Faurecia Exhaust Systems

National Labor Relations Board - Administrative Judge Opinions

Oct 30, 2008

08-CA-037192 (N.L.R.B. Oct. 30, 2008)

JD–57–08
Toledo, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FAURECIA EXHAUST SYSTEMS, INC.
Cases 8–CA–37192
and 8–CA–37229
8–CA–37354
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW, REGION 2-B
Rudra Choudhury, Esq.,
for the General Counsel.
Michael A. Snapper and Keith J. Brodie, Esqs.,
(Barnes & Thornburg LLP), of Grand Rapids,
Michigan, for the Respondent.

SUPPLEMENTAL DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. I issued a decision in this matter on April 2,
2008. In 353 NLRB No. 34 (2008), the Board remanded the case to me regarding Marvin Blue’s
May 11, 2007 suspension and May 16, 2007 written warning,1 which I found violated Section
8(a)(3) and (1) of the Act. The Board determined that my analysis regarding the General
Counsel’s satisfaction of his initial burden under Wright Line2 was clear, but my Wright Line
analysis in rejecting Respondent’s rebuttal defense was not (“Specifically, we cannot discern
whether it is based on a dual-motivation analysis or a pretext finding.” Ibid, slip op. at 4). Thus,
the Board remanded the case for the following sole and limited purpose:
[T]he judge should explain which analytical framework under Wright Line he meant to
apply [as to the second prong of Wright Line], reanalyze the 8(a)(3) allegation under that
analysis, and specify the evidence relied on in reaching that conclusion.
I will address only aspects of the case pertinent to the remand.
Credibility
Respondent did not elicit testimony from any individuals whom Blue allegedly “harassed”
by asking them to obtain employee information for the Union. Notably, one of those persons
was gap leader Jennifer Samples, whom Respondent called as a witness. She testified about
other matters but was asked no questions on this subject. Although I concluded that Samples
was not a statutory supervisor, she had firsthand knowledge of the incidents on which
Respondent based the imposition of discipline on Blue, and she would have been reasonably

1 All dates hereinafter occurred in 2007, unless otherwise specified.
2 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
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expected to testify for Respondent about them. Her failure to do so raised the suspicion that her
testimony would have been unfavorable to Respondent, and I therefore drew an adverse
inference against Respondent on this issue. See Palagonia Bakery Co., 339 NLRB 515, 538
(2003); Dalikichi Sushi, 335 NLRB 622, 622 (2001); International Automated Machines, 285
NLRB 1122, 1123 (1987), enfd. mem 861 F.3d 730 (6th Cir. 1988).
Blue was generally credible and consistent, and I credited his unrebutted testimony
regarding the scope and nature of his activities.
Facts
When Blue worked for a previous employer, he served as a shop steward for the
Charging Party-Union (the Union). He has been a welder for Respondent since June 2006, with
Production Supervisor Jeff Lovejoy his immediate supervisor at all times. In about October or
November 2006, the Union contacted Blue about organizing Respondent’s employees, and at
around that time, he first talked to coworkers on the subject.

The facts set out in the following two paragraphs are based on Blue’s unrebutted and
credible testimony.
In early 2007, Blue had a conversation in the parking lot with Samples and welder Eric
Taylor, prior to the beginning of the shift. Blue stated that he sometimes thought the
employees needed a union. Samples replied that if Site Manager Jack Caccioppo heard him
talk about unions, he could get terminated.
In early April, the Union asked Blue to obtain employees’ names and phone numbers.
Later that month, Blue asked “Meechy,” the night-shift gap leader (whom Respondent no longer
employs), if he could get such information for Blue to pass on to the Union. Meechy said that he
would try. On or about May 9, Blue, in a telephone conversation, made the same request to
Samples, who also replied that she would try. He testified that he asked them because he
trusted them and believed they had access to the information; to wit, in the regular course of
their duties as gap leaders, they spent time in the supervisors’ office.

On the morning of May 11, at the conclusion of his morning break, Blue was called to a
meeting in the conference room with Caccioppo, Lovejoy, and quality engineer Bryan Kennedy.
Caccioppo stated that Blue was suspended until further notice, for violating company policy by
harassing people for names and phone numbers. Caccioppo gave no specifics, and Blue
denied any wrongdoing.
On the morning of May 16, Lovejoy called Blue and told him to come to a meeting in the
conference room that afternoon. Blue did so. Present were Caccioppo and Lovejoy, with
Human Resources (HR) Manager John Plenzler participating by conference call.
Plenzler read Blue verbatim the contents of General Counsel's Exhibit 14, a memo dated
May 16, 2007, from Plenzler to Blue, and signed by Plenzler and Caccioppo. The memo states
that management had received complaints regarding Blue’s behavior and the requests he made
of other employees for employee lists and phone numbers. The matter was fully investigated
and the determination made that Blue had violated the following provisions of the handbook
when he “persistently and improperly pressured a number of other employees to provide . . .
lists of employee names and phone numbers”: Section 1.2–harassment/sexual harassment,
and Section 1.3–productive work environment.
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Relevant portions of those sections are:
1.2–Harassment/Sexual Harassment; the opening paragraph states that the Company
“has established a strict policy prohibiting unlawful harassment (racial, national origin, color,
disability, religious, age, sexual, sexual orientation) of employees, including implied or
expressed forms of sexual harassment. . . .”
1.3–Production Work Environment Policy; in particular, “Any behavior that causes an
intimidating, threatening or unsafe environment is unacceptable. Examples of unacceptable
behavior may include the use of profanity, gossip, and/or the spreading of rumors, physical
intimidation, creation of unsafe conditions and mental harassment.”
Plenzler further stated that Blue’s “attempts to obtain employee phone numbers was an
attempt to violate Section 1.10 of the handbook, which protects the confidentiality of employee
records. You have no right to such information from company records, and your actions
threatened the privacy of your fellow employees as well as company policy.”
Section 1.10 relates to personnel records. The relevant paragraph states, “Your
personnel record is considered confidential. Other than verification of employment, personnel
information will not be released to outside parties without your permission. . . .”
Plenzler warned Blue that any further violation of those policies would subject him to
discipline up to and including termination, asked him to sign the memo, and stated he would
have his job back. Blue signed it. I credit Blue’s unrebutted testimony that he then said he
wanted it on record that he supported the Union and knew his rights, and Plenzler
acknowledged there was “activity” in December 2006 and January, of which Blue was part.
Plenzler told Blue that he could return to work the following day and would be paid for the time
he was suspended. Blue lost no pay or other benefits as a result of the suspension.
The parties stipulated that General Counsel’s Exhibit 18 is comprised of the only
documents that Respondent furnished in response to the following portion of the General
Counsel’s subpoena duces tecum: all employees at the facility who were disciplined for
harassment and/or sexual harassment during the period from July 26, 2005–July 26, 2007.
Those documents show that only one employee other than Blue has been disciplined for
such reason: Matt Kirshner, who in October 2006 received a 1-day suspension for making
racist remarks to other employees. Respondent provided no documentation that it has
disciplined anyone other than Blue for misconduct pertaining to the work environment or
confidentiality of employee records.
The parties stipulated that management knew of Blue’s union activities beginning on
about December 13, 2006. An e-mail of that date from HR Manager Plenzler referred to Blue’s
“persistence” in talking to other employees about the Union, and reflected management’s
concern over this.3
Soon afterward, Plenzler, by e-mail dated December 19, 2006, directed supervisors to
investigate the “complaints” against Blue.4 In that e-mail, he also stated that “I would like to

3 See GC Exh. 5 at 1. See also GC Exh. 6.
4 GC Exh. 7.
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finalize a date to meet with the workforce regarding our Union Free Policy as this is heating up
quickly.”
On May 3, 2007, just 8 days before Blue’s suspension, Plenzler sent an e-mail to
Caccioppo entitled “Union Activity,” in which he discussed reports of (unnamed) employees
soliciting support for the Union and expressed his opinion that “the union is coming after us in
strength.”5
In an e-mail dated May 15, 2007, after Blue’s suspension, Caccioppo advised Plenzler
that regarding the third shift, Blue had been “very pro-Union in his discussions and comments all
the time” with one employee but had not asked him for any information.6
Finally, Supervisor Eric Plenzler, in an e-mail dated July 27, 2007, to Supervisors
Lovejoy and Tonia Carter, stated that a change in labeling employee lockers “may not be a
good idea with all of the union stuff going on. Marv [Blue] has already been disciplined for trying
to get the names of all of the hourly people, why should we make it easier for him to obtain this
information?”7
Analysis and Conclusions
The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line. Under
Wright Line, the General Counsel must make a prima facie showing sufficient to support an
inference that the employee’s protected conduct motivated an employer’s adverse action. The
General Counsel must show, either by direct or circumstantial evidence, that the employee
engaged in protected conduct, the employer knew or suspected the employee engaged in such
conduct, the employer harbored animus, and the employer took action because of this animus.
The Board did not take issue with my analysis in concluding that the General Counsel
established a prima facie case, and I will not repeat it here.
Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. The burden
of persuasion then shifts to the employer to show that it would have taken the same adverse
action even in absence of such activity. NLRB v. Transportation Corp., 462 U.S. 393, 399−403
(1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); SPO Good-Nite Inn, LLC,
352 NLRB No. 42, slip op. at 2 (2008); Serrano Painting, 332 NLRB 1363, 1366 (2000).
As the Board stated in its remand, if the employer’s proffered defenses are found to be a
pretext, i.e., the reasons given for the employer’s actions are either false or not in fact relied on,
the employer fails by definition to show that it would have taken the same action for those
reasons, and there is no need to perform the second part of the Wright Line analysis. SPO
Good-Nite Inn, LLC, supra. On the other hand, further analysis is required if the defense is one
of “dual motivation,” i.e., the employer defends that, even if an invalid reason might have played
some part in the employer’s motivation, the employer would have taken the same action against
the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d
323, 223 (D.C. Cir. 2006).

5 GC Exh. 8.
6 GC Exh. 9.
7 GC Exh. 13 at 2.
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For the following reasons, I conclude that Respondent’s defenses were a pretext and fail
on that basis.
A series of internal company e-mails going back as far as December 2006 demonstrate
Respondent’s ongoing hostility toward Blue for his solicitation of coworkers to support the
Union, as well as surveillance of his union activities.
Respondent failed to offer any direct evidence in the way of testimony from purported
complainants, even one who testified at the trial on other matters. Respondent therefore failed
to rebut Blue’s credited testimony that he merely asked two gap leaders for employees’ names
and phone numbers with the avowed purpose of passing the information on to the Union—
conduct which can hardly be deemed to amount to “harassment” under any reasonable
construction of the term.
Respondent’s harassment/sexual harassment policy addresses “unlawful harassment
(racial, national origin, color, disability, religious, age, sexual, sexual orientation) of employees,
including implied or expressed forms of sexual harassment. . . .” Blue’s conduct did not fit within
any of these categories. Thus, during the 2-year period from July 26, 2005–July 26, 2007,
Respondent disciplined only one other employee for violating its harassment/ sexual
harassment policy, and that was for making racist remarks. The record further reflects that no
employee other than Blue has been disciplined for breaching either Respondent’s confidentiality
or work environment policies.
Respondent issued Blue a suspension without providing him the specifics of the
allegations against him or affording him an opportunity to respond. This leads to the conclusion
that management was not genuinely interested in what actually happened but was instead using
alleged violations of company policy as a pretext. See Diamond Electrical Mfg. Corp., 346
NLRB 857, 861 (2006); Joseph Chevrolet, Inc., 343 NLRB 7, 8 (2004), enfd. mem. 162 Fed.
App. 541 (6th Cir. 2006). The written warning that followed the suspension must be considered
part of the same chain of events and, by analogy to the “fruit of the poisoned tree” principle, was
also tainted.
Accordingly, I conclude that Respondent would not have suspended Blue on May 11, or
issued him a written warning on May 16, in the absence of his protected union activity, and that
such adverse actions therefore violated Section 8(a)(3) and (1) of the Act.
ORDER
The Respondent, Faurecia Exhaust Systems, Inc., Toledo, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Issuing warnings to, suspending, or otherwise disciplining employees because they
engage in activities on behalf of International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Region 2-B, or any other labor organization.

(b) 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.
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(a) Within 14 days from the date of the Board’s Order, remove from its files any
references to the May 11, 2007 suspension, and the May 16, 2007 written warning, issued to
Marvin Blue, and within 3 days thereafter, notify him in writing that this has been done and that
the suspension and warning will not be used in any way against him.
(b) Within 14 days after service by the Region, post at its facility at Toledo, Ohio, copies
of the attached notice marked “Appendix A.”8 Copies of the notice, on forms provided by the
Regional Director for Region 8 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
May 11, 2007.
(c) Within 21 days after service by the Region, file with the Regional Director for Region
8 a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
Dated, Washington, D.C. October 30, 2008.
_______________________
Ira Sandron
Administrative Law Judge

8 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.”
JD–57–08
Toledo, OH

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
WE WILL NOT issue you written warnings, suspend you, or otherwise discipline you
because you engage in activities on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, UAW, Region 2-B, or any other
labor organization.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL remove from our files any reference to the unlawful suspension and warning of
Marvin Blue, and within 3 days thereafter notify him in writing that this has been done and that
the suspension and warning will not be used against him in any way.
FAURECIA EXHAUST SYSTEMS, INC.
(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.
1240 East 9th Street, Federal Building, Room 1695
Cleveland, Ohio 44199-2086
Hours: 8:15 a.m. to 4:45 p.m.
216-522-3716.
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
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COMPLIANCE OFFICER, 216-522-3723.