Hearthside Food Solutions

National Labor Relations Board - Administrative Judge Opinions

Mar 1, 2012

09-CA-046342 (N.L.R.B. Mar. 1, 2012)

JD–06—12
London, Kentucky
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
HEARTHSIDE FOOD SOLUTIONS, LLC
Cases: 9-CA-46342
and 9-CA-60058
9-CA-60071
9-CA-60361
BAKERY, CONFECTIONARY, TOBACCO 9-RC-18351
WORKERS AND GRAIN MILLERS INTERNATIONAL
UNION, LOCAL 280, AFL-CIO-CLC
Eric V. Oliver, Esq., and Linda B. Finch, Esq.,
for the Acting General Counsel.1
Robert W. Stewart, Esq., and John P. Hasman, Esq.,
of St. Louis, Missouri, for the Respondent/Employer.
Dennis Howard, Sr., of Evansville, Indiana, for the
Charging Party/Petitioner.
DECISION
Statement of the Case
PAUL BUXBAUM, Administrative Law Judge. This case was tried in Somerset,
Kentucky, on November 1 through 4, 2011, and in London, Kentucky, on November 7, 2011.2
As to the unfair labor practice portion of this consolidated proceeding, the initial charge was filed
March 30, a second charge was filed April 29,3 followed by a third charge filed May 3, and a
fourth on June 16. The Regional Director issued the original order consolidating cases,
consolidated complaint, and notice of hearing on August 31. An amended consolidated
complaint followed on October 6.
These unfair labor practice issues are consolidated with a representation issue. On
March 25, Petitioner filed a petition for a representation election among a unit of the Employer’s
workers. On May 5, the Regional Director issued a decision and direction of election. The
election was held on June 2 and 3. On June 8, Petitioner filed objections to the Employer’s
conduct affecting that election. The Regional Director issued a report on objections, order
directing hearing, order consolidating cases, and order transferring case to the Board on

1 For simplicity, I will refer to the Acting General Counsel as the General Counsel throughout
the remainder of this decision.
2 All dates are in 2011 unless otherwise indicated.
3 This charge was amended on September 19 and October 4.
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October 11. This was amended on October 13.
In the unfair labor practice case, the General Counsel’s amended consolidated
complaint alleges that the Employer unlawfully interrogated an employee, threatened an
employee, solicited and encouraged employees to circulate an antiunion petition, and
repeatedly made implied promises to correct employees’ grievances. These acts are alleged to
have violated Section 8(a)(1) of the Act. In addition, the complaint alleges that the Employer
subjected three of its employees, Audia Collins, Roderic Collins, and Peggy Jackson, to
unlawful discrimination by discharging them from its employ in violation of Section 8(a)(3) and
(1). The Employer filed an answer to the amended consolidated complaint denying all of the
material allegations.4
As to the representation matter, the Petitioner originally filed 11 objections to the
Employer’s conduct during the critical period preceding the election. As stated in the Regional
Director’s report on the objections, the Petitioner subsequently withdrew Objections 2, 3, 4, 5, 7,
8, 10, and 11. (GC Exh. 1(r), at fn. 2.) However, in his amended report, the Regional Director
noted that other conduct alleged in the amended consolidated complaint to constitute unfair
labor practices, if substantiated, could provide additional grounds for setting aside the results of
the election. Specifically, the alleged additional misconduct consisted of three implied promises
to correct employees’ grievances. (GC Exh. 1(t), p. 3.) As a result, I will evaluate the merits of
Objections 1, 6, and 9, plus the additional conduct referenced by the Regional Director. As a
practical matter, I note that all of the conduct alleged to be objectionable is also alleged to
constitute unfair labor practices. As previously indicated, the Employer has denied all of these
allegations.
For reasons that will be discussed in detail in the remainder of this decision, I have
concluded that the General Counsel has failed to meet his burden of proving that the Employer
engaged in the conduct alleged to constitute unfair labor practices. It follows that the Petitioner
has also failed to demonstrate that the Employer engaged in objectionable conduct that could
have affected the election results. In light of these conclusions, I will recommend that the
amended consolidated complaint be dismissed, that the objections be overruled, and the results
of the election be certified.
On the entire record,5 including my observation of the demeanor of the witnesses, and

4 In its answer, the Employer also raised a procedural defense contending that the General
Counsel was acting in an improper fashion as he had elected to file this complaint while other
pending charges remained unresolved, thereby subjecting the Employer to “unwarranted and
impermissible piecemeal litigation,” in violation of the Board’s standards expressed in Jefferson
Chemical, 200 NLRB 992 (1972). (GC Exh. 1(v), p. 3.) At the outset of the trial, I raised this
matter with the parties, noting that I had considered this defense and concluded that it was
premature. Any appropriate relief should be addressed in the event that the General Counsel
proceeds to complaint as to those unresolved pending charges. (Tr. 14-16.)
5 It is necessary to mention several issues related to the state of the record. While the
transcript is generally accurate, a few corrections are necessary. At Tr. 642, l. 7, “horrible”
should be “portable;” at Tr. 809, l. 2, “impasse” should be “impact;” and at Tr. 1072, l. 2, the
phrase “your representation is evidence” should be “your representation is not evidence.”
Finally, at Tr. 676, ll. 2-3, the testimony is garbled and I do not recall its actual content. All other
errors of transcription are not significant or material. As to the documentary evidence, R. Exh.
38, p. 29 was mistakenly included in the exhibit file. This page was not admitted into the record
and has not been considered in evaluating the evidence. See, Tr. 1073—1074. Lastly, I have
Continued
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after considering the briefs filed by the General Counsel and the Employer, I make the following
Findings of Fact
I. Jurisdiction
The Employer, a limited liability corporation, manufactures cookies, crackers, and other
baked goods at its facility in London, Kentucky, where it annually sells and ships from its
London, Kentucky, facility goods valued in excess of $50,000 directly to points outside the
Commonwealth of Kentucky. The Employer admits6 and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
All of the controversies in this case arose in the context of the Union’s organizing
campaign at the Employer’s London plant. On May 10, 2010, the Employer acquired that facility
through an asset purchase from the Consolidated Biscuit Company. The factory occupies a
large building comprising approximately 265,000 square feet. It employs approximately 700
people who prepare the Company’s products. Those products are marketed under the brands
of other companies and include such well-known foods as Oreo cookies and granola bars.
Prior to the events about to be recounted, the workforce was not represented by any
labor organization. In January, an employee telephoned Dennis Howard, Sr., business agent
for the Union, in order to seek his assistance in obtaining representation. Howard began an
organizing campaign, conducting an initial union meeting at a local Hampton Inn on February 3.
Approximately 15 to 18 employees attended.
Among those attending this meeting was Roderic Collins, a machine operator who has
been employed by the Company since January 2009.7 He signed an authorization card and
became active in the campaign. Among his union activities were the solicitation of signatures
on authorization cards, handbilling, and talking to fellow employees about the Union.
At an early stage, the Union’s effort became known to the Employer. This was
manifested through a letter written on the same date as the initial union meeting. It was
authored by Doug Sherman, the Employer’s vice president for manufacturing, and was
addressed to the workforce. Sherman advised that he was “committed to keeping outsiders like
this union from . . . interfering with your job, your job security, our customers and our culture.”
(GC Exh. 3.) He concluded the letter by suggesting to the employees that they treat the Union’s
_________________________
taken the liberty of redacting social security numbers that appeared at GC Exh. 9, pp. 1, 2, 9,
and 21; R. Exh. 6, pp. 1, 8, and 9; and R. Exh. 24, p. 6. To the extent that other copies of the
exhibit files are extant as public records, I direct the Board’s staff to make the same redactions.
6 In its answer to the consolidated amended complaint, the Employer admitted the
jurisdictional allegations. See GC Exh. 1(v), pars. 2 and 3.
7 Roderic Collins’ brother, Audia Collins, was also employed by the Company. He was hired
in 1999 and had been a line mechanic for approximately 4 to 5 years. Both brothers figure
prominently in this case as alleged discriminatees. For ease of reference and clarity, I will refer
to them by their first names. No disrespect is intended.
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authorization cards like “junk mail.” (GC Exh. 3.)
As the Union’s effort progressed, two other employees with significance to this case
signed authorization cards. On February 26, Peggy Jackson, a machine operator hired in 1998,
signed her card. On March 2, Audia signed his card, joining his brother in the organizing drive.
At this juncture, it is necessary to interrupt the chronological discussion of the Union’s
campaign to describe a different set of events related to the Collins brothers. On March 14, a
relative of theirs, Jimmy Napier, passed away. Shortly thereafter, each of the brothers informed
his respective supervisor that they had a death in the family and would be requesting funeral
leave once the arrangements had been finalized.
This Employer has a detailed and well-defined funeral leave policy. It is contained in the
employee handbook. The description of this policy begins with the Employer’s statement of
recognition that “it is a difficult time when a member of one’s immediate family passes away.”
(GC Exh. 6, p. 23.) In order to “help you through this period,” the Company offers a funeral
leave benefit that varies based on the degree of relationship between the employee or his or her
spouse and the decedent. For persons in the closest degree of relationship, the benefit consists
of 3 days of paid leave.8 For those in a lesser degree of familial proximity, the benefit provides
for 2 days of paid leave. Specifically, that level of benefit is provided for the loss “of the
employee or spouse’s niece, nephew, aunt or uncle.” (GC Exh. 6, p. 24.) Finally, the policy
permits an employee to apply for 1 day of unpaid leave to attend the funeral of a person who is
not related to the employee in the degree necessary to qualify for a paid funeral leave.
The funeral leave policy advises that, “the employee must provide verification of the
absence to the Human Resources Department.” (GC Exh. 6, p. 24.) In order to facilitate the
verification process, the Employer issues a form entitled, Certification of Attendance at Funeral
Service.9 In order to complete this form, it is necessary to provide details about the location and
time of the funeral. It is also necessary to obtain a certification from the funeral provider that the
named employee attended the funeral. That certification also demands a statement as to the
relationship between the employee and the decedent. Once an employee has attended the
funeral, he or she presents the completed Certification of Attendance form to the human
resources department which issues the paperwork required to document the excused absence
from work and, if appropriate, authorization to receive funeral pay. Finally, it should be noted
that the employee handbook warns employees that, “[f]alsifying information regarding the terms
or conditions of a leave of absence . . . [is] grounds for immediate discharge.” (GC Exh. 6, p.
19.)
Although their testimony on the point was inconsistent, it is clear that both of the Collins
brothers obtained the necessary funeral leave certification forms. Roderic testified that he
obtained his form from either Renata Osborne, the employee and community relations
supervisor, or Nelson Griffin, at that time the employee and community relations manager.
While he indicated uncertainty, he thought he had gotten the form from Osborne. However, in
his pretrial affidavit, he had reported receiving the form from Griffin. On the other hand, his
brother testified that he obtained two copies of the form from Osborne, telling her that, “I had an

8 The policy specifies that the actual amount of paid leave may vary depending on the
employee’s work schedule. For example, if the funeral occurs on a day that the employee was
not otherwise scheduled to work, no compensation for that day is provided.
9 As Roderic explained, “that’s what they use to know . . . whether to pay you or not.” (Tr.
65.)
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uncle passed away and that I needed some—two forms for funeral leave for me and my
brother.” (Tr. 231.) In any event, it is clear that the brothers did obtain the required forms.
Jimmy Napier’s visitation took place at the funeral home on March 17 and his funeral
was on the following day. Roderic testified that he took his Certification of Attendance to the
funeral home and obtained the director’s signature. He also “filled in my parts on the form
where I needed to.” (Tr. 65.) This included the statement that Napier was his “uncle.” (Tr. 66.)
His brother, Audia, provided similar testimony, indicating that he gave the funeral director the
information required to complete the certification.
Once again, the brothers provided conflicting testimony as to how the certifications were
submitted to their employer. Roderic contended that he returned his form to the human
resources department. On the other hand, Audia testified that he submitted both his own form
and Roderic’s to human resources. In any event, there is no doubt that the Employer received
both certification forms and that the forms claimed paid funeral leave arising from Napier’s
death. It is also undisputed that both certifications stated that Napier was the uncle of the
Collins brothers. (See, GC Exhs. 7 and 13.) On receipt of these certifications, the Company
granted 2 days of paid funeral leave to Audia and a day of paid funeral leave to Roderic.10
Resuming the narrative regarding the organizing campaign, it should be noted that
among those employees active in the organizing effort was Jamie Gibson, a skid loader
operator who has worked at the London facility for approximately 4 years. In his testimony,
Gibson agreed with counsel for the Employer’s characterization of his role as being “one of the
main primary union organizers . . . from day one.” (Tr. 746-747.) He also agreed that he “made
absolutely no attempt to hide” his involvement. (Tr. 747.)
On March 17, Gibson was involved in a conversation with Tim Merritt, a production
supervisor who has been employed by the Company for 12 years. He testified that Merritt
approached him and asked, “I heard that you was a union steward.” (Tr. 729.) Gibson denied
this, explaining that this was impossible because, “we have no union in the plant.” (Tr. 729.)
Merritt then asserted that he had prior work experience involving a union and that unions were
“no good.” (Tr. 729.) He asked Gibson why he wanted a union. Gibson explained that he was
dissatisfied with the Company’s health insurance benefit and attendance policies. After that, the
conversation ended.
Three days after Napier’s funeral, on March 22, Osborne engaged in a conversation that
was to have far reaching consequences in this litigation. Osborne testified that she was in
Robin Baker’s office on this occasion. Baker is employed as a food safety coordinator, a
bargaining unit position. It is undisputed that Baker is a cousin to the Collins brothers and was
also a cousin of Napier.
Osborne indicated that the purpose of her meeting with Baker was to discuss routine
attendance documentation issues regarding some sanitation employees. After transacting this
business, Osborne testified:
I was actually on my way out of her office, when I remembered seeing
funeral papers for Roderic and Audia Collins. Knowing that they were

10 Roderic did not receive a second day of paid funeral leave because he had not been
scheduled to work on that date. This conformed to the terms of the funeral leave policy as
described in the employee handbook.
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related, I asked Ms. Baker how is your aunt doing? At that time, Ms.
Baker said, I’m not sure what you’re talking about. And I said, well, for
the—your Uncle Jimmy Napier. And she says that’s not my uncle, that’s
my cousin. She said did Roderic and Audia turn in funeral paper for
Jimmy Napier? I said yes. She said, did they list him as an uncle? I
said yes. She says that is not their uncle, this is their cousin, just like
it’s my cousin.
(Tr. 1316.)
Significantly, Baker also testified in detail regarding this event. Her testimony mirrored
Osborne’s account.11 Thus, Baker reported that Osborne:
asked me one day how my aunt was doing. And I said which aunt would
that be, because I have several aunts. And she said, did you have an
uncle that passed away? And I said no. I said, are you talking about
Jimmy? Because that was the last person that we had pass away in our—
in our family. And she said yeah. I said that’s not my uncle.
(Tr. 1086-1087.) Baker added that she asked Osborne if the Collins brothers had gone to the
funeral.12 Osborne told her that they had. Baker then stated, “that’s not their uncle either.” (Tr.
1087.) After learning this information regarding Napier, Osborne immediately reported it to her
superior, Griffin.
March 24 marked a significant date in the organizing drive. Howard held the last in a
series of union meetings at the Hampton Inn. Approximately 40 employees attended and
delivered authorization cards to him. He reported that with these additions, the Union now had
the “magic number” of cards to enable the filing of a petition for a representation election. (Tr.
552.) To mark the occasion, the attendees at the meeting posed for a group photo. On the next
day, Howard delivered the authorization cards and the Union’s petition for an election to the
Board’s Regional Office in Cincinnati, Ohio.
On the following day, Griffin first raised the topic of the funeral leave with Roderic.13 The
discussion took place in his office and Roderic’s shift manager, Charlene Thompson, was also
present. Griffin testified that he asked Roderic, “what relation the person was to him that he
took the funeral leave for. He said it was his uncle.” (Tr. 1194.) Griffin then told Roderic that, “it

11 In addition, Roderic testified that Baker gave an identical account to an assembly of family
members on October 31. The evidence from all quarters is consistent in demonstrating that
Osborne stumbled onto the information from Baker showing that the brothers had attended a
funeral for a cousin, not an uncle.
12 Audia confirmed that Baker had not attended the funeral.
13 There is a dispute about the date of this interview. Griffin’s testimony that it took place on
March 25 is supported by his contemporaneous written report regarding the meeting. (R. Exh.
47.) In contrast, Roderic contended that the meeting was held on April 13. I find it difficult to
credit that Griffin would have waited so long after learning about the possible abuse of the
funeral leave benefit. Furthermore, Roderic’s account is undercut by his brother’s testimony
that he discussed the issue with Roderic, “by early April, April 1st, April 2nd, April 3rd.” (Tr. 291.)
[Counsel’s words.] In that testimony, Audia also reported that prior to this conversation with his
brother in early April, Roderic had already raised the issue of Napier’s relationship with their
grandmother. All of this supports Griffin’s chronology, which I credit.
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had come to my attention that this person was, in fact, his cousin and not his uncle[.] Was he
sure it was his uncle[?] He said yes.” (Tr. 1194.) Roderic asked Griffin who had reported that
Napier was his cousin and Griffin indicated that he did not respond to the question.
In his own account of his initial meeting with Griffin about the funeral leave issue,
Roderic reported that Griffin told him that “he had gotten word that [Napier] was a cousin of
mine and that they were going to look into it.” (Tr. 75.) By his own account, Roderic reacted
angrily and continued to claim that Napier, “was Uncle Jimmy.” (Tr. 162.) In his trial testimony,
he claimed that he then accused Griffin of conducting this investigation due to his handbilling
activities. This assertion was dramatically undercut by his impeachment with his two prior
affidavits. He was forced to concede that he failed to mention this accusation of unlawful
retaliation in either of those sworn statements. Given that the affidavits were provided to the
Board Agent in the course of an investigation whose entire focus was on whether the Collins
brothers had been fired for union activity, this failure to make such a report in either statement is
compelling impeachment.
After this ominous meeting, Roderic discussed the Napier controversy with family
members, including Audia. In turn, Audia reported that he discussed it with Robert Baker, Robin
Baker’s husband.
Shortly thereafter, the Union published the photograph of its supporters taken at the
March 24 meeting on one of its websites. The accompanying headline read, “HFS/Laurel
Cookies workers in London, KY file a Union Election Petition with NLRB.” (R. Exh. 3, p. 2.)
This publication was fully accessible to all members of the public who had access to the
internet.
As may have been anticipated, publication of the photograph by the Union caused a stir
among the employees and supervisors at the facility. Griffin testified that he was informed
about the photo by a manager at another of the Employer’s facilities on March 28. He accessed
the website and viewed the photo. He testified that this was the first time that he learned of the
Collins brothers support for the Union.14 Similarly, Osborne reported that she also viewed the
photo on this date.
By the same token, other employees accessed the website as well. Lisa Wells, a
machine operator, testified that she obtained a copy of the photo from the internet and prepared
her own caption with an antiunion message and placed copies on the tables in the employees’
break room.15 She testified that there was no involvement by management in her decision to
take this action.

14 On the same day, he received a visit from Baker who told him that Audia had phoned her
over the weekend and wanted to know why she had “ratted him and his brother out.” (Tr. 1208.)
During the conversation, she also confirmed to him that Napier was a cousin to her and to the
Collins brothers. In her own testimony, Baker confirmed that she told Griffin, “[w]e’re all
cousins.” (Tr. 1093.)
15 The documentary evidence contains a photo and caption that would appear to match the
description of the one created and distributed by Wells. That caption poses various questions,
including, “[i]s this who you want representing you? Do you want a handful of people making
your decisions? Are these really your friends?” (R. Exh. 4.) It concludes with an exhortation,
“[s]tand up! We do not want or need a union!!!” (R. Exh. 4.) [Punctuation in the original.
Boldface omitted.] Somewhat oddly, Wells reported that this caption was similar, but not
identical, to the one she drafted.
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Among those who observed the photo was Supervisor Merritt. On approximately March
29, Merritt chose to discuss the photo with several employees. He approached employees
Doris Middleton and Melissa Upchurch on production line 2. Merritt asked both ladies about the
picture. Upchurch testified that Middleton expressed confusion so Upchurch explained to her
that the photo had been taken at a union meeting that she had not attended. Upchurch
responded to Merritt’s comment by confirming her own presence in the photo. Merritt replied by
observing to Upchurch that, “I hope you know what you’re getting yourself into.” (Tr. 708.)
Upchurch merely said, “okay,” and Merritt walked away. (Tr. 709.)
On the same day, Merritt also discussed the photo with Gibson. The two men presented
starkly different versions of their interaction on this date. In his direct testimony, Gibson
presented what appeared to be a straightforward account. He reported that he was on
production line 3 when Merritt approached. He was holding a copy of the photo and said, “nice
picture.” (Tr. 731.) Gibson agreed. At this juncture, Gibson asserted that Merritt told him to go
back to his line. Gibson protested that he was at his line. He then warned Merritt that, “you can
get in trouble for discussing the union to an employee.” (Tr. 731.) Under cross examination,
Gibson changed his account, explaining that Merritt did not tell him to return to his production
line until after Gibson had warned him that, “charges could be filed on him for discussing the
union to an employee.” (Tr. 751.) Gibson also indicated that nobody else was present during
this exchange.
In his own testimony, Merritt confirmed that he viewed the photo and approached Gibson
to tell him that, “Jamie, you look good in that picture.” (Tr. 971.) He reported that another
machine operator, Justin Eversole, was present when he made this statement. He also
indicated that Gibson did not respond to his comment. Merritt flatly denied that he told Gibson
to return to his line. Instead, Merritt testified that he simply left Gibson and Eversole and
“walk[ed] on.” (Tr. 971.) Merritt reported that, about 6 hours later, he observed Gibson to be at
least 50 yards from his assigned work area while wearing an allergen apron. This was in
violation of the plant’s food safety procedures.
Merritt reported that Gibson approached him at this time and warned him that, “he was
going to file harassment . . . charges against me . . . over that picture.” (Tr. 974.) Merritt
testified that he responded by telling Gibson, “Jamie, I wasn’t harassing you over that picture, I
was kidding with you, like we always do.” (Tr. 974.) Gibson refused to drop the matter and,
“kept on and on.” (Tr. 974.) Finally, Merritt instructed him “to go back to your work area. I said
you’re out of your work area with an apron on.” (Tr. 974.) He later recommended to Gibson’s
supervisor that Gibson be disciplined for the food safety violation. That supervisor declined to
follow this recommendation as she had not observed the violation personally.
Counsel for the Employer produced the testimony of Eversole. He confirmed Merritt’s
claim that he was present during the exchange with Gibson. He reported that Merritt told
Gibson, “that he looked awfully good in that picture.” (Tr. 1036.) Gibson did not respond and
Merritt walked on.
In evaluating the conflicts in the testimony regarding this incident, I credit Merritt’s
account as the more accurate. It is corroborated by Eversole. In addition, Gibson’s account
contained inconsistencies and generally failed to make sense. While it would hardly be
surprising that Merritt might react angrily to Gibson’s warning about harassment, there is no
apparent reason why he would respond by telling Gibson to return to his work station. All three
witnesses were in agreement that the conversation occurred at Gibson’s work station. It makes
far more sense to conclude that Gibson has compressed two separate incidents into one
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account. Thus, I conclude that after Merritt’s brief comment early in the workday, Gibson
became angry. Six hours later, he took the opportunity to express his anger to Merritt by
warning him about harassment charges. In doing so, he departed from his work station while
wearing an allergen apron in order to accost Merritt, who was located some distance away.
During this rather angry encounter, it would have been entirely logical for Merritt to order Gibson
to return to his station.
Finally, Roderic testified to a conversation with Merritt at around the same time. Merritt
approached him and told him that, “I seen your face in that—you look pretty good in that picture
there you got on the union.” (Tr. 53.) He added that, “[y]ou guys could have used another route
rather than going union.”16 (Tr. 53.)
While I will assess the legality of Merritt’s behavior on this date regarding the
photograph, it is obvious that his decision to discuss the matter with employees was
controversial. Therefore, it is important to note that there was convincing evidence to establish
that his behavior was not condoned by higher management. Thus, Merritt testified that, later on
the same day, a meeting with the line supervisors was held by management officials. Merritt
reported that, at that meeting, the supervisors were instructed not to talk to the employees about
the Union.
Of course, one cannot help but note that Merritt’s claim that he was ordered to refrain
from union discussions was self serving in the context of this case. I was struck, however, by
the fact that one of the General Counsel’s witnesses provided powerful confirmation of his
account. That witness, Melinda Scott, was a supervisor for the Employer at the time of these
events. Subsequently, she was discharged for falsification of company records. It was evident
that she was a witness who had a hostile attitude toward her former employer. Nevertheless,
she confirmed that, in late March, she attended a supervisors’ meeting conducted by the top
managers of the facility. Those managers told the supervisors that “we didn’t want the union
there.” (Tr. 835.) However, at the same time, she reported that they instructed the supervisors
that, “if people come up, you know, we could tell them our opinion but we couldn’t—you know, if
they asked us questions, we could just tell them we couldn’t discuss it with them.” (Tr. 835.) In
my view, this testimony from an adverse witness tends to support Merritt’s contention that the
supervisors were ordered to refrain from the sort of provocative conduct that he had been
involved in earlier that day.
After the election petition was filed, the Union’s campaign continued. On April 6, union
supporters engaged in handbilling activity outside the plant. Roderic reported that he
participated and was observed by Osborne.17 In preparation for the representation case
hearing scheduled for April 8, the Union issued a subpoena seeking information regarding
employees. The Employer argued to those employees that this was an affront. It issued a
notice asserting that the subpoena showed that, “[w]hen a union is in the picture, your privacy is

16 I reject Roderic’s claim that Merritt added a gratuitous admission that he wasn’t supposed
to talk about the Union with him. Such an admission was both unlikely and entirely absent from
the accounts of Merritt’s otherwise virtually identical conversations about the photo with other
employees at the same time. I find that, prior to the management meeting where supervisors
were instructed to refrain from making such comments, Merritt chided a number of employees
about their presence in the photo. Once directed to cease, he complied.
17 During this time period, Audia was away from the plant. He was performing a work
assignment at another company facility from March 28 through April 1. (R. Exh. 11.)
Thereafter, he immediately took disability leave due to back and leg problems. (R. Exh. 12.)
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never safe.” (R. Exh. 26.)
On April 10, Griffin transferred from the human resources manager position to his
current role as manager of corporate recruiting. The next day, Mike Streny was brought in from
another facility in Indiana to become the human resources manager. He reported that he first
became aware of the Napier funeral leave issue on April 13 or 14.
On April 13, the Collins brothers again participated in handbilling outside the plant.18 It
is undisputed that they were observed by a variety of supervisors. Although she was uncertain
of the precise date in April, Jackson testified that she also participated in this activity. While
outside the plant, she held up a prounion sign. She reported that she became aware that this
had come to management’s notice when a supervisor, Denver Eaton, asked her, “if that was me
out there at the intersection holding up a sign, and I said yes.” (Tr. 321.)
Among the Employer’s responses to the Union’s organizing effort was the decision to
hire a consultant, William Wheeler, to address the workforce. Wheeler testified that he has had
more than 30 years of experience as a “consultant to management and labor.” (Tr. 784.) On
April 18, he gave speeches to the assembled workers for each of the plant’s three shifts. The
General Counsel contends that he made an allegedly unlawful solicitation to the employees to
circulate an antiunion petition and that he unlawfully made implied promises to remedy
employees’ grievances. Because of this, it is necessary to assess the testimony of the
numerous witnesses who attended these speeches by Wheeler.
To begin, Wheeler testified that he gave separate speeches to each of the three shifts.
The first talk started at 1 p.m., the second began at 2:15 p.m., and the final one commenced
around 9:30 to 10 p.m. At each session, he was introduced to the attendees by Sherman. He
reported that, while he did not read from a script, he gave the same speech to each audience.
Wheeler reported that, near the beginning of his first talk, a couple of employees
shouted out, asking “why can’t we make all of this stop and go away.” (Tr. 785-786.) Wheeler
testified that he made the following response:
I said that since they asked the question, that I was allowed to answer
that question, and that is, that just like employees have the right to sign
an authorization card under the Act, they also have the right to refrain
from having the union. . . . I said the process of—of refusing to organize
is, that just like you have the right to sign a card, you have the right to
sign some kind of document that you can send to the union and the
Labor Board letting them know that you want to stop the vote. . . . I said
that if, in fact, the union accepts whatever you submit, then the vote
could be basically set aside for six months with prejudice.
(Tr. 786.)
Wheeler also reported that he told the audience members at each meeting that,
“anything they circulated had to be done on their own time, that management could have
absolutely no involvement in the process.” (Tr. 788.) Finally, he added that, “whatever they
decided to circulate had no legal bearing like the Union’s petition has. That it’s merely a show
of force. And if, in fact, the Union chooses to accept it, then they could request a withdrawal [of

18 At the time he participated, Audia was on disability leave from his job.
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the election petition] from the Board.” (Tr. 789.)
During each of his speeches, Wheeler also presented the Employer’s viewpoint as to
topics related to the issue of representation, including the consequences of economic strikes
and the parameters of the collective-bargaining process. In so doing, he reported that he read
passages from a Board publication, The Basic Guide to the National Labor Relations Act.
Apart from Wheeler’s own account of what he said at the three meetings, various
employees were called by both sides to relate their own recollection of what occurred at each
meeting. As to the first meeting, the General Counsel produced the testimony of Bernice
Creech, while the Employer produced testimony from Laura Hubbard and Beverly Davidson.
Creech, a machine operator, reported that she attended Wheeler’s speech to the first
shift employees. In her direct testimony, she asserted that Wheeler told the assembly that,
“they could start a petition that would stop the union election for at least six months. It would
give the Company time to do better, gain their trust.” (Tr. 762.)
The strength of this testimony was significantly undercut by two factors. In the first
place, Creech indicated that the speech took place on June 18, or “something to that effect.”
(Tr. 760.) While it would be unreasonable to expect an attendee to remember the precise date,
I am troubled both by Creech’s attempt to name a defined date and, more importantly, by how
far off her suggested date was from the actual April 18 speech.
Beyond Creech’s erroneous attempt at precision, her testimony was profoundly
impeached by her pretrial affidavit. That affidavit was taken a mere 3 weeks after Wheeler gave
his talk. In it, she gave a specific account of the same aspect of Wheeler’s speech, the
circulation of an antiunion petition. She asserted that Wheeler, “told us we could start a petition,
and the union would go away for at least six months. I am not sure if Wheeler solicited
signatures, or told us that he would help us start the petition.” (Tr. 774.) Importantly, after
reviewing her affidavit, Creech conceded that it made no mention of any offer by management
to use the 6-month period as a time to improve working conditions or gain the trust of the
workforce. Thus, a mere 3 weeks after the speech, Creech was already uncertain in her recall
of its content. Moreover, at that time, she did not make any claim that Wheeler solicited
employees to defer representation in order to afford management time to make improvements
or gain trust. Under these circumstances, it is appropriate to place reliance on Creech’s
account only to the extent that it is corroborated by other credible evidence.
Davidson, a packer/loader, also attended Wheeler’s speech to the first shift. She
reported that numerous employees spoke out at the meeting. She also testified that, “there was
an employee that stood up and asked if there was anything we could do to put off the union
vote.” (Tr. 963.) Wheeler replied that, “we could have a petition, but it would put it off for six
months, but it wouldn’t stop it.” (Tr. 963.) While she eventually signed such a petition,
Davidson was clear in stating that management made no promises, either general or specific, in
connection with the petition.
Hubbard, a machine operator, attended the same meeting. Her account strongly
supported Davidson’s. She noted that employees asked Wheeler, “how can we, like if we don’t
want the union, is there anything we can do, you know, to—to prolong it, or anything?” (Tr.
954.) Wheeler suggested the petition, observing that, “if there’s enough signs it, it will prolong it
up to six months.” (Tr. 955.) As was the case with Davidson, Hubbard testified that she did
sign such a petition, but that no one in management made any sort of promise or commitment in
connection with the petition.
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In evaluating these four accounts of Wheeler’s statements at the first-shift meeting, I
conclude that he raised the topic of the petition in reply to employees’ questions about how to
deflect the Union’s attempt to organize the workforce. I further conclude that Wheeler made it
clear that such a petition would have to originate from within that workforce and that
management could not be involved. Finally, I reject Creech’s attempt to claim that Wheeler tied
the petition to an implied promise of improved working conditions. Her assertion was
impeached by her own affidavit and was at odds with the testimony of the other persons who
were present at the meeting.
Regarding Wheeler’s speech to the second shift, the parties called 5 witnesses, apart
from Wheeler. Counsel for the General Counsel offered the testimony of Rhonda Head and
Melissa Asher. Counsel for the Employer called James Lindsay, Reba Scalf, and Frederick
Feltner.
Machine Operator Head testified that she was an active employee participant in the
meeting and that she argued with Wheeler to such an extent that he accused her of being
disrespectful and directed her to cease her commentary. She contended that Wheeler brought
up the petition issue by telling the audience that, “a guy from a previous meeting had stopped
him and asked how to make it, referring to the Union, just go away.” (Tr. 505.) At that point,
Head reported that Wheeler told them about circulating a petition that could, “delay the union for
six months.” (Tr. 505.) She added that he asserted that, “during the six months it would give
the Company time to work on the problems.” (Tr. 505.)
In contrast to the highly partisan demeanor and testimony provided by Head, counsel for
the General Counsel’s second witness, Asher, impressed me as a prudent and careful witness
whose attempt to provide a balanced account offered strong assurances of reliability. To
illustrate, Asher began her description of Wheeler’s statements as follows:
[Wheeler] pretty much just told us the pros and cons. You know,
what—what’s good about a union, how it can help and, you know,
the differences, pretty much . . . .That the union could help a lot on
safety issues, you know, different stuff that happens like the—you
know, they can help. Let’s say, like, for instance, if you didn’t have
a company that—say you were working for a company and they
didn’t have like really good health insurance or, you know, maybe
they didn’t even offer no benefits, they—they can, you know, start
seeing if they can get that for you, which is a good thing, you know.
(Tr. 521-522.)
Only after some prodding by counsel for the General Counsel did Asher mention
Wheeler’s opinions as to the negative aspects of union representation. She indicated that he
raised the inevitability of union dues and the risk of strikes. After a bit more prodding, Asher
discussed the topic of the petition. In stark contrast to Head’s tale, Asher reported that a
woman in the audience, “asked how we can make this all go away.” (Tr. 523.) She reported
that Wheeler’s response was:
[Y]ou can take up a petition. He said not the Company, you. You
guys can take up a petition. He said take it, get a petition started,
go ahead and take it from there. He said you can put it off for about
six months, give you guys a—a chance for the Company to prove
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itself.
(Tr. 523.)
The Employer’s presentation of audience members at the second-shift meeting began
with James Lindsay, a machine backup lead person.19 Lindsay testified that an employee
asked Wheeler, “what kind of rights do we have, if we don’t want to have a union.” (Tr. 904.)
Wheeler told them, “that we had a right to a petition that we didn’t want to have a union vote.”
(Tr. 90.4) He added that Wheeler admonished that, “we had to do it on our own time.” (Tr.
905.) Lindsay reported that he was sufficiently impressed by this concept that he did draft a
petition on the following day and circulated it among his coworkers. He testified that he did not
have any assistance with this project.
The Employer’s second witness on this topic was Scheduling Clerk Scalf, another
bargaining unit member. Scalf reported that, while Wheeler was giving “his perspective of the
union, the pros and cons,” employees asked him, “what our rights were.” (Trs. 940, 941.) She
indicated that he told them that, “we could take up a petition to stop the vote.” (Tr. 942.) Scalf
testified that she did sign such a petition and that neither Wheeler nor anybody else in
management had made any promises, either during the meeting or subsequently.
Finally, Frederick Feltner, a mixer helper, testified that, during Wheeler’s speech, an
employee asked, “how would he go about stopping the vote, or postponing the vote?” (Tr. 993.)
Wheeler indicated that they could circulate a petition that could postpone the vote for 6 months.
Feltner reported that Wheeler told them, “we could do it on our own.” (Tr. 99.3) He added that
he did sign such a petition, but that nobody from management solicited his signature or made
any promises to him.
In evaluating the varied accounts of the second-shift meeting, I clearly reject Head’s
claim that Wheeler, himself, raised the topic of how employees could take action against the
Union’s organizing campaign. The credible evidence establishes that he told the assembled
workforce about his petition idea only after employees expressed a desire to learn about how
they could express their own opposition to representation. The evidence is also clear in
demonstrating that Wheeler expressly advised the employees that such a petition would have to
represent their own efforts and that management would not be able to participate. Beyond this,
it is very clear that Wheeler did not make any specific promises to employees who would
engage in this activity. Lastly, because I found Asher to be such an impressive informant, I do
conclude that Wheeler made some sort of vague and general remark to the effect that a delay in
the representation election would permit the Company to “prove itself.” (Tr. 523.)
Apart from Wheeler, 3 witnesses described the third-shift meeting. Counsel for the
General Counsel called Peggy Jackson and Robert Donaldson, both employees who have since
been discharged by the Company. Counsel for the Employer presented the testimony of
Tammy Powell.
Jackson’s account suffered from the same sort of partisanship as the testimony that
Creech had provided regarding the first-shift meeting. Thus, she reported that Wheeler told the
third shift that, “we could take up a petition to keep the Union from coming in, to give him six
months to make things better, to straighten up, get things back in shape.” (Tr. 324) On the

19 The parties agree that this job was a part of the bargaining unit, not a supervisory
position.
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surface, this account appeared clear-cut. However, under cross examination it developed that,
like Creech, Jackson had provided an affidavit that contained a description of Wheeler’s speech.
Tellingly, this earlier account failed to make any mention whatsoever of any implied or express
promise, including promises to make things better, to straighten up, or to get things into shape.
This critical variance in the two sworn accounts, coupled with Jackson’s obvious and
understandable bias, leads me to reject her description of Wheeler’s statements.
The General Counsel’s second witness, Donaldson, had been a mixer for the Company.
He reported that he had been fired and had filed a charge about his termination with the Board.
Subsequently, he withdrew that charge. Interestingly, Donaldson did not testify that Wheeler
made any express or implied promises to the workforce. He did report that Wheeler, “was
talking about the Union, and we could start a petition and it will be ended for six months.” (Tr.
530.) In general, Donaldson professed a limited ability to recall the speech. On the issue of
whether Wheeler raised the petition sua sponte or in response to an inquiry from the audience, I
do not find Donaldson’s testimony to be useful.
The Employer’s witness as to the third speech was Powell, a forklift driver. Powell
reported that someone in the audience, “asked if they could get a petition up, you know, and if
we could get enough people to sign it, how many people would it take to sign it to get the Union
to go away.” (Tr. 1003.) Wheeler replied that, “we could get the petition up, but he didn’t know
if it would do any good or not.” (Tr. 1004.) Powell indicated that she did sign such a petition,
but that no one from management had solicited her to do so or promised her anything in return.
Finally, and significantly, Powell was asked if Wheeler, himself, made any promises to the
workforce during the meeting. She testified, “[n]o, he blank told us he couldn’t make any
promises.” (Tr. 1005.)
On examination of the accounts of the third-shift meeting, I conclude that Wheeler was
asked about the possibility of employee action to demonstrate opposition to the Union. He
responded by discussing the circulation of a petition, but refrained from making any promises,
express or implied.
In the days following Wheeler’s series of speeches, employees circulated a petition
stating that they “do not want a union vote at this time.” (R. Exh. 49.) It appears that 191
employees signed the petition. During this period, Wheeler spent time inside the plant and
spoke to employees. Head asked Wheeler why the Company’s CEO did not come and talk with
the workforce. Wheeler explained that the Employer’s lawyers did not permit this. Head
reported that she then complained about the attendance policy and health insurance. She
testified that, on hearing her complaints, a coworker interjected that if this was all that was of
concern, she wished to sign the antiunion petition. Wheeler told her the name of an employee
who possessed such a petition. Head also reported that she asked Wheeler if the plant would
close and he declined to answer, indicating that he wished to avoid any statements that could
be seen as a threat.
At approximately this time, during Wheeler’s discussions on the plant floor, the General
Counsel alleges that he committed 2 unfair labor practices consisting of implied promises to
remedy employees’ concerns if they abandoned the organizing effort. In the first of these,
Rhonda Dalrymple, a machine operator, reported that in late April or early May she asked
Wheeler why he was so opposed to the Union given that he also claimed that the Union would
not accomplish anything for the employees. She testified that Wheeler responded that “you
don’t need a union.” (Tr. 207.) She contends that he added a comment that, “I’ve only been
walking around here for a week, or a few days, but I can see things that I would change.” (Tr.
207.) The only specific item he mentioned was the lighting over the Oreo production line. She
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reported that he added, “[b]ut I’m not here—but he said I’m not here to do—that’s not my job.
I’m here to explain why they shouldn’t vote a union in.” (Tr. 207.)
Taking Dalrymple’s testimony at face value, it would lead to a conclusion that Wheeler
made a vague indication that he perceived items that needed to be changed. He cited only one
minor specific condition and immediately added that it was not his role to propose improvements
in such working conditions. Beyond this, I have concluded that Dalrymple’s testimony must be
regarded with considerable skepticism given her animus against her former employer and her
self-reported blithe willingness to have abused the Employer’s benefit programs to her own
advantage.20
The second conversation between Wheeler and an employee that is alleged to consist of
an unfair labor practice was reported by Gibson. He testified that, sometime in May, Wheeler
engaged in a discussion with a group of employees. He took Gibson aside and said, “I’m not
asking you to vote no . . . . I’m just asking you to give the Company six months to change.” (Tr.
735.) Gibson testified that he asked Wheeler about plant closures and Wheeler declined to
discuss this matter. They also discussed the fact that the Union had lost a representation
election at another of the Employer’s facilities in Ohio.21 Gibson asserted that Wheeler told him
that, “they were making changes up there, and he couldn’t tell me the changes that they was
making.” (Tr. 740.)
Wheeler was not specifically asked about these conversations with Dalrymple and
Gibson. He testified generally that he walked around the plant and answered questions from
employees. He reported that his responses were the same as what he had stated in his
speeches on April 18. I was struck by the fact that, while Gibson was clearly attempting to
demonstrate that Wheeler had made unlawful promises during their conversation, the bulk of his
testimony supported the opposite conclusion, i.e., that Wheeler was aware of the legal
parameters of his talking points against the Union’s organizing campaign and repeatedly
declined to transgress those guidelines. As to both his discussions with Dalrymple and Gibson,
I conclude that he intentionally attempted to avoid any express or implied promises of benefit.
Returning now to the narrative regarding the funeral leave controversy, Griffin testified
that, on April 20, he examined a copy of Napier’s obituary that had been published by the
funeral home. This document contains sufficient genealogical information to lead to the
conclusion that Napier was not the uncle of the Collins brothers. (See, GC Exh. 5.) Armed with
this confirmatory information, Griffin and Streny telephoned Audia at approximately 11 a.m.22
They asked if he could come to the facility to discuss the funeral leave issue. He told them that
his medical condition made it impossible for him to “get off the couch.” (Tr. 1199.) The two
supervisors then decided to proceed with the discussion by telephone. Streny asked Audia to
clarify how Napier was his uncle. He told Audia that, “it had come to our attention that—that Mr.
Napier was his cousin.” (Tr. 1199.)

20 I am referring here to Dalrymple’s striking testimony that she twice submitted false funeral
leave certifications in order to collect paid leave that she was not entitled to receive. I will
discuss this in more detail later in this decision.
21 The Union suffered a resounding defeat in that election. Only 168 employees voted in
favor of representation, while 534 voted against it. (R. Exh. 28.)
22 Audia claimed that he had no idea why Griffin was calling him. I find this to be highly
disingenuous given that he had discussed the funeral leave issue with a number of family
members and was clearly aware that it could result in disciplinary problems for him.
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At this point in the conversation, Audia conceded that Napier was his cousin, not his
uncle. He told the supervisors that it was “confusing” and the Roderic had made a “mistake.”
(Tr. 1199.) He also asked, “what would happen if he was found guilty of stealing Company
money?” (Tr. 1265.) They replied that this would result in his termination. Audia offered to
have the pay for the 2 days of funeral leave taken from his accumulated vacation time. The
discussion ended when the supervisors informed him that he was being suspended pending the
conclusion of the investigation.
After this conversation with Audia, Griffin and Streny held a similar meeting at the plant
with Roderic. Roderic’s own testimony about the content of that meeting clearly shows that he
continued to claim that Napier was his uncle until the moment he was confronted with a copy of
the obituary. He explained that, after being shown this document, “that’s when I said—I went
ahead and told him that I had spoke with my grandmother and there was a mistake made, and
that I was wrong.” (Tr. 85.) He then offered to give up a day of accumulated vacation time to
make up for the day of paid funeral leave. The accounts of this meeting provided by the two
supervisors are essentially the same. Streny indicated that by the end of the discussion,
Roderic had become “agitated.” (Tr. 1269.) The meeting concluded with Roderic being
informed that he was suspended and that he may be terminated.
Later that afternoon, Audia telephoned Griffin to discuss several topics related to his
situation. He began by asking about health insurance coverage in the event he was terminated.
Griffin explained that coverage would be affected and that the provisions of COBRA would
apply. Griffin reported that Audia then provided a further explanation of his behavior as follows:
I know there has been a problem with me saying Jimmy was my
uncle for some time, but that he was afraid to come forward and
tell the truth because his brother, Roderic, was a big union pusher,
and that he had been advised not to say anything.
(Tr. 1204-1205.) Audia refused to answer a question about who had given him this advice. He
again offered to repay the money. Finally, he told Griffin that, “he may not be able to come back
anyway, that his doctor had told him because of his back injury . . . he may have to apply for
disability.” (Tr. 1204.)
Streny reported that after the suspensions of the two brothers, he and Carey Koplowitz,
the plant manager, made the final decision to terminate their employment. He testified that they
were not influenced by any union activities of the two men. Written explanations of the decision
were prepared indicating that the men were discharged for “willfully falsifying . . . company
reports” and “theft of company property.” (GC Exh. 8 and R. Exh. 14, p. 24.)
After the termination decisions were finalized, Streny and Griffin attempted to notify both
men by telephone on April 21. They could not reach Audia, but did speak with Roderic and
advise him of his termination from employment. Immediately thereafter, Roderic informed Audia
that he had been discharged. On hearing this, Audia left a voicemail for Griffin telling him, “that
I was going to quit because I didn’t know for sure if I was going to be able to return to work and
. . . I didn’t want this on my record.” 23 (Tr. 241.)

23 In what I consider a revealing glimpse into Audia’s mindset, later in his testimony he
contradicted his earlier report that he told Griffin he did not want the funeral leave issue on his
employment record. He asserted that he was “pretty positive” that he did not say this to Griffin.
(Tr. 296.) I conclude that this attempt to withdraw his earlier account reflects his belated
Continued
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Audia further testified that, within the hour, he “calmed down a bit,” and called Griffin
again. He contended that he left a second message stating that he wanted to “retract my
statement about quitting, that I didn’t want to quit.”24 (Tr. 241.) He also claimed that he did not
receive a return phone call from Griffin, but did get a written termination notice from the
Company. In contrast, Griffin testified that he answered Audia’s call personally and declined to
permit the rescission of Audia’s resignation, telling him that it had already been accepted and
that the decision “would stand.”25 (Tr. 1216.) Griffin’s version is corroborated by a
memorandum he composed that documented their conversation. (See, R. Exh. 47, p. 4.)
Meanwhile, despite having filed several unfair labor practice charges against the
Company, on May 4, the Union filed a request with the Regional Director seeking to proceed
with the representation election. (R. Exh. 51.) On the following day, the Director issued a
decision and direction of election. (GC Exh. 1(ff).) That election was held on June 2 and 3.
On the first day of this election, June 2, another event occurred that figures prominently
in this litigation as it led to the discharge of Jackson two weeks later. Jackson testified that, as a
machine operator, she is required to wear a uniform consisting of a brown shirt, brown pants,
and tennis shoes.26 She also noted that her work shift on this date began at 9:30 p.m. She
arrived at the plant at 9:15, however, she was not dressed in her uniform but was still wearing
street attire due to her having attended a “funeral layout” prior to her shift. (Tr. 329.)
There is some dispute in the testimony regarding the nature of Jackson’s street attire on
this evening. Jackson reported that when she entered the plant through the designated
employees’ entrance, she was dressed in, “[a] skirt and a black top and wedge shoes.” (Tr.
360.) She conceded that the shoes were open-toed and decorated with plastic stones.27 In
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recognition that this testimony demonstrated that he knew that his conduct in claiming paid
funeral leave was dishonest and properly rendered him subject to censure.
24 The record reflects that Audia subsequently applied for unemployment compensation. I
infer from this that his decision to retract his resignation stemmed from his realization of the
potential consequences of such a voluntary quit on his claim for future benefits.
25 During the trial, I raised the question as to whether this case involved an issue of alleged
unlawful refusal to permit an employee to withdraw his resignation. In appropriate
circumstances, the Board will find a discriminatory refusal to allow retraction of a resignation to
constitute a violation of Sec. 8(a)(3). See my decision to that effect in Northern Berkshire
Community Services, 1-CA-45210, JD-10-10, 2010 WL 805666 (March 9, 2010), and the
precedents I cited at fn. 49. In the present case, all counsel agree that the evidence clearly
showed that the Employer had decided to discharge Audia before he attempted to resign. Thus,
there is no need to address the resignation issue separately. In any event, the outcome of such
an analysis would be the same, since I do not find that the Employer acted out of unlawful
animus in its response to the funeral leave issue and its effect on Audia’s continued
employment.
26 Jackson explained that this was the color scheme for machine operators. The
uncontroverted evidence showed that the Employer maintained detailed standards of attire that
would identify individuals’ job duties and, more importantly, meet objectives related to industrial
safety and prevention of food contamination. These rules are termed, “Good Manufacturing
Practices,” and Jackson had most recently attended one of the Employer’s regular training
sessions about these practices on February 11. (R. Exh. 39, p. 1 and R. Exh. 40.)
27 Interestingly, Jackson also reported that she entered the plant wearing her hairnet and
ear plugs. She testified that she did so because of the Employer’s required Good
Continued
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response to the Employer’s subpoena, Jackson produced the clothes that she contends she
was wearing that day. They are depicted in a photograph at Respondent’s Exhibit 15, which
shows her dressed in a blouse and skirt whose length is well below her knees.
In contrast, the Employer’s witnesses testified that the clothing submitted by Jackson in
response to the subpoena was not the same attire she wore on that date. Osborne testified
that, when she interacted with Jackson on June 2, she was not wearing the same top as the one
produced. More importantly, her skirt was much shorter, only coming to an area above her
knees. This was corroborated by a contemporaneous written report prepared by the second
supervisor who interacted with Jackson at the time in question, Denver Eaton. His account
described her attire as, “a dress up past her knees and open-toed shoes.” (Tr. 1122.28)
Interestingly, the supervisors’ descriptions are corroborated by the testimony of a discharged
former employee who was presented as a witness by the General Counsel. That former
employee, Roger Hall, reported that he saw Jackson inside the plant that evening wearing a
“flower print dress” and high-heeled shoes.29 (Tr. 465.) Based on the totality of the evidence on
this issue, I find that Jackson was not wearing the clothing she submitted in response to the
subpoena, nor was she wearing the clothing she described in her testimony. Instead, she was
wearing a dress that did not cover her knees. Thus, at the minimum, her attire violated the
Employer’s standards both as to length of the skirt and type of her shoes.30
Because Jackson chose to enter the plant in street clothes, she had encounters with two
supervisors who observed her clothing violations and attempted to intervene to enforce the
industrial and food safety rules. At trial, Jackson and those supervisors, Osborne and Eaton,
presented detailed accounts of these interactions.
Jackson testified that, on arriving at work at 9:15, while dressed in street attire, she
“entered into the plant, and I was on my way to the time clock when I met Ms. Renata Osborne.”
(Tr. 329.) Osborne told her that she wasn’t “supposed to be in here like that.” (Tr. 329.)
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Manufacturing Practices. This is significant since Jackson attempted to justify her street attire
by claiming that she was not in a work area that demanded compliance with those practices. I
find that her decision to wear the hair cover and ear protective devices demonstrates her
knowledge that she was in a work area that required conformity with those industrial and food
safety rules. I clearly find that the credible evidence, including a diagram and various
photographs, demonstrates that the area where Jackson was observed in street clothing was in
proximity to baking ovens and directly adjacent to the pathway used by forklifts that transported
dough. It was certainly covered by the regulations related to food and industrial safety.
28 For some reason, Eaton’s report, marked as R. Exh. 46, is not included in the
Respondent’s exhibit file as prepared by the reporting company. As correctly indicated in the
transcript, it was admitted into the record at trial. I conclude that there is no need to replace the
missing document as the witness read its entire contents into the record in the presence of all
counsel. (See, Tr. 1122-1123.)
29 While I certainly recognize that not all men are experts at describing women’s clothing, I
find it impossible to conclude that even the most casual and uninformed observer would
characterize the clothing submitted by Jackson in response to the subpoena as a dress. It is
obvious that her submitted attire consists of a light colored skirt and a very dark top. See, R.
Exh. 15.
30 There is absolutely no dispute that her shoes did not conform to the Good Manufacturing
Practices as they had heels, were open toed, and were decorated with stones. (See, R. Exhs.
16 and 17.) In addition, her skirt appears to violate the handbook’s admonition that employees
may not “wear loose clothing . . . when at work.” (GC Exh. 6, p. 26.)
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Jackson replied that she had her work clothes and shoes with her and she needed to clock in.
She next reported that at the moment she arrived at the time clock, she encountered Eaton. He
told her that, “you can’t be in here like that any more.” (Tr. 329.) She said, “okay,” proceeded to
clock in and go into the bathroom and change into her work uniform. (Tr. 329.) She reported
that she arrived at her production area at approximately 9:25 to 9:28.
What is notable about Jackson’s testimony is her determined attempt to deny that either
supervisor instructed her to immediately change her clothes before proceeding any farther into
the plant. This is underscored by her contention that Eaton told her she could not be in the
plant “like that any more.” (Tr. 329.) The thrust of her account is to suggest that the supervisors
expressed their displeasure about her attire but acquiesced in her decision to proceed to the
time clock and clock in before changing in the restroom. As will be described shortly, both
supervisors vehemently deny this claim. Therefore, it is significant to note that Jackson’s claim
differs from her prior formal account of the events that evening.
Under cross-examination, Jackson was confronted with her written account of the
evening’s events that she had submitted to the state administrative agency in connection with
her unsuccessful claim for unemployment benefits. In that statement, she reported that, “I
passed by Renata Osborne and Denver Eaton, who stated, quote, ‘You need to change your
clothes, you can’t wear them.’” (Tr. 446.) Counsel for the Employer followed up with this
exchange:
COUNSEL: Isn’t it true that after Mr. Eaton told you that you needed
to change, that you went and . . . you clocked in, instead
of changing?
JACKSON: I was already at the time clock.
COUNSEL: So the answer to my question is yes.
JACKSON: Yes.
(Tr. 447.) On re-direct, Jackson compounded the problem by claiming that her statement to the
state agency had actually been written by her daughter-in-law who erred in writing that Eaton
told her to change her clothing.31 (See, Tr. 458.)
Osborne testified that she clearly instructed Jackson to change her clothing immediately.
As she described their encounter, she noted that she approached Jackson and addressed her
as follows:
Peggy, you cannot have those clothes on this—in the factory. I’m not
quite sure what you are doing. And she told me she had to because
she was going to be late clocking in. And I said, but you can’t be in
here like this, you have to change your clothes. And, again, she told
me, no, I have to clock in because I’m going to be late.”
(Tr. 1320.) At that point, Jackson continued to walk away from the restroom and toward the

31 This claim is absurd given that the daughter-in-law had not been present and was merely
recording what she was told by Jackson. Furthermore, Jackson signed and submitted the
statement to the agency herself.
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time clock. Osborne next observed Eaton approach Jackson and again instruct her that she
could not “wear that into the plant.” (Tr. 1321.) Jackson continued on to the clock and punched
in. Osborne immediately went to her office and wrote a report about the incident.32
Eaton testified that he saw Jackson come in the employees’ entrance while she was
“improperly dressed.” (Tr. 1114.) He called out to her but she did not hear him. He then, “sped
to catch up with her.” (Tr. 1114.) Before he could do so, Osborne stopped Jackson and spoke
to her. Eaton indicated that he did not hear their conversation. After speaking with Osborne,
Jackson continued into the plant. Eaton then approached Osborne and asked her why she had
permitted Jackson to remain on the plant floor in her street clothes and open-toed shoes.
Osborne told him that, “she tried to stop her.” (Tr. 1115.)
Eaton then managed to accost Jackson himself. He testified that he told her, “she
couldn’t be in the—around the oven area, the production area that way, she needed to go
change.” (Tr. 1117.) She told him that, “she couldn’t, she was in a hurry, she had to clock in,
she was running late.”33 (Tr. 1117-1118.) Whereupon, Eaton reports that Jackson walked
another “25 foot, maybe 30 foot” to the time clock and punched in. (Tr. 1118.) Eaton made an
immediate report of the incident to Rita Abrams, the shift manager. He told Abrams that,
“Peggy was improperly dressed when she come into the factory, and that she was insubordinate
to the HR manager and myself.” (Tr. 1121.) Later that evening, Eaton wrote a report regarding
the events.34
On June 3, Osborne delivered her report concerning the previous day’s incident with
Jackson to Streny. Also on this date, the election was concluded. Jackson was among a group
of five employees and a number of supervisors who attended the ballot counting. The results
revealed that the Union had received 168 votes. In contrast, 416 employees voted against
union representation. (See, GC Exh. 1(r), p. 1.) On June 8, the Union filed objections to

32 Osborne’s contemporaneous written account is consistent with her testimony and
indicates that she twice told Jackson to change, “but she kept on walking.” (R. Exh. 50.)
33 This highlights what is actually a mysterious feature of this incident. Both at the time
these events took place and in her trial testimony, Jackson contended that she behaved the way
she did because she was running late and was fearful of clocking in late. In reality, she
admitted that she arrived at 9:15 for her 9:30 shift and her time clock record shows that she
clocked in at 9:19. (R. Exh. 37 and Trs. 402 and 1070.) Indeed, by punching in 11 minutes
before her shift started, she actually violated a work rule that states that employees “must
register by punching in no sooner than five (5) minutes prior to the start of your shift.” (GC Exh.
6, p. 9.) She has never explained why she could not have gone into the restroom, changed,
and then proceeded to clock in. There is no doubt that she had time to change, talk to Osborne
and Eaton, clock in, and still report to her production location by no later than 9:28. I say this
because she actually did all this and managed to start her shift on time. Had she chosen a
different order of events, there would have been no problem. Similarly, had she chosen to
comply with Osborne or Eaton’s instructions, she could also have likely arrived at her work
station before 9:30.
34 Like Osborne, Eaton’s contemporaneous report is consistent with his trial testimony. An
interesting feature of his report is his notation that, at the time that she clocked in, “it was fifteen
minutes until her shift started.” (R. Exh. 46, and Tr. 1123.) I asked Eaton why he bothered to
mention this fact. He told me that he noted the time because he wanted the record to reflect
that Jackson was not “right on the dot pushing to clock in” and actually had sufficient time to
change her clothes. (Tr. 1129.) Thus, he was commenting on the same mystery I have already
discussed in the preceding footnote.
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conduct alleged to have affected the outcome of the election.
On June 14, Jackson was called to a meeting conducted by Abrams. At that time,
Abrams read to her from a termination report that had previously been prepared. The report,
referring to the June 2 incident with Osborne and Eaton, based her termination on two separate
grounds. First, it contended that her appearance in the plant in her street attire represented a
violation of the required Good Manufacturing Practices. The report indicated that this
constituted her third and final disciplinary infraction within the terms of the Company’s
progressive discipline system. In addition, the report indicated that Jackson was also being
terminated for the offense of “willful insubordination or defiance of authority,” an offense that
required termination regardless of any past history of disciplinary actions. (GC Exh. 20.)
Abrams testified that in response to this news, Jackson stated that, “she had heard Renata
[Osborne] and Denver [Eaton] telling her something[,] that she told them that she had to hurry
and get clocked in.” (Tr. 1013.)
When Jackson returned to her home, she telephoned Osborne regarding her
termination. Osborne told her that the decision was in the hands of Streny who was out of town.
She indicated that she would ask Streny to contact her when he returned. Jackson reported
that he never did so.
To date, neither Roderic Collins, Audia Collins, nor Peggy Jackson has been employed
by the Company. The Regional Director filed his amended consolidated complaint that alleged
a variety of unfair labor practices, including the discharges of these employees, on October 6.
On October 11, the Director issued an amended report on objections to the election. The two
proceedings were consolidated and are now before me for adjudication.
B. Legal Analysis
In conducting my analysis of the various issues presented in this case, I will begin with
the allegations that the Employer engaged in certain conduct that coerced and restrained its
employees and interfered with their right to obtain union representation in violation of Section
8(a)(1). I will then assess the contention that the Employer’s decisions to discharge the Collins
brothers and Jackson were unlawfully motivated and constituted discrimination prohibited by
Section 8(a)(3). Finally, I will evaluate the Union’s claim that conduct of the Employer affected
the result of the election in a manner prohibited by the Act.
1. Alleged unlawful conduct by Supervisor Merritt
Chronologically, the General Counsel’s first contention that the Employer violated the
Act is the assertion that Supervisor Merritt conducted an unlawful interrogation of Gibson on
March 17. The evidence establishes that Merritt did pose a question to Gibson on that date.
In evaluating whether Merritt’s questioning of Gibson violated Section 8(a)(1), as
alleged, it is necessary to employ the Board’s established criteria. These were well-described in
Holiday Inn-JFK Airport, 348 NLRB 1, 4 (2006), as follows:
The Board applies a totality of circumstances test to determine whether
the questioning of an employee would reasonably tend to coerce that
employee in the exercise of Section 7 rights, thus constituting unlawful
interrogation. [W]hen analyzing alleged interrogations, the Board will
consider, inter alia, . . . [the following] factors: (1) The background, i.e.
is there a history of employer hostility and discrimination? (2) The
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nature of the information sought, e.g., did the interrogator appear to be
seeking information on which to base taking action against individual
employees? (3) The identity of the questioner, i.e., how high was the
interrogator in the company hierarchy? (4) The place and method of
interrogation, e.g., was the employee called from work to the boss’s
office? (5) The truthfulness of the reply. These and other relevant
factors are not to be mechanically applied in each case. They serve
as a useful starting point for an assessment of the totality of
circumstances.
[Internal punctuation and numerous citations omitted.]
As the Board confirmed in Holiday Inn-JFK Airport, infra., its leading case on the topic
remains Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985). In
setting forth its totality of circumstances standard, the Rossmore Board quoted at length from a
Third Circuit decision that powerfully articulated the statutory and constitutional considerations
that led to the decision to reject any per se rule against interrogations. It is worth repeating that
Court’s analysis here:
In deciding whether questioning in individual cases amounts to the
type of coercive interrogation that section 8(a)(1) proscribes, one
must remember two general points. Because production supervisors
and employees often work closely together, one can expect that
during the course of the workday they will discuss a range of subjects
of mutual interest, including ongoing unionization efforts. To hold
that any instance of casual questioning concerning union sympathies
violates the Act ignores the realities of the workplace. Moreover, as
the United States Supreme Court recognized in NLRB v. Gissel Packing
Co., 395 U.S. 575, 89 S. Ct. 1918, 23 L.Ed.2d 547 (1969), the First
Amendment permits employers to communicate with their employees
concerning an ongoing union organizing campaign, “so long as the
communications do not contain a threat of reprisal or force or promises
of benefit.” Id. At 618, 89 S. Ct. at 1942. This right is recognized in
section 8(c) of the Act. If section 8(a)(1) of the Act deprived the
employers of any right to ask non-coercive questions of their employees
during such a campaign, the Act would directly collide with the Constitution.
What the Act proscribes is only those instances of true “interrogations”
which tend to interfere with employees’ right to organize.
Graham Architectural Products v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983). [Footnote omitted.]
Gibson testified regarding the content of his exchange with Merritt that took place on the
plant floor on March 17. He reported that Merritt approached him and stated that he had, “heard
that you was a union steward.” (Tr. 729.) Gibson told him that this could not be so, since “we
have no union in the plant.” (Tr. 729.) Gibson testified that Merritt followed this with the
observation that, “I used to work for a union, and . . . they was no good.” (Tr. 729.) At this
point in their discussion, Merritt, “asked me why—why I wanted a union in.” (Tr. 729.) Gibson
answered that it was due to his dissatisfaction with the Employer’s health insurance benefit and
attendance policies. With that, the conversation ended.
Applying the Board’s criteria to this brief exchange, I begin by noting that there was no
prior history of either employer hostility to Section 7 rights or any acts of unlawful coercion or
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discrimination. Thus, the amended consolidated complaint does not assert that this Employer
engaged in any unfair labor practices prior to this date. The record does reflect that the
Employer had expressed its opposition to the Union by a letter dated February 3. This does not
tilt the evidence toward the General Counsel’s position. As the Board has stated in this
connection:
Prior to the questioning at issue here, the Respondent did voice its
opposition to the unionization of its work force in various ways. However,
none of these statements contained any threats or promises, and they
are thus protected free speech under Section 8(c) of the Act. In these
circumstances, we do not believe that the factor of “employer
background” lends any significant support to the allegation that
the question here was coercive.
John W. Hancock, Jr., 337 NLRB 1223, 1224 (2002), enf. 73 Fed. Appx. 617 (4th Cir. 2003).
[Footnotes omitted.]
I have also considered the fact that the General Counsel alleges that the Employer
committed a variety of unfair labor practices in the weeks following this interrogation. In the first
place, as I will discuss shortly, I have concluded that the General Counsel did not meet his
burden of proving those claims. Even if I had found some or all of those alleged violations,
there is simply no logical connection between those alleged unlawful acts and Merritt’s earlier
conversation with Gibson. See, Temp Masters, 344 NLRB 1188 (2005), affd. 460 F.3d 864 (6th
Cir. 2006) (subsequent unfair labor practices are only relevant as to the background of
interrogation where there is some “relationship between the two events”). Thus, I find that the
factor of employer background does not support a conclusion of unlawful conduct by Merritt.
The next analytical factor is the examination of the content of the question or questions
that were posed to the employee. In particular, the Board holds that the type of content which
constitutes hallmark evidence of coercion is whether the questioning was designed to elicit
information “on which to base taking action against individual employees.” Rossmore House,
supra at 1117. Merritt’s question was not designed to uncover information about any individual
employees’ activities or sympathies.35 He was merely seeking to understand Gibson’s reasons
for supporting the Union.36 This factor does not justify a finding of unlawful conduct.

35 It is vital to note that Gibson testified that he was an early and prominent union organizer
at the plant and that he made absolutely “no attempt to hide it.” (Tr. 747.) As counsel for the
General Counsel correctly observe, “Gibson acknowledged that he was one of the primary
union organizers whose pro-union sympathies were visible from the outset of the organizing
campaign.” (GC Br., at p. 5.) For this reason, I conclude that the context establishes that
Merritt’s teasing remark about Gibson’s supposed appointment as a union steward was not an
attempt to gain information about any specific activity by Gibson. Both men well understood
that Gibson’s assumption of any steward’s position would have to await the outcome of the
campaign. There is certainly no possible contention that Merritt was seeking individual
information about anyone else.
36 Counsel for the General Counsel cite Jakel Motors, 288 NLRB 730 (1988), enf. 875 F.2d
644 (7th Cir. 1989) for the proposition that a question designed to reveal the reasons for an
organizing campaign is unlawful even in the absence of any coercive threats or promises.
While the trial judge made a broad statement to this effect (288 NLRB at 735), the Board
expressly declined to pass on the issue as any finding would have been cumulative to other
findings of clear-cut unlawful interrogations. (288 NLRB at fn. 2.) In my view, the judge’s
Continued
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Analysis next turns to the identity and status of the questioner. Merritt was not a high
level corporate official. He was a production supervisor, but, at the time in question, he did not
provide any direct supervision of Gibson. Furthermore, Gibson testified that the two men spoke
to each other on a daily basis and that their discussions were friendly and included joking
around with each other. As he put it, “we probably did have a good relationship.” (Tr. 746.)
While I recognize that a prior friendly relationship is not a guarantee of the absence of coercion,
in the circumstances of this case, I conclude that neither Merritt’s status in the plant nor his prior
relationship with Gibson support the General Counsel’s allegation.
The remaining factors also fail to provide evidence of unlawful interference with Gibson’s
Section 7 rights. The discussion took place on the plant floor and was very brief. It certainly did
not bear any indicia of heightened formality or other aspects of a coercive setting. Finally,
Gibson’s reply to Merritt’s question appeared to be both truthful and freely expressed. Nothing
in his reply gives rise to any inference of fear or intimidation.
On my examination of the context made with appreciation of the realities of the industrial
workplace, I find that nothing in Merritt’s statement on this occasion violated the Act. His
conduct was certainly no more problematic than the questioning of a union supporter’s wife as
to why her husband thought they needed a union in Uarco, 286 NLRB 55, 56 (1987), rev.
denied 865 F.2d 258 (6th Cir. 1988), where the Board found “nothing coercive.”37 Because he
did not pose his question in a manner that would cause a reasonable employee to feel coerced,
intimidated, or restrained in the ability to exercise Section 7 rights, Merritt’s conduct was not
unlawful.
The General Counsel also asserts the Supervisor Merritt violated Section 8(a)(1)
by threatening Gibson on March 29. As I have previously indicated, Merritt and Gibson
presented widely divergent reports about their interaction on that day. I have credited
Merritt’s version because it was logical, consistent, and corroborated by an eyewitness,
Eversole. In contrast, Gibson’s account was inconsistent and illogical.
The credible evidence establishes that the two men had a brief exchange early in
the shift regarding Gibson’s appearance in the photo of union supporters. Having been
angered by Merritt’s statement regarding that photo, some hours later Gibson took the
opportunity to leave his production line while dressed in an allergen apron. His purpose
was to confront Merritt and warn him that his statement may lead to labor relations
litigation. In response to Gibson’s heated words, Merritt chose to terminate the
confrontation by ordering Gibson to return to his work station. He warned Gibson that
_________________________
formulation would impose a per se rule in express contradiction of the fundamental principles
articulated in Rossmore House, supra, and its many progeny. I believe the Board would reject
such an approach.
37 See also, the Court’s interesting discussion of a similar instance of questioning in NLRB v.
Acme Die Casting Corp., 728 F.2d 959, 963 (7th Cir. 1984). In that case, the alleged
interrogation “was confined to a single question asked of a single worker, a question neither
tendentious nor intimidating either in content or inflection, asked casually and in a friendly
manner, and not followed up.” As the Court observed, “It would have been better had [the
employee’s] supervisor not asked him about the union, but unless questioning, however
gratuitous, can fairly be deemed coercive, it cannot be made the basis for an unfair labor
practice finding.” 728 F.2d at 963.
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his conduct rendered him subject to disciplinary action.
In evaluating whether an Employer’s statements or actions constitute an unlawful
threat of reprisal for protected activities, the Board employs the following objective
standard:
An employer violates Section 8(a)(1) by acts and statements
reasonably tending to interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. The Board employs a
totality of circumstances standard to distinguish between employer
statements that violate Section 8(a)(1) by explicitly or implicitly
threatening employees with loss of benefits or other negative
consequences because of their union activities, and employer
statements protected by Section 8(c).
Empire State Weeklies, 354 NLRB No. 91,slip op. at p. 3 (2009) [Citations and certain
internal punctuation omitted]. In this regard, the Board also has stressed that,
[I]n considering whether communications from an employer to its
employees violate the Act, the Board applies the objective standard
of whether the remark tends to interfere with the free exercise of
employee rights. The Board does not consider either the motivation
behind the remark or its actual effect.
Scripps Memorial Hospital Encinitas, 347 NLRB 52, 52 (2006) [Citation and internal
quotation marks omitted].
In applying these criteria to the events that took place on the shop floor on March
29, the parties urge sharply different interpretations. Noting that both participants in the
interaction under scrutiny agree that Gibson warned Merritt that he was engaged in
improper conduct regarding the organizational campaign, counsel for the General
Counsel argue that, “the fact that Merritt’s disciplinary threat immediately followed
Gibson’s admonition demonstrates that it was an obvious effort to intimidate Gibson
about his union activities and sympathies.” (GC Br., at p. 34.)
In contrast, counsel for the Employer contend that Merritt’s warning to Gibson
that he was subject to potential disciplinary action had nothing to do with any protected
union activity. As they explain, “it is clear that Merritt did not threaten Gibson with
discipline to discourage his Union activities. Rather, Merritt instructed Gibson to return
to his line because Gibson was violating the Employer’s well-defined policies, i.e.,
wearing an allergen apron when off the peanut butter line—a policy that Gibson was
aware of and that the Employer had consistently enforced.” (R. Br., at p. 28.)
In resolving this dispute, I find that the credible evidence establishes that, out of a
desire to confront Merritt, Gibson chose to depart from his work station while failing to
remove his allergen apron. In taking this impulsive action, he violated work rules,
particularly important food safety and contamination standards vital to the Employer’s
business process. Merritt’s subsequent threat of disciplinary action was directed toward
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this misconduct, not any protected union activity. As the Board has explained, when
evaluating an allegedly unlawful threat, “[t]he issue is what the employees who were
there would reasonably understand in the circumstances.” Miller Industries Towing
Equipment, 342 NLRB 1074, 1076 (2004). Objectively, an employee in Gibson’s
position, away from his work station in violation of food safety procedures, would
comprehend that the supervisor’s threat of disciplinary action was directed at his work-
related misconduct, not his prounion sympathies or activities. For this reason, I find that
the General Counsel has failed to meet his burden of establishing that Merritt uttered an
unlawful threat.
2. Alleged unlawful conduct by Consultant Wheeler
The General Counsel contends that the Employer’s consultant, Wheeler, made
unlawful solicitations for employees to circulate an antiunion petition and implied
promises to correct employees’ grievances during his 3 speeches to the workforce on
April 18. He is also alleged to have made such an implied promise to Employee
Dalrymple in late April or early May. Finally, he is alleged to have made another such
implied promise to Employee Gibson in late May.
Turning first to the contents of Wheeler’s speeches on April 18, I have already noted that
a large number of witnesses provided conflicting accounts of what was said. In resolving the
conflicts in these accounts, I observed that the General Counsel’s witnesses’ versions were
often marked by striking inconsistencies with their prior sworn statements. In those statements
which were given at a time more proximate to the actual events, the witnesses did not make the
key assertions that underlie the General Counsel’s claims. With a few limited exceptions, I have
credited the accounts provided by the Employer’s witnesses, including Wheeler himself.
As to the credited evidence, I conclude that at each meeting Wheeler did advise the
employees that they could manifest their opposition to the representation election by circulating
a petition to that effect and submitting the signed petition to the Union for its consideration. He
went on the explain that, if the Union were sufficiently impressed with such a demonstration of
employees’ sentiments, it could request a cancellation of the representation election. Wheeler
opined that this would delay any further representation proceedings for a period of 6 months.38
It is noteworthy that the credible evidence from attendees at each of the 3 meetings
established that Wheeler only offered this suggestion after being specifically asked at each
meeting if there were steps that antiunion employees could take to oppose the holding of the
representation election. Wheeler also took pains to explain that the Employer could not
participate in this activity and that it would have to be performed on the employees’ own time.
As the lawyers for both parties indicate in their briefs, the law governing the propriety of
an employer’s discussion of the circulation of an antiunion petition has evolved in the context of

38 As suggested by counsel for the Employer, Wheeler’s remarks appear to be consistent
with the provisions of the Board’s Casehandling Manual, Part 2, Representation Proceedings,
Sec. 1112.1(a), which provides that, “[w]here, after the . . . close of a hearing, but before the
holding of the election, the petitioning union, the sole union involved, requests timely withdrawal
of its petition, the request should be approved with six months prejudice and the election should
be canceled.” [Internal citations omitted.]
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decertification petitions in workplaces that have existing union representation. Like the lawyers,
I have not been able to find a case involving the issue in the circumstances presented here. I
suspect that this is an indication that Wheeler’s suggestion to the employees represented his
own unique approach to the Board’s representation procedures. In any event, I see no
meaningful differences that would suggest the inapplicability of the precedents arising from
decertification cases.
Relatively recently, in Corrections Corporation of America, 347 NLRB 632 (2006), the
Board has addressed the significant evidentiary factors involved in assessing a claim that an
employer unlawfully involved itself in the circulation of a decertification petition. In that case, the
Board found the employer’s involvement unlawful because:
The credited testimony establishes that the Respondent’s
communications about decertification were not prompted by
employee inquiries and that the idea of decertifying the Union
was conceived by the Respondent and then proffered to the
employees. There is no credible evidence that any employee
ever asked the Respondent how to get rid of the Union.
347 NLRB at p. 633. [Citation omitted.]
Of course, in the case before me, the situation is entirely different. Here, the Employer’s
agent was confronted with repeated questions from concerned employees who wanted to know
what steps could be taken to head off a union election. When a similar situation has arisen in a
decertification context, the Board has held that:
It is not illegal for an employer to furnish information to
employees when the employees have independently
decided to exercise their statutory right to decertify a
union and seek their employer’s advice and their
employer other than providing the requested information
does not actively encourage, promote, or assist the
employees in repudiating their collective-bargaining
representative.
Amer-Cal Industries, 274 NLRB 1046, 1051 (1985).39 [Citations omitted.]
I conclude that Wheeler’s creative, but somewhat idiosyncratic, suggestion that

39 I note that counsel for the General Counsel cite Central Washington Hospital, 279 NLRB
60 (1986), affd 815 F.2d 1493 (9th Cir. 1987), in support of their assertion that Wheeler’s
statements about a petition violated the Act. It is true that the Board affirmed the trial judge’s
conclusion that the employer had violated the Act by its involvement in the circulation of a
decertification petition. The judge made a broad statement that an employer’s instigation or
promotion of a “union repudiation document” is unlawful. However, the Board’s finding of an
unfair labor practice in that case must be seen in light of the credited evidence establishing that
the employer’s supervisor “read over the proposed decertification petition and indicated
approval, a supervisor permitted the use of the Hospital Xerox equipment to duplicate the
decertification petitions, and Respondent permitted an employee to circulate the decertification
petition on company time and property.” 279 NLRB at p. 64. Nothing remotely comparable
happened in the present case.
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employees could submit a petition to the Union aimed at demonstrating such a degree of
antiunion sentiment that the Union might decide to withdraw its petition for an election with a
resulting 6-month bar to any new election petition by the Union, was not unlawful in the
particular circumstances of his speeches. His suggestion was only made after direct inquiry as
to the possible actions that antiunion employees could take to make their views known. It was
not accompanied by any offer of support from the Employer. Employees were specifically
counseled that such a petition would have to be their own product and represent their own
independent efforts. As such, Wheeler’s statements constituted protected speech within the
meaning of Section 8(c).40
The General Counsel believes that Wheeler’s discussion of the petition also violated the
Act because it contained an implied promise of benefit if the employees rejected union
representation. I have already explained that I do not credit the bulk of the testimony claiming
that Wheeler made any express or implied promises during his 3 speeches. Those accounts
were biased, and their authors were impeached by their striking failures to mention these
supposed promises in their earlier sworn statements. The one exception involves the testimony
of Employee Asher. She was a compelling witness due to the objectivity she displayed in her
account. Thus, I credit her statement that Wheeler remarked that the 6-month delay in the
event the Union withdrew its request for an election in the face of strong antiunion sentiment
expressed in an employee petition would afford the Company a chance to “prove itself.” (Tr.
523.)
The General Counsel also cites two other examples of what he considers to be unlawful
implied promises of benefit if the workforce rejected the Union. The evidence offered in support
of these two alleged unlawful statements consisted entirely of the testimony of a single
individual in each instance. The demeanor and presentation of those two employees,
Dalrymple and Gibson, were strongly suggestive of bias. This impression was reinforced by the
contents of their overall accounts of the events at issue in this case. Thus, I found Gibson’s
descriptions of his interactions with Merritt to be distorted in a manner that was intended to
support the Union’s claims. Of greater concern, I found Dalrymple’s testimony regarding her
own admitted misconduct in submitting false claims for paid leave to demonstrate her
unreliability as an informant as to the matters involved in this litigation.41 In contrast, I found
Wheeler’s testimony to be generally credible, including his report that in conversations on the

40 Referring to recent developments in labor law, counsel for the Employer argues, “[i]f any
speech is to be protected by the First Amendment and 8(c), it must be speech that involves an
employer advising its employees of their rights protected by the Act. To find otherwise would fly
in the face of the Bill of Rights, Board law, and the Board’s recent rulemaking endeavor to force
employers to advise their employees of their rights under the Act.” (R. Br., at p. 31.)
41 Even if one were to accept the testimony by these two employees, it does not
demonstrate any violations by Wheeler. Dalrymple reported that Wheeler observed that it would
be beneficial to improve the lighting over the Oreo production line. She acknowledged that,
immediately thereafter, he disclaimed any implication that he would secure such improved
lighting, telling Dalrymple that this was “not my job.” (Tr. 207.) In any event, there was
absolutely no testimony that lighting was considered a relevant issue in the election. The
testimony was remarkably clear from numerous witnesses in showing that the issues that were
the focus of concern involved the Employer’s health insurance benefit and attendance policy.
As to Gibson, the most he claimed was that Wheeler made the same suggestion he had offered
on April 18. His argument was not that the workforce “vote no,” but only that they seek a delay
to “give the Company six months to change.” (Tr. 735.) Gibson conceded that Wheeler
specifically declined to discuss the contours of any such changes.
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shop floor, he adhered to the same positions that had been presented in his speeches on April
18.
Given my credibility findings as to the asserted promises of benefits by Wheeler, it is
only necessary to assess the legal status of one such statement, Asher’s recollection that
Wheeler opined that a 6-month delay in the election process would give the Company a chance
to “prove itself.” (Tr. 523.)
There can be no doubt that an employer’s promise of benefits may constitute a violation
of Section 8(a)(1). As the Board has explained, “[s]uch promises made in the course of urging
employees to reject unionization are unlawful because they link improved conditions to defeat of
the union.” DynCorp, 343 NLRB 1197, 1198 (2004), affd. 233 Fed. Appx. 419 (6th Cir. 2007).
Nevertheless, it is vital to examine the precise contours of any such statements and their
context. In particular, the Board has repeatedly stressed the importance of avoiding an
unrealistic application of this principle.42
Wheeler’s reference must be seen in light of the fact that his speech came within the first
year of operations under the new management of Hearthside. Beyond this, it is clear that
Wheeler did not raise any specific improvements that might flow from a postponement of the
opportunity to select union representation. His request that management be given an
opportunity to prove itself is consistent with a long line of Board precedents that have rejected
the attempt to characterize and ultimately proscribe such vague remarks by defining them as
unlawful promises of benefits.
Almost 40 years ago, the Board rejected the General Counsel’s claim that an employer’s
“promise that I will do my best” was an unlawful statement. Uarco, Inc., 216 NLRB 1, 3 (1974).
It noted that such an assertion, “does nothing that would support or reinforce employee
anticipation of improved conditions of employment that might make union representation
unnecessary.” 216 NLRB at p. 3.
In what is perhaps its leading case on this topic, National Micronetics, 277 NLRB 993
(1985), the Board considered the legality of a new supervisor’s request that employees give the
company “more time or a second chance.” 277 NLRB at p. 993. Ultimately, the Board
concluded as follows:
We find that both of these statements are too vague to rise to the
level of illegal promises of benefits or objectionable conduct. The
statements do not promise that anything in particular will happen.
Instead, the Respondent indicated a general desire to make things

42 In my own view as shaped by my experiences as a labor law judge, such realism is an
essential concomitant of the vital principles of industrial democracy. The Act’s election
mechanisms are grounded in the fundamental belief that an uncoerced electorate will possess
the intelligence, judgment, and common sense needed to make a sound collective
determination of whether to invoke the right to union representation in any given workplace. I
think it natural that such an electorate would consider the impact on the employer if the voters
should reject the union. Among the possible reactions from such an employer could certainly be
a sense of gratitude toward the workforce and a desire to foster and enhance workers’ ongoing
sense of basic satisfaction with the terms and conditions of their employment. Thus, when an
employer makes a vague request for an opportunity to prove itself, it is hardly injecting some
new idea into the mix. Such a concept is inherent in a voter’s preelection calculus.
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better. Generalized expressions of this type, asking for “another
chance” or “more time,” have been held to be within the limits of
permissible campaign propaganda. Therefore, we dismiss the
allegations that the statements were unlawful promises in violation
of Section 8(a)(1) of the Act, and we overrule the objection based
on these statements.
277 NLRB at 993. [Footnotes omitted.] See also, Flamingo Hilton Laughlin, 327 NLRB 72
(1997), enf. in pertinent part 148 F.3d 1166 (1998) (“plea for a chance to do more” was not an
impermissible promise of benefits); Noah’s New York Bagels, 324 NLRB 266, 267 (1997) (“vote
to give us a second chance to show what we can do” within the limits of permissible campaign
propaganda per National Micronetics); and, very recently, Newburg Eggs, 357 NLRB No. 171
(2011), slip op. at pp. 2-3 (in context, “give me one more chance” was not an impermissible
promise of future benefits).
Applying these precepts to Wheeler’s request for more time for Hearthside to prove itself
to the workforce, I conclude that this statement was too vague and innocuous to represent
unlawful restraint, interference, or coercion. Indeed, the remark simply stated the obvious, that
any delay in obtaining union representation would afford the Employer more time to
demonstrate that it would manage the facility in a manner that would prove to be satisfactory to
the majority of the employees. I have already indicated that such an implication arises
automatically from the circumstances involved in the election campaign and does not inject
anything into the voters’ calculus that is not already obvious to the electorate. I do not find that
Wheeler made any impermissible promises to the workforce on April 18 or thereafter.
3. The allegedly unlawful terminations of the Collins brothers
The General Counsel contends that the Employer unlawfully discriminated against Audia
and Roderic Collins by discharging them in retaliation for their union activities and sympathies in
violation of Section 8(a)(3) of the Act. In contrast, the Employer asserts that it discharged the
two men for workplace misconduct consisting of “willfully falsifying . . . company reports” and
“theft of company property.” (GC Exh. 8.) This presents a classic issue requiring analysis by
use of the Board’s methodology for assessment of claims involving alleged dual motives. That
methodology was established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-403 (1983).43
In American Gardens Management Co., 338 NLRB 644, 645 (2002), the Board provided

43 Counsel for the General Counsel make the interesting observation that, in the Wright Line
case itself, an employee was discriminatorily discharged by an employer who cited falsification
of company records as the pretextual reason for the termination. However, the credited facts in
that case showed that the Employer dispatched a manager to obtain evidence to support a
disciplinary discharge. The evidence obtained by that manager was insignificant because the
incorrect notations made by the employee did not affect the work process and, most importantly,
did not “inure[ ] to his benefit.” 251 NLRB at 1091. Beyond this, the discipline was shown to be
inconsistently harsh when compared to prior comparable situations. As will be discussed, none
of these considerations apply here. Instead, these employees filed false paperwork in order to
obtain an financial benefit that they were not entitled to receive. The employer discovered this
by accident and its disciplinary response was entirely consistent with its actions in other
situations where employees had filed false documents to receive financial benefits.
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a comprehensive summary of the Wright Line analytical process:
Wright Line is premised on the legal principle that an employer’s unlawful
motivation must be established as a precondition to finding an 8(a)(3)
violation. In Wright Line, the Board set forth the causation test it would
henceforth employ in all cases alleging violation of Section 8(a)(3). The
Board stated that it would, first, require the General Counsel to make an
initial showing sufficient to support the inference that protected conduct
was a motivating factor in the employer’s decision. If the General Counsel
makes that showing, the burden would then shift to the employer to
demonstrate that the same action would have taken place even in the
absence of the protected conduct. The ultimate burden remains, however,
with the General Counsel. [Internal punctuation and citations omitted.]
The Board’s exposition of the test goes on to outline the nature of the General Counsel’s
burden, including the requirement that four elements must be proven by a preponderance of the
evidence. These include the existence of protected activity, the employer’s knowledge of such
activity, the imposition of an adverse employment action, and “a motivational link, or nexus,
between the employee’s protected activity and the adverse employment action.” 338 NLRB at
645. [Citation omitted.] If the General Counsel sustains his burden of proof regarding these
elements, a rebuttable presumption of unlawful discrimination is created. The burden then shifts
to the employer to demonstrate that the same adverse action would have been imposed even in
the absence of the employee’s protected activity.
As to the Collins brothers, the Employer forthrightly concedes that the first three
elements of the Wright Line test are established in the record. (See, R. Br., at p. 34.) The
brothers clearly engaged in union activities which came to the attention of their employer prior to
their discharges. Of course, those discharges represented highly adverse employment actions.
The battle is joined at the issue of whether the General Counsel has met his burden of
showing that a substantial motivating factor in the Employer’s decision to fire the Collins
brothers was their participation in protected union activity and their sympathy for the Union’s
cause. Resolution of this conflict requires a wide ranging and realistic appraisal of the key
events and their surrounding context. Among the critical parameters of this evaluation are the
following considerations listed by the Board:
Proof of discriminatory motivation can be based on direct evidence or
can be inferred from circumstantial evidence based on the record as a
whole. To support an inference of unlawful motivation, the Board looks
to such factors as inconsistencies between the proffered reason for the
discipline and other actions of the employer, disparate treatment of
certain employees with similar work records or offenses, deviation from
past practice, and proximity in time of the discipline to the union activity.
Embassy Vacation Resorts, 340 NLRB 846, 847 (2003), rev. dismissed, 2004 WL 210675 (DC
Cir. 2004). [Citations omitted.]
In conducting this required analysis, I will examine the evidence relied on by the General
Counsel in support of his contentions. In addition, I will also consider the evidence adduced by
the Employer regarding its motivation. See, American Gardens Management Co., supra at fn. 5
(“the employer may submit evidence to undermine the General Counsel’s showing regarding
any of the four elements, and this evidence must also be considered in determining whether the
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General Counsel has established these four elements by a preponderance of the evidence”).
Turning first to the direct evidence on the issue of animus against the supporters of the
Union, it must be observed that the record is largely barren of credible reports of this type.
Counsel for the General Counsel can cite to only two potential examples. First, they offer the
testimony of Melinda Scott, a discharged former supervisor. She reported that she saw
Osborne and Merritt looking at the photo of union supporters, including the Collins brothers.
She claimed that she heard Osborne state that “there was going to be a lot of people out of a
job.” (Tr. 840-841.) This account was denied by Osborne and Merritt.
I did not find Scott’s demeanor, presentation, and proffered version of events to be
credible. It was apparent to me that she bore ill-will toward her former employer. It is
noteworthy that she was fired from her supervisory position for precisely the same type of
offense that was involved in the Collins’ termination. Thus, she was discharged on August 10
for falsifying her time sheet to claim that she was at work 45 minutes prior to her actual time of
arrival. (See, R. Exh. 33, p. 2.) Apart from the fact that Osborne had no decision-making role in
the termination of the Collins brothers, I do not credit Scott’s claim that she expressed the sort
of blatant animus described.
The only other direct evidence of animus cited by the General Counsel consists of
Sherman’s letter to the workforce urging that the employees reject the Union’s attempt to
organize the workplace and Merritt’s comments to employees expressing his negative view of
the Union. There is no claim that Sherman’s letter violated the Act. As to Merritt, I have already
described my conclusion that his statements and questions to employees did not constitute
violations or objectionable conduct. While I agree that these statements may be considered as
part of the context for the events under examination, they do not constitute proof of unlawful
animus as opposed to mere opposition to the attempt to organize the workforce.44 The situation
in this regard is similar to that described by the trial judge in Hanson Material Service Corp., 353
NLRB No. 10 (2008), slip op. at p. 22 (employer’s expressed opposition to the union, even when
accompanied by several relatively minor unfair labor practices, did not show the “kind of union
animus against [discharged employees] that would lead to the inference that it discharged them
for their union activities”). Such a conclusion is even more appropriate here, where the
evidence does not establish that the Employer engaged in any unlawful activity but simply
expressed its opinion against the Union’s organizing effort. Indeed, an attempt to base a finding
of unlawful animus centered on such statements of opinion would contravene the provisions of
Section 8(c).
Having concluded that there is no credible direct evidence of unlawful animus against
the Collins brothers arising from their protected activities, I have carefully considered the variety
of tools the Board uses to determine whether circumstantial evidence gives rise to an inference
of unlawful motivation. The first such tool raised by the General Counsel is the timing of the
adverse action. There is no doubt that the discharges occurred during the critical period leading
to the representation election and within a period of weeks from the time that the brothers
engaged in highly visible protected activities such as leafleting.
Although there is evidence of proximity in the timing of events, it is equally clear that the
adverse action was also close in time to the brothers’ submission of funeral leave certifications

44 As the Board has explained, such “antiunion campaign literature” should be treated as
“background evidence.” Embassy Vacation Resorts, 340 NLRB 846, fn. 15 (2003), rev.
dismissed, 2004 WL 210675 (D.C. Cir. 2004).
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that sought paid leave for attendance at a cousin’s funeral contrary to the Employer’s funeral
leave policy. In such circumstances, the Board has made its position clear:
While the employees’ union activities and the discharges did occur
within a relatively brief time period, so, too, was there a close
proximity in time between the employees’ blatant misconduct and
the Respondent’s decision to terminate them. Under these
circumstances, the factor of timing is too weak a foundation upon
which to base a finding of pretext.
Syracuse Scenery & Stage Lighting Co., 342 NLRB 672, 675 (2004).
The General Counsel next alleges what is characterized as “[g]laring evidence of
disparate treatment” of the Collins brothers when compared to other employees. (GC Br., at p.
44.) While conceding that the Employer maintains genuine preexisting work rules prohibiting
falsification of company documents and warning employees that providing false information
regarding “the terms or conditions of a leave of absence . . . [is] grounds for immediate
discharge,” the General Counsel submits that the Employer has on another occasion gone so
far as to facilitate the same sort of misconduct that formed the basis for the decision to
discharge the Collins brothers.
This rather startling claim is based entirely on the testimony of discharged former
employee, Dalrymple. As I have previously noted, in a breezy manner indicative of a lack of any
scruples regarding abuse of the Employer’s funeral leave policy, Dalrymple described two
instances where she knowingly and intentionally submitted false funeral leave certifications in
order to obtain paid leave that she was not entitled to receive. Dalrymple claimed that she had
told Osborne that her funeral leave request for an “aunt” was actually for a deceased friend.
According to her account, Osborne connived with her to authorize improper payment for
attending the friend’s funeral. When asked about this episode, Osborne provided a convincing
explanation. She testified that Dalrymple had once informed her that she had a friend who was
suffering from a terminal illness. However, when submitting her claim for paid leave for a
deceased aunt, she never told Osborne that the funeral was actually for this friend. As she
explained, “I do remember Ms. Dalrymple, you know, telling me about her friend that was so
sick, but not in relation to the funeral leave.” (Tr. 1347.) I credit Osborne’s account and reject
Dalrymple’s attempt to insinuate that Osborne actively participated in her falsification of the
request for paid leave. That account, provided by a biased witness, was inherently improbable.
In examining whether the Employer applied its existing work rule against falsification of
leave documents in a consistent manner, I have also considered the evidence submitted by that
Employer. While several management officials testified that they had never been confronted
with proof of falsification of requests for paid funeral leave in the past, they had addressed
similar violations of the same work rule.45 The documentary evidence entirely supports this
testimony. Thus, the Company’s disciplinary records show that, during 2009, three employees,
Christopher Smith, Joanna Smith, and Mike Desimone, were terminated for falsifying company
records. In each case, the offending employee submitted false claims that resulted in their

45 The Board has recognized that it may be “rare” to find cases of prior discipline that are
identical to the events involved in an alleged unlawful termination. Absent evidence of disparate
treatment, in such circumstances an employer need only show that it had an existing work rule
and “that the rule has been applied to employees in the past.” Merillat Industries, Inc., 307
NLRB 1301, 103 (1992). That is precisely the situation presented in this case.
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receipt of unemployment benefits despite the fact that they remained employed by the
Company. (See, R. Exh. 43, pp. 1, 3-4, and 5-6.) I agree with the Employer’s contention that
each of these employees was discharged for the same general type of misconduct as that
committed by the Collins brothers, i.e., the submission of false information in order to claim
financial benefits that they were not entitled to receive. As a result, I conclude that there is no
evidence of disparate treatment or deviation from past practice and probative evidence of
consistent application of disciplinary sanctions.
Finally, I think it necessary to address a larger claim that is implicit in the General
Counsel’s prosecution of this unlawful discharge claim and explicit in the self justifications
provided by the Collins brothers in their testimony. In their interactions with management
officials and in their accounts provided to me at trial, both brothers assert that they did not
knowingly claim paid funeral leave for attendance at their cousin’s funeral. There are three
reasons why I cannot accept this attempt to justify their behavior. In the first place, the evidence
strongly suggests that, at the time they submitted their certification forms, the brothers did know
that Napier was their cousin, not their uncle. In the second place, there is overwhelming
evidence that they possessed this knowledge during the course of the Company’s investigation
of their conduct and failed to come forward with the information. Finally, even if one were to
accept their version of events, it still demonstrates that they knowingly submitted a claim for
funeral leave for a deceased relative who did not fall within one of the categories of familial
proximity that authorized paid leave.
In evaluating whether the Collins brothers engaged in misconduct by intentionally
presenting a claim for attending an uncle’s funeral when they knew that the deceased was not
their uncle, I start from a consideration of what the Board terms the “inherent probabilities” of a
common human situation. Panelrama Centers, 296 NLRB 711, fn. 1 (1989). Roderic, himself,
has observed that it appears “odd . . . to mistake a relative, a placement on your family tree.”
(Tr. 168.) Indeed, in a letter he wrote to the Unemployment Commission, he admitted that it
appeared, “ridiculous . . . that someone can mistake a cousin for an uncle.” (GC Exh. 9, p. 3.)
Turning to the evidence regarding family ties, it shows that Roderic is 38 years old and
his brother, Audia, is 34. During the time in question, the brothers lived next door to each other.
Their mother, Phyllis Collins, lived with Roderic. In addition, their maternal grandmother, Mae
Willis, also lived with Roderic. The brothers worked for the same employer as their cousin,
Robin Baker. Bakers’ parents were neighbors of the Collins brothers. Audia testified that
Baker’s husband, Robert, was, “a best friend, like a brother to me.” (Tr. 239.) The overall
picture presented was of a close knit family who shared the good fortune of living near each
other. Thus, it seems unlikely that the Collins brothers would not possess knowledge of the
identities of their mother’s brothers.
Apart from the inferences to be drawn from the brothers’ living situation, there is
documentary evidence which sheds powerful illumination on the issue of their knowledge of
their familial relationship to Napier. In particular, in March 2005, Audia submitted a certification
of attendance at the funeral of Lonnie Napier. That document reported that Lonnie Napier was
Audia’s “cousin.” (R. Exh. 14, p. 12.) This fact assumes considerable significance when it is
compared with the obituary for Jimmy Napier. That document reports that Jimmy Napier was
“preceded in death by . . . two brothers: Darrell Napier and Lonnie Napier.”46 (GC Exh. 5.) I

46 The same obituary for Jimmy Napier lists his siblings. It reports that he had only one
sister, Patricia Osborne. This is additional evidence indicating that the Collins brothers would
have been aware that their mother, Phyllis Collins, was not a sibling of Mr. Napier. The
Continued
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find it very difficult, if not impossible, to credit any claim that Audia knew that Lonnie Napier was
his cousin but thought that Lonnie’s brother, Jimmy, was his uncle.
The Collins brothers contend that they had always referred to Jimmy Napier as their
“uncle.” I do not find this to be convincing evidence that they had the mistaken belief that
Napier actually was their uncle. It is entirely possible that, within the family circle, Napier was
given an honorific title of “uncle.” In itself, this does not prove that the brothers failed to realize
that he was actually a cousin.
Far more important to resolution of this question is the state of the evidence regarding
corroboration of this claim that Jimmy was always referred to within the family circle as the
brothers’ uncle. Although the record shows that various close relatives resided in the local area
where this trial was held, counsel for the General Counsel failed to produce any family members
to testify as to the familial relationship involving Napier or the descriptive term used by the
Collins brothers to refer to that gentleman. As the Board has noted, “failure to call a potentially
corroborative witness may be considered in determining whether the General Counsel has
established a violation by a preponderance of the evidence.” Stabilus, Inc., 355 NLRB No. 161,
slip op. at p.5, fn. 19 (2010).
Even more striking is the realization that the only familial evidence presented on these
issues was provided by Robin Baker, the brothers’ cousin. It will be recalled that Baker’s
parents are neighbors of the brothers and Baker’s husband was described by Audia as his “best
friend.” (Tr. 239.) Ms. Baker reported that she sees the Collins brothers “a couple times a
month.” (Tr. 1097.) Baker, who appeared to me to be scrupulous in presenting accurate
testimony despite the obvious discomfort this would cause to her and her family, provided this
key information on the topic under discussion:
COUNSEL FOR RESPONDENT: At any time, did you ever hear
Jimmy Napier referred to as Uncle Jimmy by Roderic or Audia
Collins?
BAKER: No.47
(Tr. 1093-1094.)
Based on this evidentiary record, I readily conclude that the Collins brothers knew that
Jimmy Napier was not their uncle. That record also clearly shows that the brothers understood
the terms and conditions of the Employer’s policy for granting paid and unpaid funeral leave.
Indeed, both brothers had previously completed the paperwork to obtain paid leave for the
funeral of their actual uncles. (See, R. Exh. 14, p. 8 and R. Exh. 6, p. 14.) Audia had also
submitted a request for an unpaid leave of absence to attend the funeral of a cousin. (See, R.
Exh. 14, p. 11.)
_________________________
Employer recognized this as well, reporting to the state unemployment agency that, “Jimmy
Napier’s obituary . . . does not list Phyllis Collins as a sister or sister-in-law to Jimmy, which
would be required in order for him to be Roderic’s uncle.” (GC Exh. 9, pp. 7-8.)
47 Baker also reported that, on October 31, the family held a meeting to discuss the
Employer’s investigation of the brothers’ funeral leave issue. At that meeting, Audia told the
family that, “he knowed he done wrong.” (Tr. 1095.) Interestingly, Roderic testified that the
family did have such a meeting on October 31. See, Tr. 188-189.
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In my view, the evidence establishes that the Collins brothers intentionally misstated
their relationship to Napier by affirming on the Employer’s forms that he was their uncle when
they knew that this was not true. Even if one were to view the evidence as somewhat more
equivocal, I note that the Employer’s burden in this case does not require that it establish the
brothers’ guilt. As the Board has explained,
In order to meet its burden under Wright Line, an employer need
not prove that the disciplined employee had committed the misconduct
alleged. Rather, it need only show that it had a reasonable belief that
the employee had committed the alleged offense, and that it acted on
that belief when it took the disciplinary action against the employee.
DTR Industries, 350 NLRB 1132, 1135 (2007), enf. 297 Fed Appx. 487 (6th Cir. 2008).
[Citations omitted.] It is clear that this Employer had a reasonable belief that the brothers had
falsified company documents in order to collect a monetary benefit that they were not entitled to
receive.
Continuing with the analysis of the Collins brothers’ defense of their conduct, I note that
under their own reported version of the events, there is no dispute that they failed to come
forward during the Employer’s investigation despite having learned that Napier was not their
uncle. Thus, Roderic testified that, after meeting with Griffin on April 13 about the issue, he
went home and discussed the matter with his grandmother. As he put it, “that is when she
informed me that I, indeed—that he—he—he was a cousin.” (Tr. 78.) Roderic then discussed
what he contended he had just learned with Audia. Audia confirmed this discussion, reporting
that at this point, “we realized he was not our uncle.” (Tr. 237.) He also testified that:
[W]e decided to wait until Nelson [Griffin] was going to meet with us
again . . . to let Nelson know that we had made a mistake and to—
you know, so we can make it right.
(Tr. 239.)
Despite this purported plan of action, the credible evidence shows that at the time of
their next meetings with company officials to discuss the matter, neither brother volunteered the
information regarding Napier’s true relationship to them. Streny testified that he began the
telephone meeting with Audia by advising him that they believed that “funeral leave
documentation might be falsified and that Jimmy Napier might not be your uncle.” (Tr. 1264-
1265.) Streny testified that Audia’s reply was, “that Jimmy is his uncle.” (Tr. 1265.) Thus, at a
time when Audia has clearly stated that he knew better, he continued to maintain his fictitious
story.
As to Roderic, the evidence is even more compelling. At his meeting with Griffin and
Streny, Roderic was confronted with the Napier obituary. Only after being shown this telltale
document did Roderic alter his account. As he described in his testimony, when Griffin showed
him the obituary, “that’s when I said—I went ahead and told him that I had spoke with my
grandmother and there was a mistake made, and that I was wrong.” (Tr. 85.)
Finally, in evaluating the credibility of the Collins brothers’ position in this matter, one
additional item must be addressed. While much of the testimony from the brothers centered on
their allegedly mistaken belief that Napier was their uncle, it turns out that this was not really
their actual belief. Thus, Roderic eventually testified that, at the time he submitted the funeral
leave documentation, he thought that Jimmy Napier was, “the brother of my—Mae Willis, my
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grandmother.” (Tr. 165.) To underscore the point, he conceded that he “never thought” that
Napier was a sibling of either of his parents. (Tr. 166.) [Counsel’s words.] There is no
contention that Audia took a different view of Napier’s familial relationship or contended that
Napier was something other than a great uncle. Even if the brothers had believed that Napier
was their great uncle, they did not report this belief on their leave documentation. Had they
done so, they would not have been eligible for paid funeral leave.
For all these reasons, I find that the Employer has proven that it formed a genuine and
entirely reasonable belief that the Collins brothers had intentionally submitted a false claim for
compensation that they were not eligible to receive under the funeral leave policy. Because this
conclusion was eminently reasonable, it provides significant support to the legitimacy of the
Employer’s actions and motivations.
Two other factors are worthy of mention. The Board often observes that the failure of an
employer to provide a consistent rationale for an adverse employment action is inferential proof
of a discriminatory motivation. See, for example, McClendon Electrical Services, 340 NLRB
613, 614 (2003). Here, the Employer has never deviated from its assertion that the Collins
brothers were terminated due to their falsification of the documents supporting their claim for
paid funeral leave. This is an additional indicia of trustworthiness.
As a final matter, the General Counsel suggests that, “Respondent’s insistence upon
subjecting the Collins brothers to the harshest discipline is suspect.”48 (GC Br., at p. 45.) I
disagree and am concerned that the General Counsel’s attitude comes close to an
impermissible infringement on the freedom of action of employers in our economic system. As
the Board has counseled:
An employer has the right to determine when discipline is warranted
and in what form. It is well established that the Board cannot
substitute its judgment for that of the employer and decide what
constitutes appropriate discipline. The Board’s role is only to evaluate
whether the reasons the employer proffered for the discipline were the
actual reasons or mere pretexts.
Castmatic Corp., 350 NLRB 1349, 1358-1359 (2007). [Internal punctuation and citations
omitted.] See also, Neptco, Inc., 346 NLRB 18, 20 (2005) (fact that discipline was “harsh” does
not make it per se unlawful under the Act). In this case, the discipline imposed, while severe,
was entirely consistent with the Employer’s written policies and previous practices. On the
record as a whole, I conclude that the discipline was motivated by a sincere response to the
employees’ misconduct and was not, in any significant degree, related to their union activities
and sympathies. Having considered the entire body of credible evidence, I find that the General
Counsel failed to meet his burden of demonstrating any motivational link between the
employees’ protected activity and the disciplinary actions taken against them. As a result, I will
recommend that this allegation be dismissed.49

48 This parallels Roderic’s testimony when he was asked if some discipline would have been
appropriate as a response to his behavior. He replied, “I believe so. I—we were in the wrong, it
was a mistake, but I feel like termination was very harsh.” (Tr. 174.) While entirely
understandable from his point-of-view, this statement comes close to conceding a vital point. If
the Employer was justified in imposing discipline in response to these circumstances, that factor
strengthens its claim that it acted from legitimate motives, not discriminatory animus.
49 Because the General Counsel did not meet his burden of establishing a prima facie case
Continued
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4. The allegedly unlawful termination of Peggy Jackson
The final issue that must be resolved in this case concerns the discharge of Peggy
Jackson on June 14.50 Once again, the General Counsel contends that she was terminated
from her employment because of the Company’s unlawful animus against her arising from her
union activities and sympathies. The Company asserts that Jackson was terminated through
impartial application of two of its existing disciplinary policies. First, it cites the Plant Rules and
Regulations which provide that an employee who commits the offense of “[w]illful
insubordination or defiance of authority” may be subject to “automatic discharge regardless of
the record of [that] employee.” (GC Exh. 6, p. 40.) Second, it relies on the provisions of its
progressive disciplinary policy which authorizes discharge of employees who “receive[ ] three
(3) warnings in any twelve (12) month period.” (GC Exh. 6, p. 41.) In the Employer’s view,
because Jackson refused to follow orders given her by two supervisors and violated Company
health and safety rules, both disciplinary policies were properly applied to her situation. As with
the Collins brothers, these conflicting claims require a “dual motive” analysis using the Wright
Line methodology.
As was also true regarding the Collins brothers, the Employer concedes that the first
three steps of that analysis are not at issue. (See, R. Br., at p. 34.) Jackson engaged in
protected union activities and her Employer knew of her participation in those activities. She
was obviously subjected to an adverse employment action. Once again, the ultimate issue
turns on the nature of the Employer’s motives. In assessing those motives, I will apply the same
tools and standards described with reference to the Collins’ terminations.
Turning to a brief recapitulation of the events of June 2, Jackson arrived at the facility
without wearing her required uniform. Beyond this, she chose to dress in street clothing that
was not compliant with the Employer’s mandated Good Manufacturing Practices.51 On entering
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of unlawful discrimination, there is no cause to address the final step of the Wright Line analysis.
In the interest of decisional completeness, I will observe that had it been necessary to evaluate
the Employer’s defense at that step, I would have concluded that the Employer met its burden of
demonstrating that the Collins brothers would have been discharged for falsification of records
with the intent to obtain funds that they were not entitled to receive. This adverse action would
have been imposed regardless of the Employer’s attitude toward their protected activities or
union sympathies. See, Syracuse Scenery & Stage Lighting Co., supra at 674 (even if one
were to assume that unlawful animus existed, discharge of employees who “falsified records to
secure payment for hours they did not work—and lied about the matter” was found to be lawful,
as it would have occurred regardless of such animus).
50 Unlike the other alleged unfair labor practices, Jackson’s discharge does not require
assessment as allegedly objectionable conduct that could have affected the results of the
election. Her termination did not occur until well after that event.
51 This is an important point. The General Counsel cites to the evidence that clearly
establishes that “many” employees had been permitted to wear street clothing for brief trips
between the restroom and the employees’ entrance/exit. (GC Br., at p. 50.) This is offered as
proof of disparate treatment. Close analysis demonstrates that this is not a proper inference.
As Streny and Griffin explained, management permitted employees to travel the very short
distance between the entrance and the restroom in street clothes. However, this tolerance did
not extend to street clothing that violated the Good Manufacturing Practices. Because Jackson
was wearing impermissibly short and loose clothing and open toed, high heeled shoes with
decorative stones attached, and also because she chose to travel past the restroom through a
Continued
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the production area of the plant, she elected to walk past the restroom in order to reach the time
clock. This was a distance of more than 134 feet. During her travels, she was twice accosted
by supervisors who, being struck by her highly unusual behavior, instructed her to return to the
restroom to change into suitable attire. She chose to ignore both directives. Only after clocking
in did she return to the restroom and change into her uniform.
In an example of probative circumstantial evidence, it is striking to note that each of the
two supervisors, acting independently, was so troubled by Jackson’s behavior that they made
immediate oral and written disciplinary reports. From the moment management officials
observed her conduct, through the course of other administrative proceedings, and during the
trial of this case, the rationale offered for their response to Jackson’s behavior has never
waivered. It has been articulated clearly and consistently. Just as a series of shifting rationales
suggests prevarication and pretext, the constancy and logical potency of the rationales offered
in this case support their legitimacy and sincerity.
While I have been impressed with the rationale articulated, I have carefully considered
the arguments offered to support a more sinister interpretation. As to direct evidence of
unlawful animus, I have already discussed my finding that no such credible evidence existed
through the date of termination of the Collins brothers. In the period of approximately 2 months
between that event and Jackson’s discharge, the only additional allegation of impropriety
consisted of Wheeler’s alleged statements to Gibson in a conversation asserted to have
occurred sometime in May. I have previously noted my conclusion that much of Gibson’s own
account of this discussion demonstrated that Wheeler took care to avoid any transgression of
the Act’s boundaries. As with the Collins brothers’ terminations, I find no credible direct
evidence of unlawful animus, merely a background context of lawfully expressed opposition to
the Union’s organizing campaign.
As to circumstantial evidence, I have examined the factors raised by the General
Counsel and the countervailing matters adduced by the Employer. Counsel for the General
Counsel begin their analysis by asserting that unlawful motivation may be inferred from
Jackson’s discharge within 2 weeks of the representation election. Of course, the difficulty with
this analysis is that Jackson’s discharge also took place within 2 weeks of her misconduct that
involved both violation of health and safety rules and repeated insubordination. As a result, the
circumstances are at least as compelling as those addressed by the Board in Frierson Building
Supply Co., 328 NLRB 1023, 1024 (1999), where it was observed that:
The record in this case shows nothing more than that the timing of [the
employee’s] discharge shortly after the representation election was a
coincidence. Such a coincidence, at best, raises a suspicion. However,
mere suspicion cannot substitute for proof of unlawful motivation.
[Internal punctuation, footnote, and citation omitted.] Given the severity of Jackson’s
misconduct, I cannot conclude that the timing gives rise to even such a suspicion. In my view,
the more logical inference to be drawn from the sequence of events is that the Employer
evaluated the events of June 2 involving Jackson and took disciplinary action motivated by
genuine concern about the impact of her misconduct in the workplace.
In my view, the General Counsel’s best argument that there is circumstantial evidence to
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production area to reach the time clock, her behavior fell well outside the limited tolerance of
street clothing permitted by management.
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support an inference of unlawful motive concerns the stated terms of the Employer’s handbook
regarding the imposition of progressive discipline. After listing certain offenses, including
insubordination, which may result in immediate termination regardless of an employee’s past
record, the handbook provides that other offenses “will result in a verbal warning, a written
warning, or suspension depending on the circumstances surrounding the offense.” (GC Exh. 6,
p. 41.) It goes on to state, “Any employee who receives three (3) warnings in any twelve (12)
month period may be discharged.” (GC Exh. 6, p. 41.) The General Counsel notes that the
Employer did not apply this provision in the manner in which it is expressed in the handbook.
In order to grasp the General Counsel’s point, it is necessary to outline Jackson’s
relevant past disciplinary history. This begins on November 18, 2009, when she was given
formal counseling for, “Failure to follow Instructions,” and “Defective and Improper Work.”52 (R.
Exh. 24, p. 2.) Just over 2 months later, she received a written warning for another instance of
“Defective and Improper Work.” (GC Exh. 18.) Less than 11 months later, she was issued a
3-day suspension for the same type of deficient work performance. (GC Exh. 19.) It was less
than 6 months after that discipline when the two supervisors cited her for the health, safety, and
insubordination offenses that led to her discharge.
I agree with the General Counsel that Jackson’s discharge under these circumstances
does not conform to the letter of the Employer’s progressive disciplinary policy. As Jackson,
herself, asserted to her supervisors, she had not accumulated a record of three disciplinary
offenses within 12 months of the events at issue. Despite this, I have concluded that a number
of persuasive reasons support the Employer’s position that this departure from the language of
the handbook does not constitute probative evidence of unlawful motivation. In conducting my
analysis of this issue, I have been mindful of the Board’s sensible admonition that “perfect
consistency” is not required in order to rebut a claim of pretext. Consolidated Biscuit Co., 346
NLRB 1175, 1177, fn. 14 (2006), enf. 301 Fed Appx. 411 (6th Cir. 2008).
The Employer presented a variety of evidence in order to explain the seeming
inconsistency in Jackson’s treatment under the progressive discipline policy. In particular,
Streny presented a credible explanation that was fully corroborated by reliable documentary
evidence. He described the actual and intended operation of the progressive discipline system
as follows:
If you receive discipline at a point in time, and then if you were to go
12 months from the date of your last discipline, you would—if you did
not receive any discipline in that time, the progressive discipline process
would start over. If you received a second discipline within 12 months of
the first one, it would be progressive and move to the next step. And
then, if you received another discipline within 12 months of that second
document, then it would escalate to the next level until you reach
termination level.
(Tr. 1281.) Streny then outlined the fact that Jackson had been disciplined in January 2010.
She was again disciplined in December 2010, less than a year later. Finally, her third
disciplinary sanction was applied in June 2011, much less than a year after the second event.

52 This counseling does not constitute the first link in Jackson’s chain of infractions that led
to her termination under the progressive discipline system. That chain begins with her
subsequent written warning.
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The Employer’s personnel files demonstrate that Streny’s description of the actual
application of the progressive disciplinary system was accurate. For example, the Employer
utilizes a form titled, “Performance Correction Notice,” which describes the policy in the
following language:
` ` If an employee can perform at a satisfactory level for the twelve
months following the most recent Performance Correction Notice,
s/he will restart the progressive discipline process. However, if an
employee continues to receive Performance Correction Notices,
s/he will continue to follow the next step(s) of the progressive
discipline process.
(R. Exh. 38, p. 6.) [Underlining in the original.]
This description of the process mirrors the manner in which it was applied to Jackson. In
addition, other documentary evidence demonstrates that it accurately reflects the way in which
the process was routinely applied to other employees. This was best illustrated by a chart
compiled by counsel for the Employer which lists disciplinary records for a number of different
employees in the 2 years preceding Jackson’s termination. Four of them were terminated by
application of the policy as described by Streny despite the fact that a literal reading of the
handbook would have led to a different outcome. (See, R. Br., at p. 7, based on personnel
records found at R. Exh. 44.)
On balance, I concur in counsel for the Employer’s contention that, while their client’s
policy, as described in its handbook, was inadequately expressed, “it is equally clear that the
way it has been enforced is clear and has been applied consistently with respect to Jackson.”
(R. Br., p. 42, fn. 35.) Again, it must be stressed that the Board’s role is not to judge the wisdom
of an employer’s policies and procedures or the competence with which they are expressed and
enforced, but rather to assess whether they have been applied sincerely and in furtherance of
legitimate ends or insincerely in order to disguise an unlawful motive. In this case, I conclude
that Jackson’s termination under the progressive discipline system was consistent with past
practice and motivated by a genuine intent to make an appropriate response to her serious and
repeated misconduct.
Although I have addressed the General Counsel’s argument regarding progressive
discipline in considerable detail, I must also observe that, ultimately, it would be unavailing even
if persuasive. It must be recalled that the Employer has always explained Jackson’s discharge
by reference to both the progressive system and its other written disciplinary policy that provides
for “automatic discharge regardless of the record of an employee” for offenses that include,
“[w]illful insubordination or defiance of authority.” (GC Exh. 6, p. 40.) The Employer clearly
proved that Jackson twice defied direct orders to exit the production area of the plant and
change into required clothing before returning to clock in. As the Board has held, “[e]mployees
have a statutory right to engage in union activity without interference from their employer. But,
the Act is not a shield protecting employees from their own misconduct or insubordination.”53

53 The Board cited to Guardian Ambulance Service, 228 NLRB 1127, 1131 (1977), where it
had adopted a judge’s decision finding a discharge lawful because it was made in response to
“defiance of a direct order by [a] superior . . . the type of conduct an employer cannot condone.”
I think it worthwhile to stress that the judge’s language should not be read as suggesting that an
employer is always privileged to discharge a union supporter for instances of insubordination. If
the asserted act of insubordination is merely a pretext to rid an employer of a union adherent,
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Neptco, 346 NLRB 18, 19 (2005). [Internal punctuation and footnote omitted.]
As is common in cases of this type, the parties introduced a large quantity of disciplinary
records that may be evaluated in order to assess whether the discharge reflected a consistent
application of preexisting policies and practices. The General Counsel asserts that these
records show an unduly harsh application of discipline in Jackson’s case. I do not agree. It is
abundantly clear that those records establish that the Employer responded to violations of its
health and safety rules with disciplinary sanctions. Employees were formally sanctioned for
eating and drinking in the production area, violating rules that mandate proper attire, and
possessing unauthorized objects on the production line. (See, R. Exhs. 38, 42, and 44.)
Because these infractions were addressed under the progressive disciplinary system, the
precise punishment varied, depending on the employees’ past history. Therefore, the fact that
an employee may have received a mere warning or suspension for a violation comparable to
Jackson’s health and safety infraction does not show inconsistency or inordinate severity of
punishment. Beyond this, it is again necessary to recall that Jackson chose to deliberately
ignore repeated instructions designed to ameliorate the risks associated with her health and
safety violation.54 These acts of insubordination took her conduct outside the progressive
disciplinary process and justified her termination under a different set of disciplinary rules.
In sum, the General Counsel has failed to cite any instance where an employee
engaged in a comparable pattern of both progressive disciplinary infractions and repetitive
insubordination and received a lesser sanction. When asked why he and Koplowitz decided to
terminate Jackson, Streny testified that it had nothing to do with her union activities. His stated
rationale was:
She was guilty of insubordination, defying authority of not one but two
supervisors. And also G[ood] M[anufacturing] P[ractices] compliant.
She was out of compliance with wearing a skirt and open-toed shoes
with rhinestones on them.
(Tr. 1279.) I find this rationale to be entirely accurate in describing Jackson’s actual conduct on
June 2. I credit Streny’s stated assertion that her discharge was a legitimate response to that
conduct and was not a product of animus against her union activities or sympathies. As a
result, I will recommend that this allegation be dismissed.55
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termination would violate the Act. The judge’s real point, which the Board was endorsing, was
that insubordination is such a serious example of workplace misconduct that it lends
considerable weight to an employer’s claim that the discharge was a legitimate and sincere
response to that misconduct. I find this to be true here.
54 Counsel for the General Counsel argue that the Employer issued lesser sanctions for
insubordinate conduct by Carrie Messer and Ruby Matthews. See, GC Br., at pp. 31-32. I do
not find this persuasive because Messer and Matthews engaged in negligent failures to follow
instructions. Jackson chose to make a direct and willful defiance of orders. This qualitative
difference in the degree of misconduct explains the resulting difference in the severity of
management’s response.
55 As with the Collins brothers’ terminations, I have found that the General Counsel failed to
meet his initial burden under the Wright Line analysis. However, assuming that it had been
necessary to examine the Employer’s evidence at the final step of that analysis, I would have
concluded that the Employer had met its burden of showing that Jackson’s misconduct was of a
type and severity that would have resulted in her discharge regardless of the existence of any
unlawful animus against her arising out of her union activities and sympathies.
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Conclusions of Law
1. The General Counsel has failed to meet his burden of proving that the Employer
committed any of the unfair labor practices alleged in the amended consolidated complaint.
2. The Petitioner has failed to meet its burden of proving that the Employer engaged in
any election misconduct as alleged in its objections to the election. 56
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended order and certification of election:
ORDER57
The amended consolidated complaint is dismissed.
CERTIFICATION OF ELECTION58
The objections to conduct by the Employer are overruled.
IT IS CERTIFIED that a majority of the valid ballots have not been cast for Bakery,
Confectionary, Tobacco Workers and Grain Millers International Union, Local 280, AFL-CIO-
CLC, and that it is not the exclusive representative of these bargaining unit employees.
Dated, Washington, D.C. March 1, 2012
____________________
Paul Buxbaum
Administrative Law Judge

56 By the same token, there was insufficient proof of other allegedly objectionable conduct
that had been raised by the Regional Director in his report.
57 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
58 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Report on Election may be filed with the Board in Washington, D.C., within 14 days from the
date of issuance of this Report and Recommendations. Exceptions must be received by the
Board in Washington by March 15, 2012.