary hearings and made information requests. He kept the membership up to date on 35
policies from Respondent and information from the Union and Local 4992. He interacted with
supervisor’s daily. He interacted with Roberts at least once a month and at various time with Dr.
Hart. When he met with Hart, Hart usually took notes, but other managers did not always take
notes. (Tr. 128-129; GC Exh. 22.) Stroup assisted Vincent in handling relationship with
Respondent and communicated with Vincent about what needed to be done. (Tr. 34.) 40
Matt McAfee, another employee in the same classification as Stroup, also serves on the
negotiating committee. McAfee was a past president but served for only 6 months many years
before the events here.

3 Roberts has been with Respondent for 50 years, of which 39 years have been as production manager. (Tr. 397.)
4 Sook worked for Respondent for 5 years. Her previous employment included jobs quality control and quality
engineer, although she does not have an engineering degree. (Tr. 374.)
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When the collective-bargaining agreement expired in 2017, Vincent, Stroup and two
additional employees served on the bargaining committee. The collective-bargaining agreement
was extended twice, but since November 30, 2017 the employees have worked under the terms
of the expired contract. (Tr. 35.) In response to the contract expiration in fall 2017, the union
began encouraging organizing t-shift days for union shirts. (Tr. 69.) 5
IV. IN 2018, UNION ACTIVITIES LEAD TO RESPONDENT’S ANTI-UNION ACTIVITIES AND UNFAIR
LABOR PRACTICE CHARGES
Beginning in January 2018, Stroup coordinated activities with the bargaining unit 10
employees. These activities included: putting stickers on personal belongings; and in late
January to the beginning of February 2018, in Respondent’s front parking lot, parking cars to face
the street with “Fair Contract Now” posters. (Tr. 36, 69.) Similarly, a committee member’s wife
administered a Facebook page, with pictures of employees. (Tr. 78.)
15
After the employees parked their cars in the front lot with the signs in the last week of
January and beginning of February 2018, Stroup’s supervisor called Stroup into a meeting in
Manager Roberts’ office. Stroup faced Plant Manager Roberts, Dr. Hart, and Operations Manager
Amend. Stroup asked Hart what the problem was. Hart said Amend wanted to tell him
something. Amend then stated when “they” drove to work that morning, they noticed a bunch of 20
cars, more cars than usually parked out front and asked Stroup to tell the members to move their
cars to the back lot. (Tr. 138.)
Respondent then issued memos to employees, on February 1 and 2 respectively, to park
only in the back of the facility and would not allow employees to enter the facility through certain 25
doors. Both memos, written by Dr. Hart, threatened disciplinary action for failure to comply. (Tr.
69-70; GC Exhs. 18-19.)5 Respondent asked McAfee if the building access was limited due to
concerns originating in the safety committee, and he was unaware of it. (Tr. 109.)
Respondent contended that, in 2018, the Union started badgering it with unfair labor 30
practice charges. On February 13, 2018, the Union filed unfair labor charges against Respondent.
(GC Exh. 6.) Before 2018, the Union had filed only one unfair labor practice within approximately
50 years.
In February 2018, Respondent also changed its past practice on the number of persons 35
who were allowed to take vacation at any given time. (Tr. 37, 74-75.) Before February 2018, 3
labor grade 9 fabricators were permitted to take off any given day or week, which was reduced to
permit only 1 grade 9 taking vacation each week. (Tr. 75.-76) The change meant that, even if
only one person to take off any given day, no other person could take off any other day of the
week, much less the entire week for vacation. Persons with seniority could not take all their 40
available vacation.6 (Tr. 76.) During this time, Stroup made contacts weekly with his direct
supervisor and monthly with higher level manager about the vacation scheduling problems. (Tr.
148.) On July 20, 2018, the Union filed another unfair labor practice charge that included

5 Respondent also cut the time in which employees could access the shift, from one hour before shift to 10
minutes. Employees used the early time to gather and discuss personal, work and union issues. (Tr. 73-74.)
6 Employees could be paid for the remaining vacation.
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allegations about Respondent violating Section 8(a)(3) by changing its vacation scheduling
practices in retaliation for union activities. (GC Exh. 6.)
Stroup also noted that Respondent increased disciplinary actions against bargaining unit
employees during 2018. Vincent, during his time as staff representative for Local 4992, noted 5
that before 2018, he only had one step 3 disciplinary (non-attendance related) before 2018.
Vincent noted that not all disciplines were reaching step 3 level, but Stroup and Vincent frequently
were discussing employees who were written up. Stroup filed a number of grievances. (Tr. 38.)
On June 8, 2018 Stroup met with Dr. Hart about Respondent’s increased disciplinary 10
actions to bargaining unit employees. (Tr. 141; GC Exh. 17.) Stroup cited examples of discipline
and issues with Amend and Roberts. Stroup also asked whether Respondent was using the
recently installed close-circuit cameras for disciplinary purposes. (GC Exh. 17, p. 3.) Stroup
reported nothing about disciplinary action changed after the meeting.
15
Informational pickets began every day at lunch and after the shift, which was covered a
few times by the local news media. (Tr. 77.) During summer of 2018 Local 4992 also leased a
large billboard across the street from Respondent’s facility: “Missing fair contract” pointed an
arrow towards Respondent’s facility and directed readers to the group’s Facebook page for more
information. (Tr. 78.) The news media interviewed Stroup, McAfee and Vincent and Shelly 20
Brazille. (Tr. 79.) While the interviews took place, managers left through Respondent’s facility’s
front door. Some media members attempted to access the facility. (Tr. 79.) Stroup found that
during the picketing, managers distanced themselves from the employees in the bargaining unit.
(Tr. 201.)
25
Ian Slattery, Stroup’s supervisor at the time, asked Stroup a few times about how long the
picketing would continue and why it was taking place. Stroup explained it was a show of solidarity
during the labor dispute and that the employees were attempting to get a contract. (Tr. 202.)
In August 2018, the parties resumed contract negotiations. McAfee raised problems with 30
overtime and Manager Amend, then stated that perhaps Local 4992 should discuss a possible
strike vote at the upcoming union meeting. (Tr. 80.) McAfee noted that Production Manager
Roberts, red-faced, was staring angrily at him after he raised Amend as a problem. (Tr. 79-80.)
McAfee, who used the breakroom at least once or twice per day, left a clipboard, paper, 35
and colored markers in the breakroom for employees to use to make signs. The employee and
the sign would then be photographed. One sign said, “No contract, no peace” and another said,
“#firedennis” [sic, Dennis Amend]. (Tr. 81.-82.) The Union also posted bargaining updates in the
breakroom. On August 14, about a week after negotiations, McAfee found that the sign materials
and posting were missing from the breakroom. Later that day, Respondent issued discipline to 40
the 3 employees serving on the bargaining committee: Stroup, McAfee, and Miller. (Tr. 82, 143.)
McAfee’s supervisor escorted him, with Stroup as his union representative, though the plant to a
conference room to which employees do not have access. (Tr. 83-84.) On August 21, 2018, the
Union filed an additional unfair labor practice charges regarding the removal of items from the
breakroom and the disciplinary actions. (Tr. 84-85; GC Exh. 6, p. 5.)45
General Counsel issued complaint regarding a number of the allegations contained in the
three charges.
JD-81-19
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V. ULP HEARING IN OCTOBER 2018 AND SETTLEMENT DISAGREEMENTS
On September 17, 2018, General Counsel issued an Order Consolidating Cases,
Consolidated Complaint and Notice of Hearing on the above charges. The Consolidated
Complaint alleged Respondent violated Section 8(a)(1) by Production Manager Roberts removing 5
union literature and other union materials from the employee break room and that Dr. Hart told
employees he ordered the removal of union communications and other union materials from the
break room. The Consolidated Complaint further alleged Respondent violated Section 8(a)(3)
and(1) by implementing its new parking requirements and not allowing employees into the facility
until 10 minutes before shift. Other 8(a)(3) violations included closer monitoring of Stroup, McAfee 10
and Miller and the August 14 discipline of the same employees, all members of the Union’s
negotiating team. The Complaint also alleged the changes in parking rules, access and vacation
as unilateral changes.7 (GC Exh. 7.) Respondent’s answer denied all wrongdoing.
The parties prepared for hearing. General Counsel issued Stroup a subpoena, which 15
Stroup gave to Roberts. (Tr. 143.) In October 2018, the parties convened before an NLRB
administrative law judge, who apparently required the parties and General Counsel to settlement.
(Tr. 41.) Stroup appeared at hearing but did not testify. He worked with the Union team towards
settlement. Present for Respondent at the hearing were Dr. Hart, Dennis Amend, Jason Evans,
Lori Sook and Tim Jones, who saw Stroup at the hearing. (Tr. 197.)820
The parties entered into an informal Board settlement that provided: Respondent would
not remove union information and materials from the break room or tell employees that
Respondent ordered the removal of Union information and materials from the break room, and
rescind such policies; Respondent would not monitor work and adherence nor discipline 25
employees because of the union membership or support; Respondent would not implement
restricted parking area and restricted access policies because of employees’ union membership
or support and rescind such policies; Respondent would not unilaterally change the number of
employees allowed to take vacation at one time without bargaining with the Union; and,
Respondent was required to remove from their files the warnings issued to Stroup and two other 30
employees on August 14, 2018.9 Issues included that the Union agreed to limit employee parking
to six front parking spaces. (Tr. 41.) The settlement included a non-admissions clause for
Respondent. (GC Exh. 9.)
Throughout 2018, Local 4992 filed 23 grievances, but none between late November 2018 35
and March 2019.
VI. LOCAL 4992 PRESIDENT STROUP REMAINS INVOLVED IN POST-SETTLEMENT ACTIVITIES
Vincent instructed Stroup to monitor the settlement for compliance. Despite the language 40
of the settlement agreement, Respondent apparently had difficulties complying with several
aspects of the settlement, or as Vincent stated, “The settlement agreement that we believed we
entered into that day at hearing was not being followed by the company the way that we

7 General Counsel alleged two additional unilateral changes about a new documentation requirement in the
shipping department and a new stock room procedure. (GC Exh. 7.)
8 None of Respondent’s witnesses denied seeing Stroup at the hearing.
9 The settlement addressed the additional alleged Section 8(a)(5) unilateral changes. (GC Exh. 9.)
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understood and the way that it was read.” (Tr. 42.) Respondent changed the access codes for
the identification badges to enter the doors as before, but the inside of the doors at issue remained
labeled with “exit only” signs. Stroup talked to Dr. Hart about that problem.
The Union believed the biggest stumbling block post-settlement was the vacation issue. 5
In the settlement addendum Respondent agreed to specific language on the vacation policies:
Respondent agrees to return to its prior practice of allowing three Labor Grade 9
Fabricators to simultaneously utilize vacation time on any given day and of
allowing three Labor Grade 9 Fabricators to “lock in” vacation for any given work 10
week during the February “lock in” period. Should backlogs and past-dues require
a reduction in the number of Labor Grade 9 Fabricators allowed to utilize vacation
time on any given day Respondent will provide Charging Party thirty-day notice
of the reduction, accompanied by documentation of the backlogs and past-dues.
Such reductions may not last more than sixty days without additional timely notice 15
and documentation of past-dues/backlogs being provided to the Charging Party.
Respondent agrees that even if such notice is provided, it will not cancel or in any
other way impact locked in vacation time.
Respondent agrees to work with Charging Party to identify any bargaining unit 20
employees who between February 2018 and the present requested vacation time,
were denied vacation due to one other Labor Grade 9 Fabricator being on
vacation, and who received attendance points or attendance-related discipline due
to the denial. Once such employees are identified, Respondent agrees to rescind
any attendance points and/or attendance discipline resulting from the denial. 25
(GC Exh. 9, p. 6.)
Stroup followed up with Respondent to obtain the documents, compare them and ensure
that they were accurate and then present the information to the bargaining unit. (Tr. 144.) The 30
Union attempted to enforce the vacation provision of the settlement, permitting more than one
person to take vacation. In mid-December 2018, Respondent and the Union met with the
Regional office by phone to attempt to resolve the matters. Part of the “resettlement” was that
Respondent would be required to provide information to Stroup and Vincent. (Tr. 63; GC Exh.
10.) Despite the call, the Union continued to have difficulty enforcing the settlement language on 35
vacation. (Tr. 85-86.)10
Respondent provided some of the requested information requested. (Tr. 45.) The
vacation issue was critical in December and early January because in February employees bid
on vacations. When employees bid on their vacations, the ones with the most seniority and most 40
vacation time would attempt to “lock in” their vacation times. (Tr. 43.) Despite Respondent’s
agreement in the settlement, Respondent failed to change the policy back. Stroup was in touch
with many of the employees about the provision. He had a number of contacts with Respondent
about the issue, stepping up his contact in January and February 2019 to weekly because of the

10 Stroup did not know when he filed his last grievance because he did not have his records. (Tr. 191-192.)
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upcoming “lock in” period. (Tr. 88, 149.)11 Respondent would hear from Stroup about information
on the vacation restrictions, schedule attainments and “past dues.” In February 2019, he
specifically discussed schedule attainment with Roberts and attempted to make headway on the
vacation issue. (Tr. 205.)
5
On March 4, 2019, Stroup emailed Dr. Hart, Managers Amend and Roberts, and
Respondent’s counsel about the vacation issues:
I was wondering, has there been any conversation as to what a threshold would
be to allow more than one person off or are we going to continue down this path 10
with zero solutions & hope it solves itself??
Why is overtime not being offered past 5:00 p.m.?? Why aren’t the last & first
Saturdays of the month being offered?
15
There are some things that could be done to move the needle where vacations &
limitations are concerned.
(GC Exh. 24a.)
20
On March 29, 2019, Stroup emailed the same managers and Respondent’s counsel with
a reminder that Hart was supposed to take care of the matter in January and April was almost
upon them. (GC Exh. 23.) On April 1, 2019, at 11:40 a.m., Stroup again emailed Respondent’s
managers and counsel with the same questions as in the March 4 email but added, “Kicking the
can down the road is lazy management & does not address anything.” (GC Exh. 24b.)25
Per Roberts’ notes dated and timed as April 1 2:40 p.m., Dr. Hart, with Roberts present,
suspended Stroup pending investigation for a production error he made on March 14, 2019 (about
2 ½ weeks before his notification). (Tr. 150.) Respondent terminated Stroup on April 9, 2019.
30
VII. RESPONDENT SUSPENDS, THEN TERMINATES STROUP
Stroup, an employee known to all the managers as the Local 4992 president, admittedly
made a production error. Respondent suspended and then terminated Stroup respectively on
April 1, 2019 and April 9, 2019. 1235
A. Stroup, the Work in CEP, and Internal Review Reports
All managers and supervisors knew Stroup was president of Local 4992. Stroup worked
in the customer engineered product section (CEP) as a labor fabricator grade 9 since about 40
December 2018 or January 2019. He briefly worked in CEP when he was initially hired in June
2014. Respondent provided no formal training and the only training he received was on the job

11 The Union continues to have difficulties enforcing the settlement on vacation after Stroup’s termination. The
Union filed a grievance, signed by 16 of the 30 bargaining-unit employees, which Respondent received on June 26,
2019. (Tr. 116-117; GC Exh. 21.) None of these employees received discipline. (Tr. 118.)
12 All dates in this section, unless otherwise stated, occurred in 2019.
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9
from the other operator in the area. (Tr. 152, 212, 362.) In the five-year period before Stroup
returned to CEP, the number of staff working in CEP decreased from 4 to 5 employees to 1 to 2.
(Tr. 209.) Stroup was the second person, but the production requirements, including time to
complete tasks, had not changed in the last 5 years. (Tr. 151, 209.) Before the incident leading
to Stroup’s suspension and termination, he only incurred about 10 IRRs, for which he received no 5
discipline. (Tr. 165-166.)
Matthew Kilgore, who worked in CEP for 3 ½ years, testified that the different customers
required different operations, causing need for time to become proficient. (Tr. 208.) Tasks in
CEP varied from product to product. Kilgore stated CEP always ran a backlog due to changes 10
Respondent made in how certain products were prioritized. Respondent added additional duties,
such as cleaning in the oxygen clean room, that were previously handled by Quality Control staff.
If the oxygen clean room must be serviced, the supervisor interrupts the CEP operator to do that
task, even if the CEP operator is in middle of an order. (Tr. 210-211, 212.)
15
Kilgore and Stroup both testified that they had frequent interruptions during the workday.
Kilgore testified, in more detail, that the interruptions sometimes depended on the day of the week
but could be as frequent as a couple of times per hour. (Tr. 213.) Interruption arose from updates
throughout the day from one’s supervisor about varying workplace issues. (Tr. 97.) Based upon
these interruptions, McAfee stated it was possible for an employee to miss a production step. (Tr. 20
97.)13
For parts made in CEP, the fabricator receives a lot card and a drawing for the assembly,
and sometimes a “traveler” showing the steps for assembly. (Tr. 381-383.) Each part in CEP
has at least 4 to 6 steps to completion, and for Stroup usually 8 to 12 steps at the time of his 25
termination. (Tr. 152-153.) Most of the products that Stroup constructed took 2 ½ to 3 days to
complete. Stroup then followed standard procedures by putting the completed order on a shelf
at Quality Control (QC) and notified QC that the order was ready for testing and certification. (Tr.
153-154.) Kilgore testified that it was not unusual to have CEP errors. (Tr. 213.)
30
When errors are detected, about 25 to 50% are reported on Internal Review Reports
(IRRs). (Tr. 90-91, 251.)14 IRRs are formal forms Respondent uses to identify and correct
production errors. Respondent has no consistent system for determining when IRRs are needed
and only determines when to use the IRRs on a case-by-case basis. (Tr. 90-91.) Quality Control
cannot initiate IRRs for non-conforming parts without Supervisor Sook’s permission. (Tr. 248, 300, 35
373.)
Engineering reviews IRRs. Hamra estimates he sees 10 errors from CEP per month that
are documented on IRRs and more if including small mistakes not covered by IRRs. (Tr. 300.)
Amend testified that he does not “systematically” review IRRs. (Tr. 344.)40

13 LeGrand did not corroborate the others on the frequency of interruptions. (Tr. 226.)
14 Based upon his experience with grievance and employee representation, McAfee testified the most frequent
disciplinary causes were shipping-related, such as packaging errors. (Tr. 91-92.) McAfee estimated, based upon his
experience and knowledge of other employees, that Respondent only compiles IRRs in less than 25% of the
production errors, which rarely lead to discipline. (Tr. 91.)
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Each form identifies the types of parts and job numbers as well as engineering’s review
and disposition. The disposition could be reworking the parts or turning the parts into scrap.
When products should be reworked, the fabricator usually receives the product on the same day
in order to get the product to the customer as soon as possible. (Tr. 252.)
5
B. Respondent Suspend Stroup for a Production Error
Stroup was out of the facility when, on March 18, the first CEP operator notified him that
he made an error on assembling pieces. Stroup returned to work on March 20, 5 working days
after he assembled the parts. (Tr. 154-155.) The error was leaving out a disks in 77 parts, which 10
was the number of completed parts in a single box. (Tr. 389.)15 Stroup could not recall how he
made the error but opined he could have had a work distraction. (Tr. 180.) He apparently was
not advised of any other problems. For this particular customer, Quality Control checks 100% of
the parts, so these parts would not have reached the customer. (Tr. 223, 266.)
15
On March 19, Tim Jones, Stroup’s production supervisor, discovered that 77 pieces
assembled by Stroup lacked rupture disks. When Stroup returned from his time off, he saw that
the box was located on the Quality Control shelf. He checked with Jones and requested to fix the
parts. Jones asked Quality Manager Sook whether the parts could be reworked. (Tr. 155, 357.)
Stroup received the parts for rework. (Tr. 309, 357; GC Exh. 27, p. 4.) He then opened each part 20
and rechecked that he left out the disk. Before the first break, Stroup was ready to insert the disks,
as he would for any similar rework order. (Tr. 155.) The entire process to rework the 77 parts,
with inserting the disks, would have taken approximately 2 hours. (Tr. 267.)16
However, when Stroup returned from first break to his station, the parts were not at his 25
station. Stroup asked Jones where the parts were. Jones told him that, at the 9:00 a.m. managers
meeting, Roberts told him to move the order to the supervisor’s office and keep the order
quarantined. (Tr. 156, 309, 358-359; GC Exh. 27, p. 4.) Sook apparently raised the leak rate,
which Amend stated was at 15%. (Tr. 344.)17 The quarantine meant Respondent was not likely
to allow Stroup to complete the repair on the 77 parts. (Tr. 157.) Between March 20 and April 1, 30
Stroup asked 2 or 3 more times to be allowed to complete the rework. (Tr. 158-159.)
Although Jones spoke with Stroup and Kilgore about the error, neither Jones nor Kilgore
were asked to give a statement. (Tr. 358-359.) On March 21, Sook sent to Hamra, Robert Amend
and Supervisors Slattery and Jones a copy of an IRR, stating she needed a disposition from 35
Engineering. She also identified that 510 parts were sampled instead of 500. The reasons stated
on the IRR for rejection were: 77 parts without disk inside; disk not seated correctly quantity to

15 If looking through the completed part with a flashlight, one can see with the naked eye whether the disk is
present. (Tr. 181.) However, Farris testified the appropriate way to determine whether this part is correctly made
is by placing it in a pitcher and then adding pressure. If no disk is present, bubbles escape from the part. (Tr. 264.)
16 Hamra testified the process would have required 6 hours. However, I did not ask him why 6 hours. (Tr. 301.)
17 Amend denied that Sook told him who the operator was or that he knew who the operator was. Considering
that the documentation has the operator number and that only 2 employees worked in CEP at the time, I find it
likely Amend knew that Stroup was the operator. Amend also testified that he found out about the error on
March 19, but nothing in Sook’s notes reflects communication with amend on March 19. (Tr.344-345; GC Exh. 27,
page 8.)
JD-81-19
11
be determined, at least 1; and a total 44 parts with illegible markings, 29 of those with ghosting
markings. (GC Exh. 15, pages 1-2.)
On March 22, Hamra’s IRR notes state that the 77 parts missing disks should be
disassembled and disks installed. For the disks not seated correctly, the disks should be removed 5
and replaced. For the 29 parts with ghosted markings, those should be scrapped, and all parts
with marking issues should be scrapped. (GC Exh. 15, page 3.) Thus, out of an order of 510
parts, Hamra recommended, and Sook agreed, only 29 were scrapped: The 77 parts missing the
disks could be reworked. (Tr. 284; GC Exh. 15, p. 3.)18 Hamra testified that some parts had to
be disassembled to confirm that which components were missing. Roberts admitted that the disk 10
errors should be caught in Quality Control.
The parts at issue remained on a chrome rack outside the inspection area. McAfee asked
quality control inspector Tony Cinelli whether the parts could be moved to make room for
additional parts. Cinelli told him the parts were related to a developing internal review report 15
(IRR), but could be moved. Cinelli also stated that “there had been an attempt to return them to
the shop floor for rework, but ultimately Lori Sook, the QC manager, had requested that another
inspector write an IRR on it.” Neither Sook nor any other manager took a written statement from
Cinelli. (Tr. 372.) Despite Cinelli’s representation, the parts remained on the rack. (Tr. 89-90.)
20
On Friday afternoon, March 29, Dr. Hart began the “formal investigation” of Stroup. (Tr.
20, 275.)19 The face-to-face meeting included Amend, Roberts and Sook. Hart testified that he
normally does not review production errors and associated discipline based upon internal review
reports. (Tr. 24.) However, to the contrary, Amend testified that neither he nor Roberts can
discipline with approval form the human resources department. (Tr. 332.)20 Dr. Hart, after starting 25
the meeting, called Engineer Hamra into the meeting. (Tr. 315.) Amend stated once Hamra was
in the meeting, the managers did not discuss Hamra’s determination that the parts could be
reworked: Yet Amend testified that they heard from Hamra a “technical perspective with the lot
and if he knew how it occurred and what happened there.” (Tr. 334-335.) According to Amend,
the product did not meet the customer expectation as per the quality policy. (Tr. 352.) Nor did 30
the managers discussing revising the IRR. (Tr. 422.) The managers determined they needed a
more formal statement from Stroup. (Tr. 351.) Hart could not recall anyone taking notes. (Tr.
422.)
When Respondent discussed the problems with additional parts with Stroup beyond the 35
disks, it did not show the parts to Stroup and he could not verify the errors. (Tr. 174.)

18 Roberts’ notes indicate the decision to quarantine was made on March 21, with the investigation beginning on
March 20. These notes are in conflict with the IRR signed by Sook and Hamra on March 22 that allowed rework.
19 Amend testified that the meeting was delayed due to personal availability, with different managers and Hamra
out of town at different times and “typically we like to do our business face-to-face.” (Tr. 338-339.) Hart was in
Ireland at corporate headquarters when the matter arose. However, testimony throughout the hearing showed
that the managers emailed each other later in the investigation and, when Respondent allegedly determined to
terminate Stroup, the determination was made by teleconference.
20 On day 2 of the hearing, Hart testified about his role in discipline on direct examination for Respondent in
agreement with Amend and Roberts. On day 1, he gave the answer about not usually being involved with
production errors. He gave no explanation for the change. The only reasonable explanation is that Hart does not
see most production errors.
JD-81-19
12
On Monday April 1, Respondent suspended Stroup.21 Stroup and his union
representative, quality inspector Billy Farris, attended a meeting with Dr. Hart, Roberts and
supervisor Ian Slattery. (Tr. 159.) Stroup gave his statement, then Farris argued about the IRRs.
Farris had reviewed the IRR log and found 5 similar issues on the IRRs. Farris brought to the
meeting the 5 IRRs and pointed out none of the 5 received discipline. (Tr. 254-255.) Dr. Hart 5
said they were not present to discuss other cases. Stroup told him not to worry about it. (Tr.
160.) Stroup testified that when he was interviewed for the investigation, the tone of the interview
was more accusatory than other investigatory meetings he attended for other employees. (Tr.
189-190.) Jones, Stroup’s supervisor, had not ever seen an employee suspended for an error
during his 1-½ years with Respondent. (Tr. 360-361.) 10
C. After It Suspends Stroup, Respondent Continues Its Investigation and Edits Reports
Roberts’ notes, which were written by Dr. Hart after Roberts provided a summary, convey
that Roberts interviewed Tim Jones on April 3 at 8:34 a.m. (Tr. 313.) Although Roberts cites that 15
122 parts failed the quality testing in the 500-piece order, Roberts apparently only discussed the
77 parts that missed disks. Jones told him that when he asked Sook whether the parts could be
returned to production, she affirmatively agreed. Regarding the meetings leading up to Stroup’s
termination, Roberts could not recall how many meetings he attended, nor did he see any notes
from meetings others attended, plus he had phone calls without notes. (Tr. 314.)20
Sook submitted a report, dated April 3. (GC Exh. 27, pages 8-9.) However, I do not credit
her entire report as it omits the initial assessment from Hamra, before April 5, determined that the
parts should be repaired instead of scrapped. She admittedly discussed an alleged part failure
repeatedly with Amend, but eventually stated this issue would need to be discussed “more 25
thoroughly with Engineering.” She also omits that she at first agreed to permit the parts to be
corrected and that only after the management meeting was she instructed to quarantine the 77
parts. Sook never recommended disciplinary action for any previous CEP errors, except related
to one alleged discriminatee in the earlier unfair labor practice case. (Tr. 279-280.)
30
On April 5, Danny Hamra, Respondent’s chief engineer, reported, by email to Hart, his
investigation into the errors. Hamra identified that each box would have 77 items in it, and the
error was likely to have taken place for a box being out of order or somehow the step of putting
in part was skipped. Hamra included in his summary that Stroup told him it was likely that he was
pulled away from this project and he re-started at an incorrect point. Other parts were rebuilt with 35
replacement disks and Hamra opined that those parts should be “defect free.” (Id.) Hamra found
Stroup had no malicious intent. (GC Exh. 29, pages. 4-5.)
Hamra submitted to Dr. Hart his statement about the investigation, including a statement
that the parts were reworkable and that the part errors were the result of a mistake. (Tr. 297.) 40
Hart, responding to Hamra, wrote that Hamra’s report did not “meet the needs of the Formal
Investigation that the Company is currently conducting.” In addition to making some format
changes, Hart instructed Hamra:
. . . .

21 Some of Respondent’s witnesses testified Stroup was not suspended on March 29 because it was a Friday, and
they waited until Monday. Monday would have been April 1. Other testimony in hearing indicates that he was
suspended on April 2, the day after Stroup’s email.
JD-81-19
13
4. The report is to contain discovery and engineering analysis of what failures
occurred.
5. The report is not to contain opinions or conclusions by you. That will be
the decision made by the management Team and legal at the conclusion of the
Investigation prior to meeting with the LG9 and Union representation. 5
6. Understand that your document will become a “discoverable” document in
a court of law.
. . . .
(GC Exh. 29, p. 3.)10
Before this time, no one had ever requested Hamra provide a formal statement about
any determination he made during his employment. (Tr. 299.)
D. Respondent Terminates Stroup15
By a meeting on April 8, Hart, Amend and Roberts had a teleconference in which it
determined to terminate Stroup. (Tr. 328-329, 341-342.) None of the managers specifically took
credit for determining that Stroup should be terminated. Amend testified that at the time of the
suspension, the managers had not determined to terminate Stroup. He guessed that the 20
determination was made about April 8. He thought the “magnitude” of the error and “just the
circumstances around it” led to the termination determination. (Tr. 339.) Roberts testified that the
error was severe, but on cross-examination admitted that the product missing the rupture disk, if
tested appropriately in Quality Control, would not pass the inspection. (Tr. 401.)22 Hart implied
Amend and Roberts determined that termination was appropriate. (Tr. 424.) Again, apparently 25
Respondent kept no documentation about this decision. (Tr. 346.)
On April 8, Respondent notified Stroup to come to Respondent’s facility the following day
at 9:30 a.m. (Tr. 161.) On April 9, 2019, Dr. Hart and Manager Roberts met with Stroup and his
union representatives, McAfee and Farris. McAfee took notes of the meeting.30
Hart began the meeting by handing Stroup a termination letter and said the outcome of
the investigation led to Respondent’s reasons for discharge. When asked what the precedent
was for Stroup’s termination, Hart stated, “Gross negligence and substandard performance.” The
employees asked Hart about other mistakes Stroup made and presented other IRRs and issues, 35
including an employee (CSS) who made frequent mistakes. Stroup presented a verbal warning
to Greg Putman, dated August 3, 2018, for using in the wrong disk material in making a part. (Tr.
161; GC Exh. 26, p.1.) Farris also stated there were a number of errors from a sister company,
and nothing was done with that information; he also raised that union employees were treated
different than those at the non-union plant. (Tr. 256.) 40
Hart said he was only going to talk about “this case.” Stroup pointed out that the error
made by Putnam should be considered due to the serious nature and because the discipline
should match the error. (Tr. 164.) Stroup raised that the precedent was his union activities. Hart

22 Roberts’s answer became circuitous on cross-examination when asked about what made this a severe error in
terms of the variables and returned to his statement that the disks were missing. (Tr. 402.) I therefore do not
credit his assessment.
JD-81-19
14
stated, “That is not the intention of the company. We handle this on a case by case basis.” Farris
argued that the union members were evaluated harshly while others were not disciplined at all.
Stroup added that Respondent was not consistent in how these matters were handled. Local 4992
representatives asked whether others in Stroup’s area were interviewed; Hart stated that the
company did not see the need” as only Stroup’s employee number was on the lot card. (Tr. 95.)23 5
Farris stated that Stroup’s mistake was simple, a box was missed and “there is no way one would
purposely attempt such a thing.” Hart denied that Stroup acted on purpose. McAfee asked why
Stroup was not tested for drugs or alcohol and Hart stated neither were suspected; the occurred
was presumed “an accident.” (Tr. 256; GC Exh. 20.) The discussion became heated and Stroup
said to “let it go because they weren’t listening.” (Tr. 257.) During the meeting, Respondent’s 10
representatives did not mention any policies violated.
The termination letter discussed that Stroup presented 500 pieces for inspector and 122
disk assemblies were rejected. Hart’s letter noted that 77 of the parts were assembled without
disks. Hart further stated:15
Based on these very negative results, the decision was made to investigate
the sub-standard production of the [lot number]. As part of this investigation,
statements were taken from you, Tim Jones (Production Supervisor), Lori Sook
(QA Manager) and Danny Hamra (CEP Engineering Manager.) . . . . 20
BS&B customers rely on our assurances, our reputation and our ability to
provide them with products that are not only products of the highest quality but
given the safety sensitive nature of our products, products that are 100% functional
and manufactured to the customer’s exact specifications., Any failure in the 25
fabrication/assembly process is a problem but a failure to the magnitude in this
case (i.e., a 25% failure rate) is unacceptable. BS&B’s primary products are
rupture disks and components containing rupture disks; in this case, incredibility,
you made numerous components that were missing completely the Company’s
primary product: rupture disks . . . . 30
(GC Exh. 16.)
Stroup filed with the Oklahoma Employment Security Commission for unemployment
(OESC). Respondent submitted to OESC Stroup’s statement, as allegedly given to Roberts but 35
written by Hart, and a number of additional documents, all of which Respondent relied upon for
terminating Stroup. (Tr. 170; GC Exh. 27.) Until Stroup requested these documents from OESC,
he had not seen any of them, including the statement he made allegedly taken by Roberts but
written by Hart. (Tr. 171, 322-323.) Noticeably absent were any statements from Kilgore and
Farris. 40

23 Stroup testified three other employees who were not interviewed but would have had additional relevant
information: Matthew Kilgore, his coworker in the CEP department, who worked on a similar order at the same
time and would be a subject matter expect; Tony Cinelli, in quality control, who tested the order and found the
error; and Billy Farris, also in quality control, as he was present during testing of the parts. (Tr. 162, 322-323.)
Kilgore also testified that, although questioned about the incident, he was never asked to give a formal statement.
(Tr. 216.)
JD-81-19
15
E. Post-Termination, Respondent Changes the IRR
On April 12, after Stroup’s termination, Sook and Hamra completed the IRR, which now
stated all 77 pieces without disks were to be scrapped. In addition, 1 piece would be scrapped
for an incorrectly installed disk. An additional 44 parts also would be scrapped for various reasons, 5
or a total of 122 parts should be scrapped. (Tr. 285; GC Exh. 27, page 5.) Nothing is mentioned
that Hamra and Sook initially determined the 77 pieces could be reworked, nor that the rework
was started and stopped.
In attempting to explain why the IRR was changed, Hamra weakly explained that10
management called him into an ongoing meeting at the end of March. He, along with Sook,
Amend and Roberts verbally agreed to change the previous IRR disposition as a “group decision.”
(Tr. 286.) He did not document the IRR changes in the meeting and could not recall whether any
other managers made notes. None of the other managers who were involved in the group
decision had any engineering experience. Hamra testified regarding his initial assessment, “I 15
would not say that I was incorrect.” (Tr. 290.) Hamra also testified that he was not involved with
any disciplinary determinations other than his direct reports. (Tr. 291-292.) In his engineering
role (before he became a manager), no one in management outside of the engineering
department ever overrode his dispositions. (Tr. 295.) The determination, Hamra claimed, was
based upon customer needs and not engineering determination, as the products were still 20
reworkable at the time he rewrote the IRR. (Tr. 296.)24 Hamra documented nothing about the
change in the IRR disposition until April 12, which Sook also signed. (Tr. 286-288; GC Exh. 27,
page 5.)25
F. Respondent Keeps the Parts for Union or ULP Issues25
Despite this claimed direction to scrap the parts, including the 77 pieces missing the disks,
the 77 were not discarded and remained on the rack in the Respondent’s facility. They were
never reworked, despite Hamra’s continued belief that they could easily be repaired. Roberts
testified that the due date for the product presented no problem because Respondent needed to 30
send other parts to the same customer. (Tr. 321.)
Roberts testified the parts were retained for any potential follow-up investigation. When
asked why Respondent might need a follow-up investigation, Roberts stated frankly and without
any hesitation: “Well, if discipline was going to be levied or given to Mr. Stroup, generally the 35
union would push back, file a grievance or file an unfair labor practice.” (Tr. 317.)
G. Disparate Treatment Evidence
Both General Counsel and Respondent presented disparate treatment evidence.40

24 Hamra also testified that any repair would have put shipping to the customer only 1 day. (Tr. 301.)
25 Hamra testified that he couldn’t say for sure whether he amended any IRR weeks after the original disposition
but testified he has revised IRRs. (Tr. 301.) Respondent provided no evidence to demonstrate that Hamra ever
changed an IRR weeks after an initial disposition, so I discredit this testimony.
JD-81-19
16
1. General Counsel’s evidence
Production errors occur daily at the plant. (Tr. 166.) However, not all production errors
result in IRRs. Kilgore testified that supervisors notified employees about simple production
errors. (Tr. 217.) The IRR is a more formal procedure. However, unlike the 77 parts
Respondent retained in Stroup’s case, Respondent otherwise reworks or corrects the problem 5
to the specifications to get the product to the customer. (Tr. 217.) Kilgore testified that, when
determining whether to rework a production, the percentage would be 30%. (Tr. 221.)
Stroup also testified that in his role as union president and in representing other
employees, he was unaware of anyone else suspended for production errors. (Tr. 160.)
Except for one employee admitting to Dr. Hart that he intentionally damaged parts, Stroup never 10
saw a discipline greater than a written warning for production errors. (Tr. 166.) For his 5 years
of experience as staff representative with this bargaining unit, Vincent could not recall any other
suspensions or discharges for production errors. (Tr. 44.) LeGrand, who worked for
Respondent for 6 years, also could not recall anyone terminated for production quality errors.
(Tr. 228.) 15
McAfee testified that he made several production errors each year and never received
discipline for them. (Tr. 90.) McAfee has missed one part, which might cause a three- to four-
part order rejection, but the parts he makes are one piece. (Tr. 107.) He stated production
errors were common and had increased over the previous 4 years. (Tr. 96.) Based upon his
experiences representing employees for discipline, he stated that he had seen some verbal 20
disciplines for IRRs, and less than 10% of the time IRRs resulted in any discipline. (Tr. 91.)
Kilgore testified about two similar incident in which two different employees made similar
errors by incorrectly inserted disks into about 40 or more parts, which did not seat appropriately.
Quality Control located the error. In each instance, the entire order of approximately 500 parts
were reassembled and no one received discipline. (Tr. 214-215.) Kilgore stated that these 25
errors were worse than leaving out the disks, because the quality control testing may have
cleared a sufficient number that could have permitted the products to be sent to the customer.
(Tr. 218.) Jones testified that Genevieve LeGrand misaligned disks and an entire lot was
scrapped and rebuilt; LeGrand received no discipline. (Tr. 216, 226-228, 363.)
Farris testified that, as a quality inspector, he saw at least 3 production errors caught by 30
inspection and those were worse that Stroup’s error. None of those errors caused Respondent
to discharge the employee involved. (Tr. 253.)
Farris reviewed a 21-page table of IRRs from January 2018 through July 26, 2019. The
list of IRRs covered RDD and CEP, without including shipping errors. Farris testified that only
50% of errors were documents on IRRs, so half of the errors were documented. Farris also 35
testified that, since Stroup’s termination, he observed 2 or 3 errors more significant than
JD-81-19
17
Stroup’s. He twice observed that disks were inserted inappropriately, which caused the parts to
burst and require rework.26 No one was terminated. (Tr. 258.)
In the first incident, he witnessed an employee, frustrated by repeated return on parts,
throw the parts on the floor and “stomp on them.”27 Farris reported to Supervisor Sook about
the incident, which was corroborated by 6 additional employees. Sook investigated. (Tr. 259-5
260, 262-263.) Despite the stomping the employee finally reworked the parts in approximately 2
hours and an engineer signed off. (Tr. 267.) Respondent presented no evidence that this
person was disciplined.28
In the second instance, 500 parts did not withstand pressure testing in quality control.
Additionally, Quality Control caught two situations in which the parts were randomly tested and 10
found several with the disks improperly seated. The entire batch had to be tested because of
the initial random testing revealing the problem. The parts with the incorrectly installed disks
were reworked. (Tr. 261-262.)
As above, Amend testified that Stroup was suspended pending investigation because he
did not build a product that met the customer’s expectation. Excluding shipping, in his 5 years, 15
Amend thought “maybe one or two. Not that many” were suspended pending investigation for
quality.
Hart was aware of one employee, Greg Putnam, who received a verbal warning for
making 13 parts from incorrect material. (Tr. 24.) Hart admitted that this error was
“catastrophic” and Roberts said it had “severe consequences.” (Tr. 27, 312.)29 The employee 20
also installed the erroneously built parts into another part. (Tr. 26-27.) The employee received
a verbal warning for substandard performance and policy/procedure violation on August 3,
2018. (GC Exh. 26.) This employee was raised when Respondent terminated Stroup. (Tr.
163.) Hart did not want to look at other employees. Hart, Amend and Roberts determined the
appropriate level of discipline was a verbal warning for Putnam. (Tr. 312, 341-342.) 25
2. Respondent’s evidence
Respondent maintains that no one ever forgot to insert disks in a product. It also contends
that it terminated five employees for actions similar to Stroup’s. Dr. Hart admitted that 3 were
terminated for purposeful errors and 2 for failing drug tests. (Tr. 427-428.)
30
For Employee One, Respondent’s letter, dated October 21, 2013, identified the following
issues leading to termination of a quality inspector:

26 Farris also observed that a cleaning crew knocked 42 parts off a table. The parts landed on the floor and were
permanently damaged. Those parts were not reworkable and were destroyed, putting the order behind. (Tr. 257-
258.)
27 “Stomp,” when used as a verb, means to walk with a loud heavy step usually in anger; not to be confused with
the noun version as a jazz dance. See www.merriam-webster.com/dictionary/stomp.
28 Respondent did not ask Sook about this report, so I must conclude that it was accurate and Sook did not proceed
with any discipline after her investigation. See LSF Tranport, supra.
29 Roberts attempted to avoid the question; General Counsel pointed him to his affidavit. (Tr. 312.)
JD-81-19
18
You have manually lined through correct calibration noted by [the] Quality Manager
and substituted you calibration, which was incorrect. You substituted the old
incorrect calibration despite specific written and verbal instruction from [the] Quality
Manager to you and your team members regarding the importance of calibrating
the entire range of our gauges.5
On multiple occasions, you have signed off on receipts with incorrect or incomplete
entries.
On multiple occasions, with inspections backlogged, you have been observed 10
playing games on your mobile phone in your work area.
These ongoing failure are against a background of a “Last Chance Agreement”
that you signed in April of this year regarding your falsification of Company
documents and your misrepresentation regarding the inspector (or not) of 15
Company products.
Hart continued: “Recently your actions have damaged the Company’s reputation with a
significant customer and contributed to the Company’s need to re-work a part at a cost in excess
of $10,000.” (R. Exh. 2)20
Dr. Hart’s termination letter for Employee Two, dated April 23, 2014, stated that a customer
notified Respondent of a product failure, which resulted in the customer returning 12 parts to
Respondent. Some of the parts were already installed in the customer’s assemblies, which
required removal from the assemblies. Preliminary testing revealed that the parts, both installed 25
and uninstalled, failed leak testing. In the following month, the customer returner 224 parts that
had a failure rate of approximately 25%. Employee Two, a quality inspector, was terminated 13
days after the second batch of parts was returned. (R. Exh. 3.)
On June 26, 2014, by letter from Dr. Hart, Respondent terminated Employee Three. Hart’s 30
letter stated Employee Three intentionally produced bad products and attempted to sabotage the
quality assurance process. (Tr. 416-417; R. Exh. 4.)
On July 18, 2016, Respondent terminated Employees Four and Five after both failed drug
tests. Respondent terminated pursuant to provisions in the collective-bargaining agreement. (R. 35
Exhs. 5-6.) Employee Five as a labor grade 9 who served as a union official. (Tr. 419.)
VIII. ANALYSIS
The analysis here discusses witness credibility, applicable law for Section 8(a)(3) and (4)40
discharge cases, the parties’ respective positions, and makes determinations on those
allegations. It also addresses the additional issue of whether to continue a temporary
confidentiality order.
A. Credibility45
Dr. Hart initially was called as an adverse witness in General Counsel’s case and a direct
witness in Respondent’s case. He initially denied that he edited any of the management
JD-81-19
19
statements; he then was contradicted by documentary evidence. (Tr. 21; GC Exh. 29.) He later
denied that he said that he would consider an employee’s failure to make a part out of the correct
material a “catastrophic error,” then shifted when confronted with a prior sworn statement. (Tr.
24-25.) Hart attempted to avoid an admission that his June 8, 2018 meeting notes with Stroup
was about alleged increased employee discipline, which was contained on the first page of Hart’s 5
meeting notes. (Tr. 29; GC Exh. 17, p. 1.) Hart also tried to avoid answering that Respondent’s
evidence of disparate treatment failed to demonstrate anything other than purposeful conduct.
(Tr. 428.) Therefore, I do not credit much of Hart’s testimony.
Hamra first testified as an adverse witness in General Counsel’s case. He was business-10
like but hedged on certain questions, which General Counsel remedied by referring him to his
affidavit. When called a few hours later in Respondent’s case-in-chief, Hamra developed a high-
pitched giggle that was not present during previous testimony, which I suspect was due to
nervousness that developed between the periods of testimony.
15
Regarding the management meeting on March 29, Hamra had no recollection of telling
the managers that he already determined the 77 parts could be reworked. He tried to avoid
General Counsel’s questions about why, as the engineer, managers overrode his assessment
about the parts being reworked. (Tr. 289-290.) He admitted he never had been included in this
type of meeting before Stroup’s error. (Tr. 292.) Amend agreed that Hamra was not asked about 20
the parts in the March meeting. Although Hamra attempted to avoid a number of questions, I
partially credit his testimony regarding never having any manager outside the Engineering
Department override his determinations before these events and that the 77 parts without disks
were curable. I discredit his later explanation of why the IRR was changed, particularly since he
testified inconsistently when the determination was made. 25
Respondent’s witnesses also were externally inconsistent about why the 77 parts without
disks were not reworked. Roberts, the most definite and convincing, stated the reason was due
to either potential union or unfair labor practice action. Amend waffled on whether he saw the
original IRR recommending reworking the 77 parts, saying “Could be, I don’t know.” (Tr. 338.) 30
When asked whether the parts were reworkable, Amend testified that Stroup’s error was of a
great magnitude and they did not know what “we didn’t know” and that the parts possibly could
have been reworked but for the extensive investigation. (Tr. 337.) I discredit Sook’s initial denial
that she had any knowledge of whether the 77 parts were returned to Stroup for rework and said
that would have been up to his supervisor; however, given the status of her March 22 notes on 35
the IRR and later admission, she certainly gave her imprimatur to reworking parts. Sook was also
inconsistent with Stroup’s supervisor, who requested whether the parts could be reworked. (Tr.
275; GC Exh. 15, p. 4.)
As a result, I must find that the parts were reworkable for a number of reasons: Hamra 40
and Sook initially agreed that most of the parts were reworkable; Hamra, in his engineering
expertise, stated his initial assessment was not incorrect; Amend testified that the parts were
retained because “We don’t know what additional questions or investigative processes or question
that you may have. . . .”;30 and Roberts admitted that the parts were held due to potential
grievances or unfair labor practice charges. An additional reason arises with the changes to the 45
IRR on April 12.

30 See Tr. 354. Amend testified generally that other occasions occurred where Respondent retained parts.
JD-81-19
20
Respondent’s witnesses were externally inconsistent when it came to who determined to
change the IRR on April 12. When asked whether engineering changed its mind about the status
of the parts, Sook testified, with some hesitation, that the initial decision was just engineering and
quality, but:
5
[T]here was another decision based off of management to actually revise
that disposition. That’s the reason why there’s a later date, April 12th, with the
disposition being changed because management had another decision on how - -
we were not going to rework those parts after all for this customer.
10
. . .
The decision that was made later was not just engineering. It was
production, so management in production, engineering, and quality as well. The
whole team actually had a disposition at the end to change that.
15
(Tr. 277.) Amend denied that he or Roberts were involved with changing the IRR. (Tr. 334.)
However, Hamra testified that his initial determination was not incorrect.
Because of these inconsistencies I discredit Respondent’s witnesses saying that this error
was “very severe.” (See, e.g., Roberts, Tr. 402.) 20
Respondent’s witnesses also could not agree on when the “formal investigation” started.
Amend stated it began March 19; Roberts and Hart said 10 days later, when the managers met
face to face. Further, Respondent’s managers could not agree on who made the determination
to terminate Stroup in their April 8 teleconference. 25
Although Respondent’s witnesses maintained the investigation was “formal,” Respondent
kept no notes of the March 29 or April 8 meetings, with perhaps the exception of Sook’s entry of
the March 29 meeting. Sook’s notes, stating that she questioned whether “personnel” making
this error should continue to work there, also are inconsistent with Hart’s testimony stating that no 30
level of discipline was discussed on March 29. Based upon Sook’s documentation here and
Hart’s recommendations on April 5 to Hamra to amend his statement in preparation for possible
legal action, Respondent had not only discussed the discipline but also anticipated terminating
Stroup’s employment as early as March 29. (GC Exh. 27.)
35
Stroup never denied he made errors. (e.g., GC Exh. 27, p. 4.) He testified consistently
that he may have been interrupted while making the parts, despite Respondent’s efforts to
discredit his testimony. The possibility of interruption is also consistent with some of Hamra’s
assessment. He also admitted making the error on 510 parts, for which he received no discipline.
With one exception, he was not hostile during cross-examination and answered the questions to 40
the best of his knowledge. His testimony is credited in full.
Farris’s testimony had some slight differences, such as the percentage of IRRs written
and who attended the termination meeting. These minor differences might be expected and do
not affect the credibility of most of his testimony. 45
JD-81-19
21
B. Applicable Law: Wright Line analysis for Section 8(a)(3) and (4)
1. Section 8(a)(3) mixed motive case
Section 8(a)(3) prohibits employers from discriminating in regard to an employee's “tenure 5
of employment . . . to encourage or discourage membership in any labor organization.” An
employer violates Section 8(a)(3) by disciplining employees for antiunion motives. Equitable
Resources, 307 NLRB 730, 731 (1992). To establish a violation of Section 8(a)(3) and (1) in cases
where a discipline and discharge is alleged, General Counsel has the burden to prove that the
disciplinary action or discharge was motivated by employer antiunion animus.10
In determining whether adverse employment actions are attributable to unlawful
discrimination in mixed motive cases, the Board applies the analysis set forth in Wright Line, 251
NLRB 108 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
Wright Line framework requires proof that an employee's union or other protected activity was a 15
motivating factor in the employer's action against the employee. 251 NLRB at 1089. The elements
required to support such a showing are union or protected concerted activity, employer knowledge
of that activity, and union animus on the part of the employer. Fremont-Rideout Health Group,
357 NLRB 1899, 1902 (2011); Consolidated Bus Transit, 350 NLRB 1064, 1065 (2007), enfd. 577
F.3d 67 (2d Cir. 2009).20
The burden shift to the employer to demonstrate that the employee would have been
discharged regardless of protected activities. Miera v. NLRB, 982 F.2d 441, 446 (10th Cir. 1992).
An employer does not satisfy its burden merely by stating a legitimate reason for the action taken,
but instead must persuade by a preponderance of the credible evidence that it would have taken 25
the same action in the absence of the protected conduct. Manno Electric, Inc., 321 NLRB 278,
280 fn. 12 (1996); T & J Trucking Co., 316 NLRB 771 (1995).
2. Section 8(a)(4) mixed motive case
30
The Board recently reiterated the importance of Section 8(a)(4) and employee access to
Board processes:
Section 7 of the Act protects the right of employees to utilize the Board's
processes, including the right to file unfair labor practice charges. See, e.g., Bill 35
Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983). The Board has
no power to issue complaints sua sponte; Section 10(b) of the Act empowers the
Board to do so “[w]henever it is charged that any person has engaged in or is
engaging in any . . . unfair labor practice . . .” (emphasis added). Accordingly, the
Supreme Court has recognized that “[i]mplementation of the Act is dependent upon 40
the initiative of individual persons who must . . . invoke its sanctions through filing
an unfair labor practice charge.” Nash v. Florida Industrial Commission, 389 U.S.
235, 238 (1967). Congress intended employees to be completely free to file
charges with the Board, to participate in Board investigations, and to testify at
Board hearings. NLRB v. Scrivener, 405 U.S. 117, 121-122 (1972). This is shown 45
JD-81-19
22
by Congress's adoption of Section 8(a)(4) of the Act, which makes it an unfair labor
practice to discharge or otherwise discriminate against employees for filing
charges or giving testimony under the Act. Id. at 121-122; see also NLRB v.
Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 424 (1968) ( “The
policy of keeping people ‘completely free from coercion’ [] against making 5
complaints to the Board is . . . important in the functioning of the Act as an organic
whole.”) (quoting Nash v. Florida Industrial Commission, 389 U.S. at 238).
Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10, slip op. at 4-5 (2019).
10
The Supreme Court found that Section 8(a)(4) should be interpreted broadly due to
employee protection granted by the Act, its legislative history, remedial goals and subpoena
authority. NLRB v. Scrivener, 405 U.S. 117, 121-125 (1972). If employees are subpoenaed,
even if not called to testify, they are considered protected under Section 8(a)(4). Id. at 124-125;
Williamhouse of Calif., Inc., 317 NLRB 699, 715 (1995). In Quality Millwork Corp., 276 NLRB 15
591, 596 (1985), an employer violated Section 8(a)(4) when it terminated its employee 3 days
after the employer advised the employee it did not have to respond to a Board subpoena, and
then saw the employee at the Board’s office.
Similar to the analysis in examining a possible 8(a)(3) violation, the analysis in 8(a)(4) also 20
follows the Wright Line framework. General Counsel initially must establish that Respondent took
adverse action, at least in part, due to the alleged discriminatee’s participation in protected Board
activities, such as filing charges, participating in investigations, and providing testimony. General
Counsel must show that the employee engaged in such protected activities, the employer had
knowledge of such activities, and the activity was a motivating factor in Respondent’s adverse 25
action. Airgas USA, LLC v. NLRB, 916 F.3d 555, 561 (6th Cir. 2019), enfg. 366 NLRB No. 104
(2018). If the General Counsel makes this showing, the burden shifts to the Respondent, which
must show by a preponderance of evidence it would have taken the same action even without the
protected activity. Airgas USA, 916 F.3d at 561.
30
C. Parties’ Positions
1. General Counsel
General Counsel contends that Stroup, as Local 4992 president, had many contacts with35
Respondent’s managers about daily employee relations and contractual issues. He also was
active in the 2018 union activities. He was disciplined in 2018, along with two other bargaining
unit members. This and other events in 2018 demonstrate animus towards the union. These
events led to the Board issuing complaint against Respondent.
40
Stroup attended the October 2018 unfair labor practice hearing. He did not testify
because the judge ordered the parties to reach a settlement. He was part of the Union’s team
in negotiating the informal Board settlement. After the settlement he worked to enforce it with
contacts to Dr. Hart and others on the management team. He continued these efforts until he
JD-81-19
23
was suspended in April 2019. These efforts demonstrate that Stroup was involved in activity
protected by Section 8(a)(4).
Respondent had not terminated any employee who made production errors that were
similar or worse than Stroup’s error. Respondent’s examples of terminations were for 5
purposeful conduct. Respondent also did not demonstrate how failing to rework the parts or
Stroup’s error did not meet its quality standards. The evidence demonstrates pretext and
Respondent did not meet its burden of proof for either 8(a)(3) or (4).
2. Respondent’s position10
Respondent contends timing does not demonstrate any anti-union animus at the time of
Stroup’s discharge and union activity was low at the time of the discharge. (R.Br. 18-20.) It further
argues that the evidence is more of “flimsy speculation” and “Charging Party is attempting to
create a per se rule that union presidents cannot be terminated regardless of their job 15
performance.” (R.Br. 20-21.) Ultimately, Respondent contends that Stroup would have been
terminated regardless of union activities and animus because Stroup’s error was significantly
more severe than most others and it “consistently terminated the employment of employees who
commit workplace errors that are more severe than common production errors.” (R.Br. 22.)
Respondent’s brief does not address the 8(a)(4) allegation.20
D. Discussion
1. Union and Board activities and Respondent knowledge
25
All managers and Hamra admitted they knew Stroup was union president. However, it
denies that Stroup engaged in any activities close in time to the termination in 2019 because
grievance activity was lower than in previous months.
Grievance activity is not the only sort of union activities. Stroup communicated about the 30
open vacation issue, which also was at issue after the Board settlement. Stroup engaged in
Board activities, including attempting to enforce the Board settlement and none of the managers,
including Hart, denied receiving Stroup’s emails on the vacation issue, which was a contractual
issue as well as related to the Board settlement.
35
Stroup engaged in activities protected by Section 8(a)(4) of the Act and Respondent knew
of these activities. He was a named discriminatee in the prior Consolidated Complaint that
Respondent defended. Stroup was subpoenaed as a witness for that hearing and although not
called as a witness, Respondent knew that he was subpoenaed and saw him at the hearing
location. Scrivener, 405 U.S. at 124-125; Quality Millwork, supra. After the Consolidated 40
Complaint settled in an informal Board settlement, Stroup communicated with Respondent,
particularly Hart, about enforcement of the settlement. Because the Act protects its remedial
goals protects the remedial goals of the Act, Stroup’s discussions about enforcement of the
settlement are protected. Scrivener, supra.
45
JD-81-19
24
2. Animus
Proof of animus and discriminatory motivation is fact-based and may be based on direct
evidence or inferred from circumstantial evidence. SCA Tissue North America LLC, 371 F.3d 983,
988-989 (7th Cir. 2004), enfg. 338 NLRB 1130 (2003); Robert Orr/Sysco Food Services, 343 5
NLRB 1183, 1184 (2004); Purolator Armored, Inc. v. NLRB, 764 F.2d 1423, 1428-1429 (11th Cir.
1985). A showing of animus need not be specific towards an employee's union or protected
concerted activities. Colonial Parking, 363 NLRB No. 90, slip op. at 1, fn. 3 (2016).
Because direct evidence of unlawful motivation is seldom available, General Counsel may 10
rely upon circumstantial evidence to meet the burden. Circumstantial evidence is used frequently
to establish knowledge and animus because an employer is unlikely to acknowledge improper
motives in discipline and termination. NLRB v. Health Care Logistics, 784 F.2d 232, 236 (6th Cir.
1986), enfg. in part 273 NLRB 822 (1984). Also see Naomi Knitting Plant, 328 NLRB 1279, 1281
(1999). Factors that may support an inference of antiunion motivation include employer hostility 15
toward unionization, other unfair labor practices committed by the employer contemporaneous
with the adverse action, the timing of the adverse action in relation to union activity, the employer's
reliance on pretextual reasons to justify the adverse action, disparate treatment of employees
based on union affiliation, and an employer's deviation from past practice. Purolator, 764 F.2d at
1429; W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995), denying rev. 311 NLRB 1118 20
(1993).
a. Timing
Animus can be inferred from the relatively close timing between an employee's protected
concerted activity and his discipline. Corn Brothers, Inc., 262 NLRB 320, 325 (1982) (timing of 25
discharge within a week of union organizing meeting evidence of antiunion animus); Sears
Roebuck & Co., 337 NLRB 443, 451 (2002) (timing of discharge, several weeks after employer
learned of protected concerted activities, indicative of retaliatory motive); La Gloria Oil & Gas Co.,
337 NLRB 1120 (2002) (timing of discipline imposed 4 months after service on bargaining team
and ULP hearing appearance suspect).30
Respondent argues that Stroup did not have any protected union activities after summer
2018, so that timing is insufficient for an inference of animus. Respondent also contends that no
animus existed because Stroup made an error in January 2019, closer in time to the picketing
and other significant union activities. Respondent also argues that no grievances were filed in 35
late 2018 until Stroup was terminated.
Respondent ignores much of Stroup’s efforts on behalf of the Union and in support of the
Board settlement, as described in the above section. As these activities are both union activities
and in support of the Board settlement, the timing indicates that Stroup was heavily involved up 40
to the day of his suspension. This timing supports a finding of animus under Section 8(a)(3) and
(4). See generally The Sheraton Anchorage, 363 NLRB No. 6 (2015).
45
JD-81-19
25
b. Pretext
Pretext can take many forms. Here, I examine shifting reasons, the investigation
techniques, and disparate treatment.
5
(1) Shifting reasons
Shifting explanations for Respondent's disciplinary actions constitute strong evidence that
Respondent's asserted reasons are pretextual. See, e.g., Lucky Cab Co., 360 NLRB 271, 274
(2014); Kingman Regional Medical Center, 363 NLRB No. 145 (2016) (respondent's shifting 10
defenses implies grasping for reasons to justify unlawful conduct) (cite omitted); Scientific Ecology
Group, Inc., 317 NLRB 1259, 1259 (1995). Also see NLRB v. Aquatech, Inc., 926 F.2d 538, 547
(6th Cir. 1991), enfg. 297 NLRB 711 (1990) (inconsistencies in proffered reason and employer's
actions lead to inference of antiunion animus). Respondent's failure to claim “an asserted reason
for adverse action at the time the action is taken can indicate a discriminatory motive.” Royal 15
Development Co. v. NLRB, 703 F.2d 363, 372 (9th Cir. 1983).
One large shift was documentation in the IRR: On March 22 Sook and Hamra agreed that
the 77 parts without disks were fixable; on April 12, post-discharge, they changed the IRR to state
that 77 parts and others were not fixable at all. This shift flies in the face of Hamra’s testimony 20
that his initial assessment on the IRR was not incorrect. Hamra also found that Stroup’s actions
were not done purposefully and were “fixable,” yet Dr. Hart instructed him to remove this
assessment from his report on April 5.
Respondent claims leaving out the disks was unprecedented and such a severe error that 25
it instead “decided not to rework the parts so as to not further delay shipment of the order and to
preserve the parts for investigatory purposes.” (R. Br. 5.) Roberts however, testified that the
order was not due as other parts were necessary for the shipment. Additionally, Respondent’s
need to “preserve the parts for investigatory purposes” relate not whether the parts were
reworkable or needed to be scrapped but to Respondent’s defensive moves toward union or 30
Board activities. Respondent never showed what other investigation was necessary for the parts
either. I find these shifts significant and demonstrate animus towards Stroup’s union and Board
activities.
(2) Using different investigation techniques than normal and lack of a 35
meaningful investigation
Despite Respondent’s investigation, which used different methods than normal,
Respondent did not conduct a meaningful investigation. I first examine the methods of the
investigation, then the lack of a meaningful investigation.40
First, using different methods of investigation than usual supports a finding of pretext and
discriminatory intent. Allstate Power Vac, Inc., 357 NLRB 344, 347 (2011) (e.g., higher level of
corporate structure than usual). Hart admittedly never participated in investigation or discipline
for these types of errors before Stroup; he later changed his testimony that he had to approve 45
JD-81-19
26
disciplinary action. Here, he apparently coordinated the investigation, beginning on March 29,
and subsequently told Hamra how to document his findings. Hart’s role was beyond approving
discipline. Hamra had not been involved in such proceedings before the investigation on Stroup,
nor had any manager outside the Engineering department changed his findings.
5
Secondly, Respondent’s failure to conduct a meaningful investigation and give the alleged
discriminatee an opportunity to explain are “clear” indicators of discriminatory intent. New Orleans
Cold Storage & Warehouse Co., Ltd., 326 NLRB 1471,1477 (1998), enfd. 201 F.3d 592 (5th Cir.
2000). Also see: Green Apple Supermarket of Jamaica, Inc., 366 NLRB No. 124 (2018); Rainbow
Medical Transportation, LLC, 365 NLRB No. 80 (2017), citing Andronaco, 364 NLRB No. 142, slip 10
op. at 14 (2016) and cites therein. Also see Airgas USA, LLC, 916 F.3d at 563 (8(a)(4) violation).
A number of instances demonstrate that Respondent’s investigation was “unwilling[ ] to
get at the truth” and instead demonstrate an effort to “provide it with some cover in the event the
discharges were subsequently challenged.” Inter-Disciplinary Advantage, Inc., 349 NLRB 480, 15
500 (2007). First, the investigation failed to ask other employees about the error. Second and
more significantly, the managers failed to ask salient facts about the parts, particularly the 77
parts that could have been reworked. In the March 29 meeting, no one asked Hamra and Hamra
apparently did not offer that the parts could be reworked; even without Hamra present, that aspect
of investigation was ignored. Sook was in the meeting and already had approved reworking, but 20
did not raise that possibility either. When Hart reviewed Hamra’s statement on April 5, Hart
purposely ignored salient facts of Hamra’s investigation that exculpated Stroup, such as
reworkability of the parts and that Stroup did not make the error on purpose. Indeed, Hart’s
comments to Hamra show he intended to give “cover” to the investigation. Sook’s report of the
investigation also omits facts, such as her granting permission to the supervisor for Stroup to fix 25
the parts. (GC Exh. 27, pages 8-9.)
Respondent also refused to examine other similar cases when presented during the
suspension and termination meetings. In the suspension meeting, Farris brought 5 similar IRRs,
which Respondent ignored. Similarly, in the discharge meeting, Hart refused to hear anything 30
Stroup said about a case in which an employee received only a verbal warning for an error Hart
categorized as “catastrophic.” Stashing the parts in quarantine in case of union and/or unfair
labor practice proceedings and belatedly changing the IRR post-termination also demonstrate
Respondent sought “cover.” These factors demonstrate that Respondent intended to terminate
Stroup, regardless of what the investigation showed. These instances show, not only was 35
Respondent unwilling to reach the truth, but tried to mold the situation to cover its true motives.
Inter-Disciplinary Advantage, supra.
Not only did Hart purposefully ignore the chief engineer’s assessment of the parts,
Respondent also stashed the parts without the disks and did not correct it. As noted above, a 40
number of Respondent’s witnesses gave vague answers about why the parts were not fixed. The
true reason, as stated by Roberts, was because of possible grievances and unfair labor practice
proceedings and not any delays in meeting customer expectations. Respondent therefore failed
to conduct the investigation as usual and the investigation that it did undertake was designed to
avoid the truth---together, another strong indicator of animus.45
JD-81-19
27
(3) Disparate treatment and deviation from past practice
Pretext may be established when an employer does not discharge employees who
committed similar offenses. Charter Communications, Inc. v. NLRB, __ F.3d __, 2019 WL 466054
(6th Cir. September 25, 2019),31 enfg. 366 NLRB No. 46 (2018). The most striking evidence is 5
that Respondent’s examples of terminations were those terminated for purposeful conduct,
compared to Respondent acknowledging that Stroup did not purposefully make these errors.
Three of the discharges were for admittedly purposeful activity and two were failing drug and
alcohol tests. These discharges do not demonstrate that Respondent treated Stroup the same
as other terminations. East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at *14 (2018). 10
Respondent could not reasonably believe that Stroup’s actions, which were correctable in less
than a day, would be similar to the purposeful acts for which it discharged employees, or failed to
take any disciplinary action against an employee who deliberately “stomped” on parts he was
assigned to rework.
15
Hart’s letter describes Stroup’s error as a 25% failure rate. Amend, in the early review,
described the failure rate at 15%. Yet Putnam’s error was a 100% failure rate, requiring the entire
order to be reworked. In describing Putnam’s error, and Roberts described it as “serious” and Hart
as “catastrophic.” Yet, compared to Stroup, Putnam received only a verbal warning.
20
Similarly, anecdotal evidence provided by General Counsel’s witnesses show correctable
errors worse than Stroup’s, with the employee permitted to rework the parts. Not only does this
demonstrate disparate treatment, it also demonstrates a deviation from Respondent’s practices.
I find that, but for Stroup’s work on behalf of the Union, Local 4992 and the Board settlement,
Respondent would have permitted Stroup to correct his errors. 25
c. Other evidence of animus
The evidence of the 2018 union activities here is not used to prove a time-barred unfair
labor practice but instead provides information about the “true character” of events within the time 30
period now at issue. Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 416 (1960);
REM Transportation Services, LLC, d/b/a Ambrose Auto & Autotrans Katayenko, 361 NLRB 931
fn. 2 (2014) (evidence from settled case may be background evidence in determining motive
before or after settlement). This information is not the only basis for making this determination
and therefore is permissible. Id. at 417-418. I find that the activities described in the prior case 35
provide additional evidence of animus towards union activity. See generally Ambrose Auto, 361
NLRB at 936.32

31 The court cites: United Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767, 781 (9th Cir. 2017); Ozburn-Hessey Logistics,
LLC v. NLRB, 833 F.3d 210, 223 (D.C. Cir. 2016); and Bates Paving, 364 NLRB No. 46 (2016).
32 Even if I did not rely upon the evidence that led to the 2018 Board complaint, General Counsel still presents a
strong prima facie case.
JD-81-19
28
At hearing, Respondent contended that in 2018, the Union filed a number of unfair labor
practice charges for the purpose of harassment. However, other than the number of charges
filed, Respondent did not prove the Union or Local 4992 was engaged in harassment.
d. Conclusion on animus5
Timing, shifting reasons, pretext and other reasons strongly establish that Respondent’s
reasons for terminating Stroup are false and “justifies an inference that its real motive for a
discharge was unlawful.” L.S.F. Transportation, Inc. v. NLRB, 282 F.3d 972, 984 (7th Cir. 2002),
enfg. 330 NLRB 1054 (2000); Coil-A.C.C., Inc. v. NLRB, 712 F.2d 1074 (6th Cir. 1983), enfg. 262 10
NLRB 76 (1982). General Counsel establishes a prima facie case that Respondent terminated
Stroup in violation of Section 8(a)(3) and (4).

3. Burden shifts to Respondent
15
Respondent is required to show it would have taken the same action for legitimate reasons
even in the absence of the protected activity. Monroe Mfg., 323 NLRB 24, 27 (1997); T & J
Trucking Co., 316 NLRB 771, 771 (1995), enfd. mem. 86 F.3d 1146 (1st Cir. 1996). If a
respondent’s stated motives “are found to be false, the circumstances may warrant an inference
that the true motive is an unlawful one that the respondent desires to conceal.” Shattuck Denn 20
Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
“. . . [A] finding of pretext necessarily means that the reasons advanced by the employer
either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful
motive established by the General Counsel.” Limestone Apparel Corp., 255 NLRB 722, 722 25
(1981), enfd. 705 F.2d 799 (6th Cir. 1982). A number of factors demonstrate Respondent's
defenses are pretextual, and Respondent therefore failed to meet its responsive burden.
Much of the evidence of pretext is discussed above in animus and I rely upon those same
reasons here. Respondent argues that Stroup’s error, of failing to install the valve, was unique, 30
“[s]uch a glaring and obvious defect.” Respondent relies upon 3 comparators who purposely did
not build parts correctly. These include sabotage. In an uncontroverted example from General
Counsel, one employee purposefully “stomped on” parts that needed to be repaired, were
reported to management by other employees, and the employee apparently was not disciplined,
much less terminated. Two other Respondent comparators were terminations for positive drug 35
and alcohol tests, which are not specifically related to building parts. Respondent was not
consistent in its disciplinary actions, which lead to the conclusion that the reasons for termination
are pretextual. The additional reasons for pretext, as discussed above with animus, also
demonstrate that Respondent’s reasons were false, which leaves me with a finding that
Respondent indeed terminated Stroup due to unlawful motives.40
4. Conclusion on alleged 8(a)(3) and (4) Violations
As General Counsel presents a strong prima facie case and Respondent did not meet its
burden, I find that Respondent violated Section 8(a)(3), (4) and (1) by terminating Stroup. Based 45
JD-81-19
29
upon all the evidence, particularly upon the cover-up of Hamra’s initial assessment that the parts
could be reworked, the pretexts as discussed above, and the disparate treatment evidence, the
record leads to the conclusion that Respondent terminated Stroup due to not only his union
activities, but also because of his Board activities. Prototype Plastics, 294 NLRB 711, 715-716
(1987). 5
E. Confidentiality of Records
Both General Counsel and the Union subpoenaed documents for hearing. Throughout
the pre-hearing proceedings, Respondent requested a confidentiality order for documents that it 10
maintained were restricted due to national security and its contractual obligations. Respondent
was particularly sensitive to release of errors, customer names, and other items that it identifies
as trade secrets. However, Respondent also admitted that not all of its customers were
involved in national security. On August 14, 2019, I issued a temporary confidentiality order for
the documents General Counsel and the Union received pursuant to subpoenas duces tecum, 15
particularly those that Respondent maintained were subject to national security concerns. I
ordered that Respondent produce to General Counsel a log for privileges and confidentiality.
The last feature of the Order stated:
5. The Temporary Confidentiality Order will dissolve when the 20
administrative law judge’s decision issues. In post-hearing briefs, the parties will
argue whether the Order should be made permanent and to which information the
Order should apply.
Respondent produced documents to General Counsel and the Union and claimed it 25
submitted all documents. General Counsel had in its possession, prior to receiving the
documents, the documents Respondent submitted to OESC, which Respondent claimed should
have been protected but were not. Additionally, GC Exh. 28, to which Respondent stipulated,
provided a table of errors and avoided inclusion of IRRs into the record. Throughout the hearing,
except for GC Exh. 27, which were the documents from OESC, the parties were careful to redact 30
the name of Respondent’s customers and the transcript reflects the same.
At hearing, I repeatedly reminded the parties to brief issues of confidentiality of
documents. General Counsel did so; the Union adopted the General Counsel’s brief; and,
Respondent failed to address the issue at all in its post-hearing brief.35
Administrative law judges have authority to issue protective orders. Teamsters Local 917
(Peerless Importers), 345 NLRB 1010, 1011 n. 7 (2005), citing AT&T Corp., 337 NLRB 689, 693
n. 1 (2002); United Parcel Service, 304 NLRB 693 (1991); National Football League, 309 NLRB
78, 88 (1992). Respondent, as the party seeking a protective order, bears the burden of 40
demonstrating “good cause” under Fed. R. Civ. Pro. 26(c) “or when a disclosure would clearly
defined and serious harm.” Impremedia, Case 29-CA-131066, unpub. Board order issued Jan.
14, 2015 (2015 WL 193732). Respondent must show particular and specific demonstration of
fact, as opposed to a mere conclusory or speculative claim of harm. Waterbed World, 289 NLRB
808, 809 (1998) (denying respondent’s motion of a protective order in part because of “scanty 45
and conclusory nature of respondent’s averments”).
JD-81-19
30
To the extent that Respondent seeks to keep confidential customer names, trade secrets
and business information, General Counsel is bound by the Freedom of Information Act (FOIA).
Under FOIA, the agency is required to promptly disclose records unless the agency can
demonstrate that one or more exemption applies. U.S. Dept. of State v. Ray, 502 U.S. 164, 173,
(1991). The agency must explain reasons for non-disclosure of documents and cannot rely upon 5
its administrative protective order designating a record confidential. General Elec. Co. v. NRC,
750 F.2d 1394, 1400 (7th Cir. 1984). FOIA’s Exemption 4 encompasses trade secrets and
commercial or financial information that are privileged and confidential. 5 U.S.C. 552(b)(4).
Regarding confidentiality of other documents, such as those provided in response to the 10
Union’s subpoena, Respondent’s post-hearing brief disregarded the August 14, 2019 Order:
Respondent did not address whether the confidentiality order should be made permanent, much
less identify which information should be kept confidential. As a result, I must conclude that
Respondent waived its arguments, much less made a showing of “good cause.” The Temporary
Confidentiality Order is hereby dissolved.15
CONCLUSIONS OF LAW
1. BS&B Safety Systems, LLC (Respondent) is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.20
2. The following are Respondent’s supervisors within the meaning of Section 2(13) and/or
agents within the meaning of Section 2(11) of the Act:
a. Dr. Charles Hart Corporate Director, HR, EH-S and NAFTA
b. Tim Jones Supervisor
c. Allan Roberts Production Manager25
d. Dennis Amend Operations Manager
e. Lori Sook Quality Control Manager
3. Danny Hamra is an agent of Respondent within the meaning of Section 2(11) of the Act.
4. Charging Party United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO/CLC (the Union) and its 30
Local, Local 4992, are labor organizations within the meaning of Section 2(5).
5. On April 9, 2019, Respondent violated Section 8(a)(3) and (1) of the Act when it
discharged Michael Stroup for union and other protected activities.
6. On April 9, 2019, Respondent violated Section 8(a)(4) and (1) of the Act when it
discharged Michael Stroup for cooperating and assisting the Board in its proceedings, 35
including settlement proceedings.
7. The unfair labor practices described above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY40
Having found that Respondent engaged in certain unfair labor practices, it is ordered to
cease and desist and to take certain affirmative action designed to effectuate the policies of the
Act.
45
JD-81-19
31
Specifically, having found that Respondent Liberty violated Section 8(a)(4), (3), and/or (1)
by discharging Michael Stroup, Respondent is ordered to make Stroup whole for any loss of
earnings and other benefits suffered as a result of the unlawful discrimination against him.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as 5
prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with our decision
in King Soopers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d 23 (D.C. Cir.
2017), Respondent shall compensate Stroup for his search-for-work and interim employment
expenses regardless of whether those expenses exceed interim earnings. Search-for-work and
interim employment expenses shall be calculated separately from taxable net backpay, with 10
interest at the rate prescribed in New Horizons, supra, compounded daily as prescribed in
Kentucky River Medical Center, supra. In addition, we shall order the Respondent to compensate
the named employees for any adverse tax consequences of receiving a lump-sum backpay award
and to file a report with the Regional Director for Region 14 allocating the backpay award to the
appropriate calendar years. AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).15
Respondent shall also be required to remove from its files any reference to the unlawful
discharge and to notify Stroup in writing that this has been done and that the unlawful discharges
will not be used against them in any way.
20
The Union requests an additional remedy: Requiring either Dennis Amend or Dr. Hart, or
a representative of the Board while a management representative is present, to read the notice
to employees. The Union argues that this remedy is necessary due to Respondent’s pervasive
violations of the Act, including those from the previous complaint for which testimony was elicited
to support animus. Because I do not make findings regarding the 2018 unfair labor practices,25
reading the notice is not warranted.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended
30
ORDER
1. Cease and desist from
a. Discharging employees because they engaged in union and/or other protected
concerted activities.35
b. Discharging employees because they gave assistance, testimony
c. In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.40
a. Make Michael Stroup whole for any loss of earning and other benefits suffered as
a result of the discrimination against him, in the manner set forth in the Remedy
section of this decision.
b. Compensate Michael Stroup for his search-for-work and interim employment
expenses, plus interest, regardless of whether those expenses exceed interim 45
earnings.
JD-81-19
32
c. Within 14 days from the date of this Order, remove from its files any refence to
the unlawful discharge of Michael Stroup, and within 3 days thereafter, notify him
in writing that this has been done and the discharge will not be used against him
in any way.
d. Preserve and, within 14 days of a request or such additional time as the Regional 5
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records,
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.10
e. Within 14 days after service by the Region, post at its Tulsa, Oklahoma facility
copies of the attached notice marked “Appendix.”33 The notice shall be posted in
English and any other language deemed necessary by the Regional Director.
Copies of the notice, on forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized representative, shall be 15
posted by Respondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if Respondent customarily communicates with its 20
employees by such means. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or covered by any other
material. If Respondent has gone out of business or closed its Tulsa, Oklahoma
facility, Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by Respondent 25
at any time since April 1, 2019.34
f. Within 21 days after service by the Region, file with the Regional Director for
Region 14 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps Respondent has been taken to comply.
30
Dated Washington, DC, October 21, 2019
35
Sharon Levinson Steckler
Administrative Law Judge

33 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 National Labor Relations Board” shall read “posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
34 I select April 1 as the day on which Stroup was suspended.
Av.i47voqietik;000,,&--Fide,.
JD-81-19
WE WILL NOT discharge you because you engaged in union and/or other protected concerted
activities.
WE WILL NOT discharge you because you assisted in a Board investigation or testified in a Board
hearing.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise
of the rights listed above.
WE WILL, within 14 days from the date of the Board’s Order, offer Michael Stroup full
reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Michael Stroup whole for any loss of earnings and other benefits resulting from
his unlawful discharge, less any net interim earnings, plus interest and
WE WILL also make him whole for reasonable search-for-work and interim employment
expenses, plus interest.
WE WILL compensate Michael Stroup for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Regional Director for Region 14, within 21
days of th4e date the amount of backpay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference
to the unlawful discharge of Michael Stroup, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
Appendix
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
JD-81-19
BS&B SAFETY SYSTEMS, L.L.C.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
1222 Spruce Street, Room 8.302, St. Louis, MO 63103-2829
(314) 539-7770, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/14-CA-239530
or by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER (314) 449-7493