Gestamp South Carolina, LLC

National Labor Relations Board - Board Decisions

Dec 8, 2011

357 N.L.R.B. 1563 (N.L.R.B. 2011)

GESTAMP SOUTH CAROLINA, LLC
357 NLRB No. 130
1563
Gestamp South Carolina, LLC and David Anthony
Kingsmore and Reggie Alexander. Cases 11–
CA–022595 and 11–CA–022628
December 8, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On March 2, 2011, Administrative Law Judge Ira San-
dron issued the attached decision. The Respondent filed
exceptions.
The Board has considered the decision and the record1
in light of the exceptions and has decided to affirm the
judge’s rulings, findings,2 and conclusions and to adopt
the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gestamp
South Carolina, LLC, Union, South Carolina, its officers,
agents, successors, and assigns, shall take the action set

1 The Respondent has requested oral argument. The request is de-
nied as the record and exceptions adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Member Hayes agrees with the judge that the General Counsel es-
tablished the animus element of his prima facie case under Wright Line,
251 NLRB 1083 (1980), enfd. 663 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), based on Supervisor Fink’s comment to
Kingsmore that “you’re gone” if Manager Evola found out about his
union activity, the timing of the adverse actions against employees
Kingsmore and Alexander, and the Respondent’s shifting reasons for
disciplining Kingsmore. Further, he agrees that the Respondent failed
to meet its Wright Line rebuttal burden to show that it would have
terminated Kingsmore and suspended and fired Alexander even in the
absence of their protected activity. In finding the violations, however,
Member Hayes does not rely on the quality of the Respondent’s inves-
tigation, the severity of the Respondent’s punishments, or the alleged
failure to follow the progressive discipline system in finding animus.
Nor does Member Hayes rely on the judge’s finding that it “is reasona-
ble to believe that other employees reported Alexander’s and
Kingsmore’s union activity to management” in finding that the Re-
spondent knew of the employees’ union activity. Further, he would not
draw an adverse inference based on the failure of General Manager
Evola to testify regarding when he learned about Kingsmore’s inability
to access the BMW site.
3 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
forth in the Order as modified by substituting the follow-
ing for paragraph 2(f).
“(f) Within 14 days after service by the Region, post at
its Union, South Carolina facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 11,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 em-
ployees and former employees employed by the Re-
spondent at any time since February 1, 2010.”

Jasper C. Brown Jr., Esq., for the General Counsel.
John J. Coleman III and Marcel L. Debruge, Esqs. (Burr &
Forman, LLP), of Birmingham, Alabama, for the Respond-
ent.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. This matter arises
out of a consolidated complaint and notice of hearing issued on
September 30, 2010,1 against Gestamp South Carolina, LLC
(the Respondent or Gestamp), stemming from unfair labor prac-
tice (ULP) charges filed by David Anthony Kingsmore and
Reggie Alexander, individuals. The complaint alleges that the
Respondent violated Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act) by suspending and then discharg-
ing Kingsmore and by discharging Alexander because they
engaged in organizing activities on behalf of the United Steel-
workers (the Union). The complaint further alleges that a su-
pervisor committed two independent violations of Section
8(a)(1).
Pursuant to notice, I conducted a trial in Columbia, South
Carolina, from December 6–10, at which I afforded the parties
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 All dates hereinafter occurred in 2010, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1564
Issues
(1) Did the Respondent suspend Kingsmore on February 17,
and then discharge him on February 24, because he did
not disprove the Respondent’s suspicion that he misrepre-
sented the nature of his separation from prior employer
BMW during his September 29, 2009 interview for a su-
pervisory position, or because of his union activities?

(2) Did the Respondent discharge Alexander on February 19
because he deliberately falsified his timesheet by claim-
ing 38 extra minutes of pay for February 9, or because of
his union activities?

(3) Is Michael Fink a statutory supervisor and agent of the
Respondent?

(4) Did Fink, in approximately early February, unlawfully
threaten Kingsmore with discharge for his union activi-
ties?

(5) Did Fink, on February 11, unlawfully interrogate Alexan-
der about his union activities?
Witnesses and Credibility
The General Counsel called Alexander and Kingsmore, Un-
ion Organizer Randy Rigsby, and the following employees:
Human Resources (HR) Assistant Mary Harper, CMM Techni-
cian Jimmy Stewart, Jr., and Forklift Driver Dean Tollison.
The Respondent called the following managers/supervisors:
HR Manager Susan Becksted, Maintenance Manager Dennis
Blanton, General Manager Carmen Evola,2 Director of Purchas-
ing and Logistics Roger Fuller, Quality Supervisor James Holt
(who was an hourly employee at all times relevant), Mainte-
nance Supervisor Daniel Morris, Assembly Shift Supervisor
Jason O’Dell, Shipping and Receiving Manager Michael Sulli-
van, and Quality Manager Jurgen Weckerman.
The Respondent also called Quality Engineers Michael Fink
and Charles Beasley. The General Counsel alleges Fink to be a
statutory supervisor, a contention that the Respondent denies.
Although Beasley holds the same position as Fink, he is not
named in the complaint, and it is immaterial for purposes of
this decision whether or not he is a statutory supervisor.
Further, the Respondent called two employees: Line Tech-
nician Dominic Gist, Sr., and IMS Leader Jennifer Meese.
Deciding the issues in this case hinges on credibility resolu-
tion, including the plausibility of certain accounts of conversa-
tions and actions. Before going into specifics, I cite the well-
established precept that “‘[N]othing is more common in all
kinds of judicial decisions than to believe some and not all’ of a
witness’ testimony.” Jerry Ryce Builders, 352 NLRB 1262,
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S.
474 (1951). The trier of fact must consider the plausibility of a
witness’ testimony and appropriately weigh it with the evidence
as a whole. Golden Hours Convalescent Hospitals, 182 NLRB
796, 787–799 (1970).
Alexander was generally credible. He answered questions

2 Evola has been the highest management official at the facility at all
times relevant. See R. Exh. 10, an organizational chart.
readily and with no apparent efforts to embellish or slant them,
was appropriately consistent in his answers on direct and cross-
examination, and his testimony comported with that of Rigsby,
who was also credible.
Kingsmore, on the other hand, was not fully reliable. I do
take into account his apparent lack of sophistication and per-
haps naïveté. This is reflected in his answer to my question of
why he confided in Fink that he was trying to get the Union in.
He readily answered that Fink “kind of made Alex Keller
[Kingsmore’s supervisor] leave me alone . . . Keller was not a
very nice person. . . . I’d had him throw stuff at me, cuss at me
and grab me once.”3 That Kingsmore took such abuse from a
supervisor certainly indicates that he was unaware of his ave-
nues of recourse.
Nonetheless, the following factors diminish his credibility,
particularly vis-à-vis other witnesses who struck me as more
reliable. As Kingsmore’s testimony progressed, he expanded
on antiunion sentiments expressed by management/supervisors;
his testimony that the Union did not instruct him to try to keep
organizational activities from management’s knowledge was
contradicted by Rigsby and Alexander (and possibly by com-
mon sense); and his testimony on cross-examination did not
fully comport with what he said on direct examination.
The Respondent raised an issue about Harper’s status as a
confidential employee, but in any event, she credibly testified
only about general timekeeping practices in early 2010, and not
on anything specific pertaining to Alexander or Kingsmore.
Stewart, in contrast, was not a reliable witness. His demean-
or was markedly defensive. That aside, his testimony was un-
believable. Thus, he testified that at around the time Alexander
was discharged, he was working at a computer when he over-
heard Supervisor O’Dell make the statement on the floor, about
7 or 8 feet away, “We got one of them. Now the rest of them
will probably be scared now, but there’s a couple more of them
we got to get.”4 Yet, according to Stewart’s own testimony, he
reacted casually and did not even bother to look up from the
computer. This is particularly odd in light of Rigsby’s credited
testimony that Kingsmore and Stewart were the first employees
to have contact with the Union and were the most active mem-
bers of the Union’s organized committee.
O’Dell denied making any such statement, and I do not be-
lieve that he would have been so crass. In this regard, I credit
the Respondent’s witnesses’ testimony that training was given
to supervisors concerning what they should and should not say
to employees. I also accept their testimony that everyone in the
production area must wear ear plugs, which interferes with
hearing normal speaking other than in face-to-face conversa-
tion. Accordingly, I do not credit Stewart’s testimony.
One other witness was noticeably defensive: Manager Sulli-
van, who appeared ill at ease throughout his testimony. As
with Stewart, reasons aside from demeanor also lead me to

3 Tr. 437. Kingsmore’s testimony about his relationship with Fink
was supported by Fink’s credible testimony that Kingsmore and other
employees came to him to “vent” or seek advice when they experienced
language problems with Keller and other members of the salaried group
who had come from Germany. Tr. 607.
4 Tr. 68.
GESTAMP SOUTH CAROLINA, LLC 1565
doubt his believability. Thus, he testified that he had no con-
versations with Alexander about the discrepancy in the latter’s
timecard records but then was directly impeached on this point
by statements in his NLRB affidavit. He further testified that
the reports two employees made to him that Alexander had
come in late on February 9 did not lead him to investigate and
compare the records, testimony that again was contradicted by
his affidavit. Moreover, his testimony that he came across the
discrepancies the following Monday in his routine checking of
employees’ weekly hours for payroll was also inconsistent with
his affidavit. I further note that his testimony about his role in
checking the pertinent payroll records conflicted with Beck-
sted’s account.
This brings up a significant flaw in the Respondent’s presen-
tation of its case. Alexander’s direct supervisor, Jean
DeShields, was not called as a witness even though both Sulli-
van and Becksted testified (albeit differently) that she played a
role in the investigation of Alexander’s timecard and how it
compared with the time clock records. I would have expected
DeShields to testify on her role in Alexander’s investigation,
particularly when the Respondent’s witnesses were incon-
sistent.
Similarly, Becksted testified that in early February, General
Manager Evola told her that he had “just” learned that
Kingsmore had been barred from BMW (an event that occurred
in August 2009, 6 months earlier) and that they discussed what
to do, yet the Respondent did not have Evola testify either
about the circumstances of how he learned or about his conver-
sation with Becksted. Leaving aside Kingsmore’s testimony,
Supervisor Morris testified that he told Keller and Maintenance
Supervisor Axel Zimmerman that day. Moreover, Becksted
testified that when she called Keller in Germany in February,
Keller confirmed Kingsmore’s testimony that on the day
Kingsmore was barred, he called Keller and reported it. I
would have expected Evola to testify about when and from
whom he “just” learned of the BMW incident in February, es-
pecially in light of the timing of the investigation and discipli-
nary action vis-à-vis Kingsmore’s union activities.
The Respondent’s failure to call DeShields or to elicit testi-
mony from Evola on the above must be deemed to raise the
suspicion that their testimony would not have corroborated
Becksted and would have been unfavorable to the Respondent’s
case. I therefore draw an adverse inference against the Re-
spondent on these matters. 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).
I further note with regard to Becksted’s testimony that alt-
hough she provided a very detailed account of her suspension
interview with Kingsmore on February 17 (and her subsequent
conversations with him), she professed little recall of specifics
about her discharge interview with Alexander, just 2 days later.
I also find suspicious her testimony that she did not know the
name or identity of the person at BMW with whom she alleged-
ly spoke concerning Kingsmore, and purportedly could not
recall if she even documented such conversation at all. I would
expect that, as an experienced and trained HR manager at a
facility employing over 100 hourly employees, she would have
realized the importance of documenting any such conversation,
especially when Kingsmore was on suspension and facing dis-
charge.
In contrast to my reservations about Becksted’s credibility,
Managers/Supervisors Blanton, Holt, Morris, O’Dell, and
Weckerman appeared candid, they answered questions without
any obvious attempt to slant the answers, and nothing in their
testimony rang implausible. I will address Fink separately
since his supervisory status is disputed.
Blanton indirectly supported Alexander’s testimony that at a
management meeting about the Union, certain employees
threatened or implied violence against union supporters.
Kingsmore testified that Blanton stated at such a group meet-
ing, “[W]hat pisses me off is and I take personally is Gestamp
came in here and bought us out, and the way we thank them is
by calling the damn union.”5 No other witnesses corroborated
Kingsmore on this, and I seriously doubt that Blanton would
have used such intemperate language. Accordingly, I do not
credit Kingsmore on this point.
Fuller denied Alexander’s testimony that they had a conver-
sation about how other employees were treating Alexander or
about the Union. The General Counsel does not allege that
Fuller said anything violating Section 8(a)(1) and, in light of
other credited testimony, I need not resolve this conflict.
Holt denied telling Kingsmore that Evola was firing employ-
ees because of their union activities, and I credit him.
Kingsmore did not testify at all about such an alleged statement
until cross-examination—an unfathomable omission on direct
examination and an example of how he expanded his testimony
as he went along. Moreover, nothing in the record reflects that
anyone was fired at the time.
As noted earlier, Morris testified that he informed Keller and
Zimmerman on the day that BMW barred Kingsmore. He also
corroborated in part Alexander’s testimony that antiunion em-
ployees had harassed him.
Weckerman denied Kingsmore’s testimony that immediately
after they left Kingsmore’s suspension meeting, they engaged
in a brief conversation during which Weckerman said,
“[P]eople are telling Carmen [Evola] that you are the one that
called the Union and he believe[d] them.”6 Weckerman testi-
fied that in their conversation, Evola was not mentioned. Ac-
cording to Weckerman, Kingsmore sua sponte stated that his
suspension was due to people saying he was related to the Un-
ion, and Weckerman did not respond. Because Kingsmore
equivocated on whether he or Weckerman brought up the Un-
ion in the conversation, and in light of my overall credibility
determinations, I credit Weckerman’s account.
Fink struck me as truthful and reliable, a conclusion based
both on his demeanor and on the substance of his testimony. In
particularly, he candidly described a conversation that he had
with Kingsmore about the Union in January–February, and he
readily answered my questions concerning his supervisory au-
thority over two offsite Gestamp employees who work fulltime
at BMW. I further take note that although Alexander testified
that Fink made a comment to him in early February that

5 Tr. 443.
6 Tr. 454; see also Tr. 597.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1566
demonstrated knowledge of Alexander’s union activities, the
Respondent’s counsel did not elicit from Fink a denial or, in-
deed, any testimony, about such a remark. Thus, Alexander’s
version went unrebutted, and I credit it.
To the extent that Beasley’s testimony was inconsistent with
Fink’s in terms of their responsibilities and duties, I credit the
latter. Finally, Gist, and Meese offered limited but generally
credible testimony.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents,7 and stipulations,
as well as the thoughtful posttrial briefs that the General Coun-
sel and the Respondent filed, I find the following.
The Respondent, a subsidiary of a company headquartered in
Troy, Michigan, which in turn is a division of Gestamp Auto-
mocion in Spain, owns and operates a plant in Union, South
Carolina (the facility). There, it assembles and presses large
“Class A” motor vehicle parts, the large outer pieces of a vehi-
cle that the consumer first sees (including doors, hood, and
roof). The Respondent has admitted jurisdiction as alleged in
the complaint, and I so find.
The Respondent purchased the facility from LSP effective
October 1, 2009. It retained LSP’s employees and continued
LSP’s personnel policies, including those set forth in the LSP
employees’ handbook.8 The handbook provided, inter alia, that
misleading or false statements made in an application form or
during an interview would result in withdrawal of an offer of
employment or in immediate dismissal (p. 11). The handbook
also contained a provision (p. 25) setting out three steps of
discipline: verbal warning, written warning, and termination,
depending on the severity of behavior; stating that the Compa-
ny could also utilize a fourth step of suspension without pay;
and reserving the Company’s right, in its sole discretion, to
determine the appropriate corrective action, including termina-
tion.
At the time of the Union’s organizing efforts, in January–
February, the Respondent employed approximately 100–110
hourly production employees and 35 salaried employees, in-
cluding supervisors and engineers. The Respondent’s sole
customer was BMW, for which it made Class A parts for the
BMW X6, a “crossover” or luxury vehicle. Most employees
worked either the first (8 a.m.–4 p.m.) or second (4 p.m.–
midnight) shifts. Only a small “skeleton” crew worked the
third shift, midnight–8 a.m.
Alexander, hired by LSP in June 2007, was a supply coordi-
nator on the first shift and responsible for taking care of parts
and supplies that employees needed throughout the plant. He
was the sole employee based in the tool crib or general storage
area and spent about 80 percent of his working time there, the
remainder in various areas of the facility. Alexander’s supervi-
sor was Logistics Manager Jean DeShields; however, Sullivan
had the responsibility of timekeeping for her employees, as
well as those he directly supervised. Alexander testified with-
out controversion that prior to his termination, he received no

7 The Respondent’s unopposed motion to supplement the record,
filed on January 14, 2011, is granted.
8 R. Exh. 9, in effect at all times material.
written warnings or suspensions.
Kingsmore, whom LSP hired in May 2007, was a first-shift
quality inspector. His job was to inspect body parts and inner
body parts for defects or for any other problems that would
keep them from passing BMW’s standards. On a daily basis,
he left his work station and went to other areas of the building
to perform his duties. At times, another individual performed
more detailed checks, and Kingsmore had a counterpart on the
second shift. Keller was his supervisor until Michael Greene
took over in that position shortly before Kingsmore’s discharge.
The Respondent’s counsel represented that prior disciplines
Kingsmore received played no part in his discharge.9
Fink’s Status Under Section 2(11)
For purposes of this decision, Section 2(11) of the Act de-
fines “supervisor” as an individual having authority, in the
interest of the employer, to, inter alia, assign, reward, or re-
sponsibly direct other employees, or effectively to recommend
such action, if the exercise of such authority is not merely rou-
tine or clerical in nature but requires the use of independent
judgment. An individual need possess only one of these indi-
cia. NLRB v. Yeshiva University, 444 U.S. 672, 682 fn. 13
(1980); Mountaineer Park, Inc., 343 NLRB 1473, 1474 (2004);
Arlington Masonry Supply, Inc., 339 NLRB 817, 818 (2003).
Kingsmore testified that Fink regularly assigned him work
and overtime and authorized his requests for time off. On the
other hand, both Fink and Manager Weckerman, Keller’s su-
pervisor, testified to the contrary, stating that Fink had no su-
pervisory authority over Kingsmore. Fink did testify that, once
a month or so, at most, he instructed Kingsmore to perform
certain work, after first consulting with Keller, and that, on
occasion, he has signed off on an employee’s request for vaca-
tion when Keller was on vacation or otherwise unavailable.
Fink was a more credible witness than Kingsmore, and I
credit his corroborated testimony over Kingsmore’s. I again
note that according to both Kingsmore and Fink, Fink some-
times operated as something of an intermediary between
Kingsmore and Keller, with whom Kingsmore had a difficult
relationship, in part because of language issues.
As to Fink’s occasionally substituting for Keller in granting
requests for vacation leave, sporadic assumption of supervisory
duties is insufficient to establish supervisory status at other
times. See, e.g., Kanawha Stone Co., 334 NLRB 235, 237
(2001); Carlisle Engineered Products, 330 NLRB 1359, 1361
(2000). This same rationale would appear applicable to Fink’s
less-than-monthly instructions to Kingsmore to perform certain
work. Moreover, nothing in the record reflects whether Fink
sua sponte determined that Kingsmore should perform certain
work or received requests for such from other employees or
supervisors and then related them to Keller. In any event, the
burden to show supervisory status is on the party asserting
such. Loyalhanna Care Center, 352 NLRB 863, 865 (2008);
Masterform Tool Co., 327 NLRB 1071, 1071 (1999). The
General Counsel has not done so.
Accordingly, I find that Fink had no supervisory authority
over any hourly employees in the plant. On the other hand, his

9 Tr. 488.
GESTAMP SOUTH CAROLINA, LLC 1567
testimony reflected his supervisory authority over the two Ges-
tamp employees who work full time off-site at BMW’s plant in
Greer, South Carolina: Christopher Coggins and Reginald
Fleming. Thus, he gives them instructions, and if they have
any problems, they report them to him or Beasley. When they
need to take off early, they inform him or Beasley. If they need
time off for an emergency, they contact him or Beasley. In
such situations, Fink gives initial approval; final approval is left
to Weckerman, who has never disagreed with him. Fink and
Beasley prepare their biannual evaluations and review their
training reports, the results of which can impact on their getting
raises; Weckerman has never disagreed with Fink’s recommen-
dations. Fink’s authority to effectively recommend the perfor-
mance evaluations of the two off-site employees, which affects
their remuneration, is sufficient, standing alone, to establish
supervisory status. As the Supreme Court articulated in Yeshi-
va University, above, at 683 fn. 17:

The statutory definition of “supervisor’ expressly contem-
plates that those employees who “effectively . . . recommend”
the enumerated actions are to be excluded as supervisory. 29
U.S.C. § 152(11). Consistent with the concern for divided
loyalty, the relevant consideration is effective recommenda-
tion or control rather than final authority.

In Pepsi-Cola Co., 327 NLRB 1062, 1063 (1999), the Board
stated, “The fact that the account representatives exercise their
authority over employees who are not included in the bargain-
ing unit does not preclude the Board from finding the account
representatives to be statutory supervisors. Where the perfor-
mance of supervisory functions is ‘part and parcel of the indi-
vidual’s primary work product rather than an ancillary part of
their duties,’ the Board has found individuals to be statutory
supervisors although they exercise such authority over nonunit
personnel.” See also Union Square Theatre Management, 326
NLRB 70, 72 (1998); Rite Aid Corp., 325 NLRB 717 (1998);
Detroit College of Business, 296 NLRB 318, 320–321 (1989).
I recognize that the above cases pertain to whether an indi-
vidual was eligible to join the bargaining unit or was precluded
as a 2(11) supervisor. However, the same reasoning appears
applicable to whether statements made by such an individual to
rank-and-file employees are imputable to the employer. I am
unaware of any Board decisions expressing the doctrine that an
individual can be found a statutory supervisor for some purpos-
es but not for others. In other words, whether an individual is
or is not a statutory supervisor is an all-or-nothing proposition,
and holding otherwise would be anomalous.
I find, based on Fink’s testimony, that Fink’s supervision of
Coggins and Fleming is an important component of his primary
work responsibilities, particularly in light of the dependence of
Gestamp on BMW. Accordingly, I conclude that Fink has been
a statutory supervisor over the Respondent’s employees at the
BMW plant. Ergo, I further conclude that his statements to
employees at the facility, including Alexander and Kingsmore,
were imputable to the Respondent.
Union Organizing Activity
In late December 2009, Kingsmore initiated contact with the
Union in Pittsburgh, Pennsylvania, concerning organizing the
facility’s hourly employees.10 The Union assigned Rigsby to
follow up with him. Rigsby’s first contacts were with
Kingsmore and Stewart. The Union’s strategy, conveyed to
Alexander, Kingsmore, and other employees, was to keep or-
ganizing efforts from the Company’s knowledge.
Alexander and Kingsmore were among the seven or eight
employees on the organizing committee that Rigsby formed.
Rigsby held approximately four meetings of employees in late
January and early February, three at a hotel in Union, South
Carolina, and one in an apartment. Alexander and Rigsby at-
tended all but one of them. Alexander was vocal at these meet-
ings. After the last of the meetings, in mid-February, the Union
decided to discontinue its organizing efforts.
Both Alexander and Kingsmore spoke to other employees
about supporting the Union after work, on breaks, and during
and after lunch times.
In January–February, management became aware of the Un-
ion’s organizing efforts because of the many questions that
employees were asking on the subject,11 and Evola heard of
such activity on or before February 1.12
In approximately early February, Kingsmore had conversa-
tions concerning the Union with Fink and Sullivan, as fol-
lows.13
At his work area, Kingsmore told Fink that he was going to
try to unionize the plant. Fink warned him to be careful be-
cause if Evola found out, “[Y]ou’re gone.”14 As noted earlier,
Fink recalled that Kingsmore initiated a conversation about the
Union but could not recall the specifics, and both of them of-
fered testimony demonstrating why Kingsmore would have
considered Fink something of a confidant.
Kingsmore spoke to Sullivan in the smoking dock area. He
asked Sullivan what he thought about the Union. Sullivan re-
plied that it was good for employees and bad for management
and talked about his experiences working in union plants and
the pro’s and con’s of union representation. Kingsmore said
that he was going to try to get the Union in. Kingsmore credi-
bly testified that he had this conversation with Sullivan because
he considered him sympathetic. I again note Sullivan’s unreli-
ability as a witness.
Shortly thereafter, Kingsmore spoke to Sullivan before the
latter was scheduled to attend a meeting with the Company’s
legal counsel concerning the Union. Sullivan stated that if
Kingsmore had anything to say to him about the Union, to say
it then because after the meeting, Sullivan would no longer be
able to talk to him on the subject.
It is undisputed that Kingsmore later called Evola and told
him that rumors that Kingsmore was for the Union were false.
At the time, Evola testified, he had not heard any such rumors
“other than discussions with my attorneys.”15
In early to mid-February, management, through Evola or

10 R. Exh. 6 at 1–2.
11 Tr. 771, testimony of Blanton.
12 Tr. 909, testimony of Becksted.
13 The dates he gave for them were somewhat contradictory and con-
fusing as far as whether they occurred in late January–early February or
in mid-February.
14 Tr. 436.
15 Tr. 742.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1568
Blanton, conducted group meetings with approximately 20
employees each, explaining the Respondent’s perspective re-
garding unionization. The General Counsel has not alleged that
anything Evola or Blanton said violated the Act.
Alexander and Meese attended one of Evola’s meetings, on
about February 11,16 and Kingsmore one that Blanton led on
about that same date. Statements that other employees made at
and after those meetings reflect how divisive the issue of union-
ization was among them and the maelstrom of emotion generat-
ed.
Kingsmore testified that at the meeting he attended, an em-
ployee asked who had called the Union. Blanton replied that it
did not matter, and the employee said that when they found out,
“[W]e’re going to catch him in the parking lot and whip his
ass.”17 Although Blanton did not recall any employees making
threats at that meeting, he did recollect stating, “[T]here’s no
place for that. We need to make sure that that doesn’t hap-
pen.”18 These remarks would naturally follow the making of a
threat or suggestion of violence or other illegal retaliation
against union supporters, thereby indirectly corroborating
Kingsmore’s testimony, which I therefore credit.
At the meeting Alexander attended, Meese and other em-
ployees made remarks about the effects on employees if the
Union came in, including a possible shutdown. After the meet-
ing, Alexander returned to his work station. Soon afterward,
three employees came over, two together and one separately,
and accused him of being one of those trying to bring in the
Union. Alexander named Gist as one of them. Although Gist
put the time of their conversation as shortly after he and Alex-
ander arrived to work, he did recall approaching Alexander and
stating that he had overheard that Alexander might have some-
thing to do with the Union.
In part because Morris corroborated Alexander’s version of
what occurred, I credit Alexander. However, in any event,
Gist’s account is not necessarily inconsistent with Alexander’s
as far as substance and similarly reflects suspicions among
employees that Alexander was one of the chief union support-
ers.
Later that day, Alexander testified, he had a conversation
with Morris in the tool crib in which he related the accusations
that the three employees had made against him. Morris asked if
they were causing a hostile work environment, and Alexander
replied that he did not know. Morris’ account was quite simi-
lar. He recalled a conversation in the tool crib that they had
after he observed Alexander appearing quite upset. He asked
Alexander why he was so bothered, and Alexander answered
that “his coworkers were harassing him about this ‘union
stuff.’”19 Morris asked if he was being harassed, and he said
no. Morris reminded him of the Company’s antiharassment
policy and that Morris had an open door at all times.
I credit Alexander’s unrebutted testimony that following the

16 The date is based on Alexander’s testimony; the Respondent pro-
vided no documents or other evidence of another specific date of the
meeting.
17 Tr. 444.
18 Tr. 777.
19 Tr. 648.
conversation with Morris, Fink came by the tool crib and made
the comment, “I didn’t know you were one of the ones that was
trying to bring the Union in.”20 Alexander did not respond.
Another employee, whose identity Alexander could not recall,
was in the vicinity.
Alexander further testified that on the day he was dis-
charged, February 19, he brought the subject up again with
Fuller. According to Alexander, as Fuller walked by the tool
crib, they exchanged greetings, after which Alexander injected,
“I’ve had three different people come up to me, talking to me
about my union activity.”21 Fuller simply replied that he would
get back to him.
Fuller denied ever having such a conversation. My problem
with Alexander’s version concerns the date he gave—a week
after the incident occurred—and the absence of an explanation
of why he would have abruptly interjected the subject at that
time. Possibly, Alexander did make the statement to Fuller but
was mistaken as to the date and circumstances. Regardless, the
version that Alexander set out was implausible, and I do not
credit it.
Review of Alexander’s February 9 Time Records
Alexander, Becksted, Harper, and Sullivan all testified that it
was normal procedure at Gestamp for hourly employees to
create weekly self-prepared timesheets detailing their start
times, end times, and total hours, and to submit them to their
supervisors. All further testified that employees also “swiped”
in and out of an electronic time system upon arrival and depar-
ture, thereby creating an electronic timecard report that supervi-
sors used to verify the reporting on the timesheets. This system
of dual timekeeping began in December 2009, and Harper testi-
fied that through February employees were paid according to
their timesheets, which supervisors normally turned in to Har-
per by 5 p.m. on Mondays. As previously stated, Sullivan han-
dled timekeeping for DeShield’s employees, including Alexan-
der.
During the week of February 8, Alexander arrived late on
two occasions, February 9 and 10.22 He maintained a prepre-
pared template on his computer with 7 a.m. start times for his
timesheet. Most likely on Friday, February 12, he changed his
start time for February 10 to reflect his late arrival at 7:15 a.m.
but neglected to do so to reflect his late arrival at 7:38 a.m. on
February 9. Alexander had no record of timesheet cheating or
any other dishonest conduct, and I find it quite unlikely that he
would have deliberately falsified his timesheet, knowing that
Sullivan weekly checked his timesheet against the electronic
records. I therefore credit Alexander’s testimony that he did
not deliberately seek to steal 38 minutes of time but instead
simply forgot to make the change.
On the morning of February 9, two hourly employees whom
Sullivan directly supervised, Melvernia Jeter and Dean Tolli-
son, asked whether Alexander had a new start time after they

20 Tr. 316.
21 Tr. 318.
22 See GC Exh. 2, his timesheet for the week.
GESTAMP SOUTH CAROLINA, LLC 1569
observed him arrive late.23
Sullivan’s account of his subsequent actions conflicted with
his affidavit. He testified that their comment did not lead him
to inquire into Alexander’s timesheet and that he came upon
Alexander’s timecard 6 days later, in the usual course of busi-
ness of checking timecards for all logistics department employ-
ees. Similarly, he testified that their comment did not cause
him to handle Alexander’s timecard any differently. However,
in his affidavit, he stated that their remark triggered his investi-
gation into Alexander’s timesheet.
In any event, when Sullivan compared Alexander’s electron-
ic timecard24 to the timesheet Alexander submitted, he noticed
the discrepancy between the 7 a.m. start time in the timesheet
and the 7:38 a.m. start time reported by the electronic timecard
system for February 9. He advised Alexander of this discrep-
ancy when Alexander came to his office to request a vacation
day. Alexander insisted that if he wrote 7 a.m., then 7 a.m. was
correct. Alexander testified that Sullivan responded, “Well, I’ll
fix it this time. Be more careful about your time.”25 Sullivan
denied ever having any conversation with Alexander about the
discrepancy—testimony directly contradicted by Sullivan’s
affidavit and by Tollison’s, account that he witnessed Sullivan
and Alexander discuss the electronic time clock in Sullivan’s
office. In light of Sullivan’s impeachment on this point and his
general unreliability, I credit all of Alexander’s testimony re-
garding this conversation and find that Sullivan promised to fix
the discrepancy. Prior to Alexander’s termination meeting, no
one from management ever again mentioned the matter to Al-
exander.
Because Sullivan and Becksted offered different accounts of
DeShields’ involvement in the investigation of Alexander’s
time records, and the Respondent did not call DeShields as a
witness, I am not satisfied that the Respondent provided a full
and accurate account of what subsequently transpired. Suffice
to say, Sullivan, on February 15, corrected the timesheet by
striking out the 7 a.m. start time and manually writing in 7:38
a.m. above it, and correspondingly adjusted the total hours for
the day from 8 hours to 7.12 hours. These corrections were
made before Alexander’s timesheet for the week went to pay-
roll, and he was in fact paid for only the actual hours that he
worked.
Becksted testified that after she confirmed the discrepancy
with DeShields, she brought the matter to Evola’s attention.
However, she did not describe the conversation on the record,
and Evola offered no testimony thereon.
I credit the following testimony of Alexander over Sullivan’s
denial. On two earlier occasions, both about 3 months before
Alexander’s termination, Sullivan corrected his timesheets. In
both instances, they concerned Alexander’s inadvertent failure
to put in dates. I note that Sullivan admitted to correcting other
employees’ timesheets on occasions when the electronic time
system was not working properly.

23 I credit Sullivan on this. His testimony comported with statements
in his affidavit, GC Exh. 11, and Tollison testified that he did not re-
member and therefore did not controvert Sullivan’s version.
24 GC Exh. 3.
25 Tr. 320.
Alexander’s Discharge on February 19, 2010
Becksted conducted a termination meeting with Alexander
on the afternoon of February 19, in Fuller’s office. Fuller and
DeShields were also present. Fuller testified that he played no
part in the decision to discharge Alexander and attended solely
as a witness. Becksted began by describing the time discrepan-
cy on February 9 between the 7 a.m. self-reported start time and
the 7:38 a.m. start time shown by the electronic timecard. Al-
exander replied that he had discussed the problem with Sulli-
van, who had promised to fix it. Fuller interjected that he had
no knowledge of that. Becksted stated that Alexander had vio-
lated company policy and was immediately terminated for falsi-
fying his timesheet.
Kingsmore’s Suspension on February 17
Before coming to LSP, Kingsmore was employed at BMW
from August 9, 1999, to May 21, 2007.26 His employment
application for LSP was blank as far as previous employment,27
and he did not fill out a new application when Gestamp as-
sumed control of the facility.
In August 2009 (the exact date is unknown), while the plant
was still under LSP ownership, both Kingsmore and Supervisor
Morris were scheduled to take a tour of BMW’s Geer, South
Carolina plant. Morris was allowed entry, but Kingsmore was
denied entrance. BMW representatives gave neither him nor
Morris any reason for this bar. Morris proceeded to go on with
the tour, which lasted 2 to 3 hours. Afterward, he returned to
the LSP plant and informed both his own supervisor, Axel
Zimmerman, and Kingsmore’s supervisor, Keller, that
Kingsmore was denied access. Immediately after being barred,
Kingsmore called Keller from the BMW parking lot and in-
formed him of what had occurred. When Becksted spoke with
Keller in February, he confirmed that Kingsmore had called
him in August 2009 and stated that he had been denied access
into the BMW plant.
Kingsmore testified, in considerable detail, that as soon as he
returned to LSP that day, he went into Evola’s office and told
Evola that guards at BMW had refused to allow him to enter
the plant. Per Kingsmore, “I went to Carmen’s office, and I
said they wouldn’t let me in. And he said I don’t know what I
was thinking. He said I knew they wasn’t [sic] going to let you
in; you used to work there. I said yes, sir. He said, well, I’m
sorry I wasted your time. I said, no, you didn’t waste my time.
I said I’ve been on the clock.”28 Kingsmore’s account of in-
forming Evola remained substantively consistent throughout his
testimony.
Evola directly contradicted this account, testifying both that
he and Kingsmore never had any conversations about
Kingsmore’s inability to enter BMW and that in August 2009,
he had no knowledge that Kingsmore was barred from BMW.
In this regard, Becksted testified that Evola approached her in
early February and told her that he had “just” learned that
Kingsmore had been barred from BMW.29 She could not recall

26 See GC Exh. 5.
27 R. Exh. 12.
28 Tr. 472.
29 Tr. 924.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1570
what he said about who informed him. The Respondent’s fail-
ure to have Evola testify about how and when he learned that
Kingsmore was barred from BMW (or concerning his conver-
sation with Becksted) raises the suspicion that Evola’s testimo-
ny on when he learned of the bar would have been unfavorable
to the Respondent’s case. I therefore draw an adverse inference
against the Respondent on the matter and credit Kingsmore’s
testimony that he told Evola in August 2009.
On September 2, 2009, Kingsmore applied internally for
promotion to a quality supervisor position, for which Becksted
and Weckerman interviewed him on September 29, 2009. In
the course thereof, Becksted asked why he had left BMW. He
replied that he was tired of the long commute and being away
from his family. She did not specifically ask if his separation
from BMW was voluntary or involuntary, and nothing in either
her interview summary or Kingsmore’s internal job application
addresses this point.30 Kingsmore’s ability to access the BMW
plant was never mentioned. Kingsmore did not receive the
promotion.
Becksted testified as follows. In early February, Evola
called her into his office and stated that he had just learned that
Kingsmore was banned from BMW. Becksted was startled
because she believed that Kingsmore had told her in the inter-
view that he left BMW voluntarily, and she found it incon-
sistent that someone could both leave BMW voluntarily and be
banned from the plant. She was also concerned because Ges-
tamp employees need to be able to go to BMW, as Gestamp’s
only client. She expressed those concerns to Evola, who in-
structed her to investigate fully the reasons why Kingsmore left
BMW and why he was banned from their premises. Next, she
called Keller, who was in Germany. He told her that
Kingsmore advised him of the ban in August 2009. Becksted
then returned to Evola, described her conversation with Keller,
and said that she planned to call Kingsmore into a meeting to
ask him face-to-face whether or not he had left BMW volun-
tarily and whether or not he was in fact banned.
On February 17, Becksted met with Kingsmore and Weck-
erman in the latter’s office. Weckerman played no role in the
decision to suspend Kingsmore. In that meeting, Kingsmore
stated that he left BMW on a voluntary basis because of the
long drive and his desire to spend more time with his family.
When Becksted said that she learned Kingsmore was barred
from BMW, he did not deny it. She stated that she would need
additional information about why he was banned from BMW’s
premises and asked him to sign a release form authorizing her
to get information directly from BMW.31 Kingsmore hesitated,
stating that he did not understand what the document was. He
asked what would happen if he did not sign, and she replied
that he could be terminated. Kingsmore signed the release and
asked for a copy.
Becksted left to confer with Evola. They agreed that
Kingsmore should not receive a copy of the release because it
was an internal company document. She returned to Wecker-
man’s office and so informed Kingsmore. She told him that he
was suspended with pay, effective immediately, and that during

30 See R. Exh. 14.
31 GC Exh. 4.
his suspension he was not allowed to enter the Respondent’s
premises or communicate with other employees because it
would interfere with the investigation.
Weckerman went with Kingsmore to retrieve his personal
items and then to the front door to exit the facility. At the
breezeway near the exit, they engaged in a brief conversation.
Kingsmore stated that he believed his suspension was due to
the Union. Weckerman replied that he did not know about that.
Kingsmore’s Discharge on February 24
On the day of the suspension, February 17, Becksted sent the
release to BMW, to which she received no response. As a re-
sult, within 2 business days following Kingsmore’s suspension,
she called BMW. A man there stated that he would not give
her any information regarding Kingsmore’s employment at
BMW. By her own admission, the conversation lasted mere
“seconds.”32 Becksted testified, incredibly, that she could not
recall if she made any kind of notation of the phone call, and
she could not provide a specific time and date or the name and
title of this BMW employee.33 If a memorandum was in fact
made, it was not offered in evidence.
Various witnesses of the Respondent testified to the need of
Gestamp employees to visit the BMW plant, the Respondent’s
sole customer at times relevant. They take tours of the BMW
plant and may be required to go there when BMW requests
assistance or when the two on-site Gestamp employees are off.
Becksted testified that quality department supervisors visit the
BMW plant on a regular basis, consistent with Holt’s testimony
that he has gone there three or four times. Regarding what his
reaction would be on learning that an employee was refused
access to the BMW plant, Evola stated, “I’m 100 percent cer-
tain there’s no way as a leader in the company that an associate
could come to me with such dramatic news and me not take any
action whatsoever.”34 However, the Respondent’s counsel
represented that Kingsmore’s inability to enter the BMW plant
per se played no part in his suspension or discharge, and that
“misrepresentation and failure to provide information” were the
sole bases for his discipline.35
On the morning of Monday, February 22, Becksted called
Kingsmore and stated that she had been unable to get any de-
tailed information from BMW on why he had left. She advised
Kingsmore that he was now responsible for getting information
from BMW that would clearly state why, by 5 p.m. on
Wednesday, February 24. Kingsmore replied that he would do
his best. I credit his unrebutted testimony that he denied her
suggestions that he had been fired from BMW.
Kingsmore called BMW HR. Several representatives told
him that BMW would provide only a verification of the dates of
his employment. Upon receiving a letter stating such on Febru-
ary 24, Kingsmore faxed it to Becksted at 3:53 p.m., along with
an explanation that this was the only information he could ob-

32 Tr. 945.
33 More precisely, she professed not to recall if she made any kind of
record thereof (Tr. 936), testimony that is even more incredible and
damaging to her credibility.
34 Tr. 732.
35 Tr. 766.
GESTAMP SOUTH CAROLINA, LLC 1571
tain.36 After receiving the fax that afternoon, Becksted called
Kingsmore. She said that this was not the information she had
requested and that he was terminated.
At trial, I admitted, over the Respondent’s objections, two
documents going to the issue of Kingsmore’s separation from
BMW. The first is General Counsel’s Exhibit 9, on its face a
BMW document dated May 21, 2007 email stating that
Kingsmore voluntarily resigned his employment. The second is
General Counsel’s Exhibit 15, a December 10 email to the Re-
gion from Steve Warren, BMW’s attorney, confirming that a
document of resignation signed by Kingsmore is contained in
BMW’s files. Because neither of these documents were availa-
ble to any of the parties at the time of Kingsmore’s suspension
or termination, they cannot have a bearing on deciding the Re-
spondent’s motivation for those actions. Whether Kingsmore’s
separation from BMW was a resignation, resignation in lieu of
discharge, or a discharge is not an issue before me.
Other Instances of Discipline by the Respondent
The Respondent presented testimony regarding the discharge
of two other employees for first offenses. One was Ron Gist,
who was terminated within a month before trial, for failing to
report a forklift accident in accordance with Gestamp’s acci-
dent policy. Becksted terminated him immediately after she
conducted a full investigation, which found him responsible,
and he admitted culpability. The second was William Gregory,
for sanding words into vehicle sides, considered destruction of
company property. A department supervisor brought the matter
to Becksted’s attention. After an investigation and Gregory’s
admission, Becksted immediately terminated him. The Re-
spondent provided no date for his discharge.
The Respondent also submitted former employee Joseph
Hicks’ timesheet for the week of April 12, and a determination
by the South Carolina Employment Security Commission that
he had been allowed to resign in lieu of discharge.37 However,
the Respondent failed to elicit any testimony regarding the
circumstances of his separation, and Becksted could not say
when it occurred. I am therefore unable to ascertain how simi-
lar or dissimilar his situation was vis-à-vis Alexander’s.
Analysis and Conclusions
The General Counsel alleges that the Respondent discharged
Alexander and suspended and discharged Kingsmore in viola-
tion of Section 8(a)(3) and (1) of the Act.
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 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.
Under the Wright Line framework, if the General Counsel

36 GC Exhs. 5 & 6.
37 R. Exhs. 17 & 18.
makes 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. Once this is established, the burden of persuasion shifts
to the employer to show that it would have taken the same ad-
verse action even in absence of the protected activity. NLRB v.
Transportation Corp., 462 U.S. 393, 399, 403 (1983);
Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002);
Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. 127
F.3d 34 (5th Cir. 1997) (per curiam). To meet this burden, “an
employer cannot simply present a legitimate reason for its ac-
tion but must persuade by a preponderance of the evidence that
the same action would have taken place even in the absence of
the protected conduct.” Serrano Painting, 332 NLRB 1363,
1366 (2000), citing Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, 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 rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. On the other hand, further analysis is
required if the defense is one of “dual motivation,” that is, 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 212, 223 (D.C. Cir. 2005).
The initial question is whether Alexander’s and Kingsmore’s
actions qualify as protected, concerted activity under Section 7
of the Act. I find that the General Counsel has established this
element inasmuch as Alexander and Kingsmore actively partic-
ipated in a union–organizing campaign. More specifically,
Kingsmore initiated contact with the Union, he and Alexander
were on the organizing committee that Rigsby formed, and they
attended several union-sponsored meetings for employees at
which Alexander was vocal. In addition, both solicited support
for the Union from other employees after work, on breaks, and
during and after lunch times.
Secondly, I conclude that Respondent knew of their union
activities—several members of management/supervision had
direct knowledge, as follows. Alexander communicated to
Supervisor Morris that “his coworkers were harassing him
about this ‘union stuff,’” and Supervisor Fink stated that he had
heard of Alexander’s involvement in seeking to bring in the
Union. Kingsmore told Supervisors Fink and Sullivan that he
was trying to get the Union in.
It is well established that a supervisor’s knowledge of union
activities is imputed to the employer unless credited testimony
establishes the contrary. State Plaza, Inc., 347 NLRB 755,
756–757 (2006); Dobbs International Services, 335 NLRB
972, 973 (2001); Dr. Phillip Megdal, D.D.S., Inc., 267 NLRB
82, 82 (1983).
The Respondent chose not to have Evola testify as to wheth-
er he had knowledge of Alexander or Kingsmore’s union activi-
ty at the time of their suspension/terminations, so there is no
credited testimony denying that Morris, Sullivan, or Fink
transmitted their knowledge to Evola. He did testify that he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1572
believed Kingsmore when Kingsmore called and assured him
that rumors of Kingsmore’s union activity were untrue.38
However, even if so, this was not tantamount to testimony that
he had no knowledge of Kingsmore’s union activities at the
time Kingsmore was suspended and then discharged. I further
note Evola’s testimony that at the time of this conversation, he
had not heard any rumors about Kingsmore trying to bring in
the Union, “other than discussions with my attorneys.”
The Respondent argues (R. Br. at 22) that none of the “deci-
sionmaking supervisors” involved in the decision to discharge
Alexander or the decisions to suspend and discharge
Kingsmore were aware of either’s union activities, and (R. Br.
at 28) that Becksted made the decisions.
True, the record remains unclear on who made the decisions,
but this is because Evola did not testify whether he did or did
not play a role therein and, contrary to the Respondent’s con-
tention, Becksted did not specifically testify that she made them
or who else did. Inasmuch as Becksted admittedly consulted
with Evola on whether to investigate Kingsmore and, later,
whether she should give Kingsmore a copy of the release he
signed, I must doubt whether she would have not also have
consulted with him about the far more drastic measure of dis-
charging employees. Ultimately, the Respondent bears the
responsibility for the insufficiency of the record evidence on
who made the decisions, and I will not reward the Respondent
with any favorable inferences.
Assuming arguendo that I accepted the Respondent’s argu-
ment that supervisors’ knowledge should not be imputed to
Gestamp’s management, the element of knowledge can be sat-
isfied by reasonable inference. Windsor Convalescent Center
of North Long Beach, 351 NLRB 975, 983 fn. 36 (2007), enfd.
in relevant part 570 F.3d 354 (D.C. Cir. 2009). See also Active
Transportation, 296 NLRB 431, 431–432 (1989), enfd. 924
F.2d 1057 (6th Cir. 1991) (knowledge inferred where, inter alia,
three of four discharged employees engaged in union activities
in the presence of employee who was an informer for the em-
ployer); Clark & Wilkins Industries, 290 NLRB 106, 106
(1988), enfd. 887 F.2d 308 (D.C. Cir. 1989), cert. denied 495
U.S. 934 (1990) (imputing supervisor’s knowledge to employer
where supervisor observed organizing campaign in small shop).
Here, the union campaign clearly created a highly-charged
atmosphere that engendered widespread sentiments among
employees, both for and against the Union. This is best reflect-
ed in the threat of physical violence that an employee made
against union supporters at a management–conducted meeting,
and the accusations that three employees leveled against Alex-
ander. In these circumstances, it is reasonable to believe that
other employees reported Alexander’s and Kingsmore’s union
activities to management.
The General Counsel’s final burden under Wright Line is to
show that the Respondent harbored antiunion animus and took
discriminatory action because of this animus.
The only direct evidence of animus is Supervisor Fink’s
warning to Kingsmore that, “You’re gone” if Evola found out
that he was trying to unionize the plant. Nevertheless, infer-
ences of animus and discriminatory motivation can be warrant-

38 Tr. 735.
ed under all the circumstances of a case, even in the absence of
direct evidence. Fluor Daniel, Inc., 304 NLRB 970, 970
(1991), enfd. 976 F.2d 744 (11th Cir. 1992); Electronic Data
Systems Corp., 305 NLRB 219, 219 (1991), enfd. in relevant
part 985 F.2d 801, 805 (5th Cir. 1993).
The timing of the Respondent’s actions raises a bright red
flag, especially as to Kingsmore. Evola and Supervisors Keller,
Morris, and Zimmerman all knew in August 2009 that he was
barred from entering BMW’s plant, but no one from manage-
ment or supervision again mentioned the subject to Kingsmore
until his suspension meeting with Becksted on February 17.
Thus, the Respondent had knowledge of Kingsmore’s ban from
entering BMW’s plant for over 6 months yet took no action
whatsoever until only weeks after he first engaged in union
activities. Alexander, too, was discharged just weeks after he
began engaging in union activities. Adverse action occurring
shortly after an employee has engaged in protected activity
raises an inference of unlawful motive. State Plaza, Inc., above
at 756; La Gloria Oil & Gas Co., 337 NLRB 1120 (2002),
enfd. 71 Fed. Appx. 441 (5th Cir. 2003).
So does the severity of the discipline that the Respondent
imposed in proportion to the offenses. See Detroit Paneling
Systems, 330 NLRB 1170, 1170 (2000); KNTV, 319 NLRB
447, 452 (1995). Alexander and Kingsmore were the first in-
stances of the Respondent immediately discharging an employ-
ee for alleged timesheet falsification or the falsification of prior
work history.
The Respondent represents Gist and Gregory as other em-
ployees terminated for first offenses in similar circumstances
(R. Br. at 27–28). However, those situations were distinguish-
able in that they involved physical damage to company proper-
ty: Gist was terminated for failing to report a forklift accident
and Gregory for deliberately vandalizing a vehicle. In contrast,
Alexander’s timesheet discrepancy and anything that
Kingsmore said in the interview for a supervisory position re-
sulted in no harm to the Respondent whatsoever. Thus, Alex-
ander’s error was caught prior to his pay being submitted to
payroll, and he received only the remuneration to which he was
entitled for the day in question. Even crediting Becksted,
Kingsmore’s reason for leaving BMW came up as an issue only
as a result of his interview for a promotion that he did not re-
ceive. I again note the Respondent’s counsel’s representation
that the Respondent discharged Kingsmore solely for misrepre-
sentation and failure to provide information, not because he
was barred from BMW. Additionally, both Gist and Gregory
admitted to the misconduct, a factor not present here. Signifi-
cantly, the Respondent did not have affirmative evidence that
either Alexander deliberately falsified his timecard or
Kingsmore his employment history but instead chose to paint
their conduct in the worst light possible.
This brings up another factor that leads to the inference of
animus and constitutes evidence of discriminatory intent
against Alexander and Kingsmore: the Respondent’s failure to
conduct full and fair investigations. See Hewlett Packard Co.,
341 NLRB 492, 492 fn. 2 (2004); Firestone Textile Co., 203
NLRB 89, 95 (1973).
Becksted never spoke to Alexander at all prior to his dis-
charge. By her own testimony, she simply looked at the pa-
GESTAMP SOUTH CAROLINA, LLC 1573
perwork, decided that Alexander had deliberately lied on his
timesheet, and terminated him. Both employees and manage-
ment were well aware that an electronic system was in place to
monitor attendance, and that supervisors compared self–
prepared and electronic records, yet Becksted presumably con-
cluded that Alexander deliberately sought to cheat the Re-
spondent out of 38 minutes of work time without first inquiring
as to whether he had an alternate explanation for the discrepan-
cy. The Respondent’s willingness to discharge Alexander
without even interviewing him or affording him an opportunity
to defend against the serious accusation of deliberate falsifica-
tion is evidence that the Respondent’s true motivation was Al-
exander’s protected activities. See Joseph Chevrolet, Inc., 343
NLRB 7, 8 (2004); Tubular Corp. of America, 347 NLRB 99,
99 (2001).
Turning to Kingsmore, Becksted, an experienced and trained
HR manager, allegedly could not recall if she even documented
the conversation she had with a BMW HR representative con-
cerning Kingsmore’s employment, and the Respondent pro-
duced nothing that memorialized it. This, along with her ap-
parent satisfaction with a conversation that lasted mere seconds,
strongly suggests that her investigation lacked diligence and a
genuine desire to ascertain the truth. This conclusion is bol-
stered by the very short timeframe that she gave Kingsmore to
obtain documentary evidence of his separation from BMW, and
the absence of any showing of why the Respondent needed it so
immediately.
Still another basis for inferring animus is that the Respondent
discharged Alexander and Kingsmore, rather than imposing
lesser penalties as per the Respondent’s progressive discipline
system. An employer’s failure to follow such a system is fre-
quently indicative of a hidden motive for the imposition of
more severe discipline. Fayette Cotton Mill, 245 NLRB 428
(1978); Keller Mfg. Co., 237 NLRB 713, 713–714 (1978). This
proposition appears particularly apropos to the instant matter
because both were employees of long tenure, Alexander had
never previously been disciplined for any reason, and the Re-
spondent relied on nothing in Kingsmore’s prior disciplinary
record in making the decision to terminate him.
Finally, animus can be inferred from the Respondent’s shift-
ing rationales for disciplining Kingsmore. Becksted testified
that Evola asked her to investigate both why Kingsmore left
BMW and why he was banned from entering BMW’s premises.
However, the Respondent provided no evidence that it ever
specifically asked Kingsmore why he was not allowed into
BMW’s plant, or attempted to obtain such information from
BMW. In Kingsmore’s employee separation checklist, three
reasons are stated for his termination: “Falsification of prior
work history, not supplying proper documentation from prior
employer as requested and not supplying information for reason
of BMW’s refusal to allow employee on property.”39 Although
the Respondent elicited considerable testimony on the im-
portance of an employee’s need for entry into the BMW plant,
the Respondent’s counsel expressly represented that
Kingsmore’s bar from entering BMW was not one of the rea-
sons for his discharge.

39 GC Exh. 7.
Such shifting of rationales is evidence that the Respondent’s
proffered reasons for discharging Kingsmore are pretextual.
See Approved Electric Corp., 356 NLRB 238 (2010) (citing
City Stationery, Inc., 340 NLRB 523, 524 (2003) (nondiscrimi-
natory reasons for discharge offered at the hearing were found
to be pretextual where different from those set forth in the dis-
charge letters); GATX Logistics, Inc., 323 NLRB 328, 335
(1997) (“Where . . . an employer provides inconsistent or shift-
ing reasons for its actions, a reasonable inference can be drawn
that the reasons proffered are mere pretexts designed to mask
an unlawful motive.”).
Considering all of the above factors, I conclude that the Gen-
eral Counsel has established the last elements, of animus and of
actions based thereon, and thus has met his initial burden of
persuasion under Wright Line.
I now turn to the Respondent’s burden under Wright Line to
show that it would have taken the same action in the absence of
that protected activity. The Respondent has represented that
Alexander’s timesheet falsification was the sole reason for his
discharge and that Kingsmore’s misrepresentation and failure to
provide information of prior work history were the sole bases
for his suspension and discharge. Based on the same factors
that have led me to find inferred animus, I conclude that these
proffered reasons were mere pretexts and that antiunion animus
motivated the Respondent’s actions. Accordingly, no further
analysis of the Respondent’s defenses is necessary for, as the
Board stated in Rood Trucking Co., 342 NLRB 895, 898
(2004):

A finding of pretext defeats any attempt by the Respondent to
show that it would have discharged the discriminatees absent
their union activities. This is because where ‘the evidence es-
tablishes that the reasons given for the Respondent’s actions
are pretextual—that is, either false or not in fact relied upon—
the Respondent fails by definition to show that it would have
taken the same action for those reasons, absent the protected
conduct, and thus there is no need to perform the second part
of the Wright Line analysis.” Golden State Foods Corp., 340
NLRB 382, 385 (2003). . . .

See also SPO Good-Nite Inn, LLC, above.
Accordingly, I conclude that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discharging Alexander and by
suspending and then discharging Kingsmore.
Alleged 8(a)(1) Violations
A statement from an employer is an unlawful threat under
Section 8(a)(1) if it interferes with, restrains, or coerces em-
ployees in the exercise of their Section 7 rights. 29 U.S.C. Sec-
tion 158(a).
The General Counsel contends that the Respondent violated
Section 8(a)(1) in about early February, when Supervisor Fink
unlawfully threatened Kingsmore with discharge for his union
activities, and separately on February 11, when Fink unlawfully
interrogated Alexander concerning his union activities.
In approximately early February, Kingsmore told Fink that
he was going to try to unionize the plant and Fink warned him
to be careful because if Evola found out, “You’re gone.”
Clearly, Kingsmore initiated the conversation and viewed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1574
Fink as a confidant due to Fink’s role in protecting him from
Keller’s aggressiveness. Nevertheless, the level of trust be-
tween them is not pivotal in assessing Fink’s statement. Ra-
ther, “[T]he Board does not consider subjective reactions, but
rather whether, under all the circumstances, a respondent’s
remarks reasonably tended to restrain, coerce, or interfere with
employees’ rights guaranteed under the Act.” Sage Dining
Service, 312 NLRB 845, 846 (1993). Fink’s statement reason-
ably conveyed the message that Kingsmore’s protected activi-
ties might harm his employment and thus reasonably could
have caused Kingsmore to fear reprisals for engaging in pro-
tected activities.
The Respondent references (R. Br. at 41) Rogers Electric,
Inc., 346 NLRB 508, 509 (2006), in arguing that Fink’s state-
ment was merely a matter of opinion and therefore protected by
the free speech provisions of Section 8(c) as an “intemperate
expression of personal opinion.” Such an argument mischarac-
terizes the type of expressions to which the Rogers Electric
holding applies. Under that decision and related precedent,
Section 8(c) protects as free speech an employer’s and its
agents’ flip and intemperate statements disparaging a union as
futile, violent, or of other impugned character. See, e.g., Chil-
dren’s Center for Behavioral Development, 347 NLRB 35, 35
(2006) (if unaccompanied by threats or promises of benefit,
employer may “criticize, disparage, or denigrate a union”);
Miller Industries Towing Equipment, Inc., 342 NLRB 1074,
1076 (2004) (employer may offer his “perspective” against
union so long as it is not accompanied by threats). In contrast,
Fink’s statement predicted retaliation against Kingsmore if
management learned of his protected activities. Thus, the Rog-
ers Electric holding is inapposite.
Accordingly, I conclude that Fink’s statement was an unlaw-
ful threat within the meaning of Section 8(a)(1).
On February 11, Fink approached Alexander in the tool crib
and made the comment, “I didn’t know you were one of the
ones who’s trying to bring the Union in.” Asking an employee
about his or her knowledge of union activities may, depending
on the totality of the circumstances, reasonably tend to interfere
with, restrain, or coerce employees in the exercise of Section 7
rights. Blue Flash Express, 109 NLRB 591, 592–595 (1954);
see also Michigan Roads Maintenance Co., 344 NLRB 617
(2005), citing Donaldson Brothers Ready Mix, 341 NLRB 958,
959 (2004). Circumstances considered in evaluating the ten-
dency to interfere include the (1) background, (2) the nature of
the information sought, (3) the identity of the questioner, and
(4) the place and method of the interrogation. Sunnyvale Medi-
cal Clinic, 277 NLRB 1217, 1218 (1985); Rossmore House,
269 NLRB 1176, 1178 fn. 20 (1984).
Both Fink and Kingsmore testified to Fink’s role in the
workplace as something of a mediator between rank-and-file
employees and their foreign speaking managers, in that em-
ployees confided to Fink that they were being mistreated. Alt-
hough a supervisor, Fink was not a senior manager within the
company hierarchy, and his supervisory authority was limited
to off-site employees. As such, his position and reputation
within the organization did not tend be specially coercive or
threatening.
Rather than single Alexander out or call him to a manage-
ment office, Fink spoke at Alexander’s workstation and in the
presence of another employee. Fink made but a single state-
ment and did not pursue the issue when Alexander did not re-
spond. His words contained no implication that employees
would be adversely affected for their support of the Union, and
they were presented as a declaration of fact rather than posed as
a question.
In the totality of circumstances, I conclude that Fink’s state-
ment regarding Alexander’s union activities did not amount to
coercive interrogation or otherwise reasonably tend to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. Accordingly, I find no merit to this allegation.
General Counsel’s Motion to Amend Complaint
The General Counsel (GC Br. at 11) moves to amend the
complaint to add the allegation that on February 17, Wecker-
man unlawfully threatened Kingsmore in violation of Section
8(a)(1). The motion is moot in light of my credibility resolu-
tion favoring Weckerman’s version of what he said over
Kingsmore’s account, with the resulting finding that Wecker-
man said nothing about the Union to Kingsmore that day. Ac-
cordingly, I need not address the question of whether Section
10(b) bars such an amendment as untimely.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Reggie Alexander and by suspending and
discharging David Kingsmore, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(3)
and (1) of the Act.
3. By threatening an employee with discharge for engaging
in activities on behalf of the United Steelworkers, the Respond-
ent has engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act and vio-
lated Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged employ-
ees, it must offer them reinstatement and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest compound-
ed daily, Kentucky River Medical Center, 356 NLRB 6 (2010),
with an applicable rate of interest as computed in New Hori-
zons, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended40

40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
GESTAMP SOUTH CAROLINA, LLC 1575
ORDER
The Respondent, Gestamp South Carolina, LLC, Union,
South Carolina, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminating
against any employee for engaging in activities on behalf of the
United Steelworkers (the Union) or any other labor organiza-
tion.
(b) Threatening any employee with discharge or any other
adverse action for engaging in activities on behalf of the Union
or any other labor organization.
(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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Reggie Alexander and David Kingsmore full reinstatement to
their former jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.
(b) Make Reggie Alexander and David Kingsmore whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Reggie Alexander, and 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.
(d) Within 14 days from the date of the Board’s Order, re-
move from its files any references to the unlawful suspension
and discharge of David Kingsmore, and within 3 days thereaf-
ter notify him in writing that this has been done and that the
suspension and discharge will not be used against him in any
way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional 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 rec-
ords, 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.
(f) Within 14 days after service by the Region, post at its fa-
cility in Union, South Carolina, copies of the attached notice
marked “Appendix.”41 Copies of the notice, on forms provided
by the Regional Director for Region 11, after being signed by
the Respondent’s authorized representative, shall be posted by

ed by the Board and all objections to them shall be deemed waived for
all purposes.
41 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent and maintained for 60 consecutive days in con-
spicuous 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 employ-
ees employed by the Respondent at any time since February 1,
2010.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT suspend, discharge, or otherwise discriminate
against you because you engage in activities in support of the
United Steelworkers (the Union) or any other labor organiza-
tion.
WE WILL NOT threaten you with discharge or any other ad-
verse action because you engage in activities in support of the
Union or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order,
offer Reggie Alexander and David Kingsmore full reinstate-
ment to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make Reggie Alexander and David Kingsmore
whole for any loss of earnings and other benefits suffered as a
result of our discrimination against them, in the manner set
forth in the remedy section of the decision.
WE WILL remove from our files any reference to our unlawful
discharge of Reggie Alexander, and within 3 days thereafter
notify him in writing that this has been done and that the dis-
charge will not be used against him in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1576
WE WILL remove from our files any reference to our unlawful
suspension and discharge of David Kingsmore, and within 3
days thereafter notify him in writing that this has been done and
the suspension and discharge will not be used against him in
any way.
GESTAMP SOUTH CAROLINA, LLC