Hyundai Motor Manufacturing, Alabama LLC

National Labor Relations Board - Board Decisions

Aug 20, 2018

366 NLRB No. 166 (N.L.R.B. 2018)

366 NLRB No. 166
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Hyundai Motor Manufacturing Alabama, LLC and
Richard P. Rouco. Case15–CA–173419
August 20, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On March 6, 2017, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, the Respondent filed
an answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions,

1 There are no exceptions to the judge’s dismissal of the allegation
that the Respondent threatened employees with termination for talking
about unions.
2 We agree with the General Counsel that the judge abused his dis-
cretion in narrowing the scope of the General Counsel’s subpoena
duces tecum relating to documents of the Respondent’s management
officials that pertain to their knowledge of employees’ suspected union
activity. The subpoenaed documents relate to matters in this case and
potentially deprived the General Counsel of evidence of the Respond-
ent’s antiunion animus and its knowledge of the employees’ suspected
union activities. Nonetheless, in the circumstances here, we decline to
remand the case to the judge because we find that the present record is
sufficient to find that the Respondent violated Sec. 8(a)(1) by terminat-
ing Cleckler, Howard, and Yarbrough. Members Pearce and Emanuel
find that the Respondent violated Sec. 8(a)(1) because it terminated
these employees for engaging in protected concerted activity. Members
Pearce and McFerran find that the Respondent violated Sec. 8(a)(1)
because it terminated the three employees because it believed they
engaged in such activities. Therefore, we are able to resolve these
allegations without remanding the case, and it is unnecessary for us to
pass on the other allegations for which the subpoenaed documents are
relevant, i.e., that the Respondent discharged the employees because it
mistakenly believed they assisted a labor organization and in order to
discourage employees from engaging in activities on behalf of labor
organizations. Finding these additional violations would not materially
affect the remedy.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
and to adopt the recommended Order as modified and set
forth in full below.4
We agree, for the reasons stated by the judge, that the
Respondent violated Section 8(a)(1) of the Act by termi-
nating employees Justin Cleckler, Nathan Howard, and
Nathan Yarbrough for their protected concerted activity
on December 22, 2015, when they left work at the time
on the posted work schedule instead of following a su-
pervisor’s oral instruction given to them 2 days earlier to
leave work an hour later.5 First, the judge properly re-
jected the Respondent’s claim that the employees, who
continued working and remained employed by the Re-
spondent for another 2 weeks after December 22, volun-
tarily resigned on December 22. Second, the General
Counsel presented documentary evidence that, on four
separate occasions from August 2013 through May 2016,
the Respondent had disciplined other employees—but
not terminated them—for committing the same infraction
of leaving work early without authorization. In another
instance, in September 2013, the Respondent had a dis-
cussion with an employee who left work early without
notifying a member of management, but did not take any
corrective action against him. Nonetheless, the Re-
spondent decided, without explanation, to treat Cleckler,
Howard, and Yarbrough differently.
We also agree with the judge’s finding that the Re-
spondent, through Team Relations Specialist Gregory
Gomez, violated Section 8(a)(1) by unlawfully interro-
gating Cleckler, Howard, and Yarbrough about whether
they talked with each other before they left at 2 p.m. on
December 22. See Rossmore House, 269 NLRB 1176,
1177–1178 & fn. 20 (1984), affd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985). Employers may lawfully question em-
ployees as part of a lawful investigation into facially val-
id claims of misconduct, even if the alleged misconduct
took place during the exercise of Section 7 rights, pro-
vided they do not impermissibly pry into the employees’
protected or union activity. Bridgestone Firestone South
Carolina, 350 NLRB 526, 528–529 (2007). Here, we
agree with the judge that Gomez’ question was unlawful-
ly coercive because (1) it unnecessarily delved into the
employees’ potentially protected conduct by directly

4 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language and in accordance with our
decision in Excel Container, Inc., 325 NLRB 17 (1997) (holding that
the contingent notice-mailing date in the order’s notice-posting para-
graph should correspond with the date of the first unfair labor practice).
We shall substitute a new notice to conform to the Order as modified.
5 Member McFerran finds it unnecessary to pass on whether the
employees engaged in protected concerted activity because she agrees
that the Respondent unlawfully discharged them because it believed
they did, as discussed below.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inquiring into whether they had acted concertedly; (2) the
questioning took place in the human resource representa-
tive’s office and in the presence of Group Leader Ter-
rence Brooks; (3) the interview laid the groundwork for
disciplinary action; and (4) it prompted two of the three
employees to provide an untruthful or evasive answer.
Moreover, Gomez questioned the employees about their
concerted actions even though the Respondent knew that
they shared the same objection to Brooks’ change to their
schedule, and decided to terminate the employees despite
learning through Yarbrough’s response that their early
departure was concerted.
Finally, we find, as an alternative rationale for the
8(a)(1) discharge violation, that the Respondent termi-
nated Cleckler, Howard, and Yarbrough because it be-
lieved they engaged in protected concerted activity, re-
gardless of whether they actually did so.6 See U.S. Ser-
vice Industries, Inc., 314 NLRB 30, 30–31 (1994) (quot-
ing Monarch Water Systems, Inc., 271 NLRB 558, 558
fn. 3 (1984)), enfd. 80 F.3d 558 (D.C. Cir. 1996). As
discussed above, the Respondent’s unlawful coercive
interrogation of each employee about whether they had
discussed clocking out early with one another, and Yar-
brough’s response that they had, evinces the Respond-
ent’s belief that the employees engaged in a concerted
protest. The Respondent’s belief that the employees act-
ed in concert is further shown by Brooks and Cleckler’s
interaction the morning after the employees’ 2 p.m. de-
parture. Brooks asked Cleckler why the employees had
left early and Cleckler responded by saying “we didn’t
leave early, we went by our schedule” (emphasis added).
Further, we rely on the Respondent’s human resources
department memo to its employee review committee,
which made the decision to terminate the employees,
because the memo shows, as the judge found, that the
Respondent “treated the walkout as a group action, not as
three individual acts” and “suspected there was some
degree of collusion before the walkout, rather than be-
lieving that the 3 independently decided to walk off the
job at the same time.” The memo discusses the employ-
ees’ action as a single organized decision and concludes
by referring to the employees acting in unison: “[T]he
three MTMs [maintenance team members Cleckler,
Howard, and Yarbrough] felt the written schedule took
precedence over the verbal guidance provided by Toby
[Brooks]” and “[t]he three TMs [team members] that
clocked out early did not try and get clarification . . .
before clocking out . . . .”

6 Member Emanuel finds it unnecessary to pass on whether the Re-
spondent discharged the employees because it believed they engaged in
protected concerted activity, as such finding would not affect the reme-
dy.
The facts also show that the Respondent believed the
employees were acting for their mutual aid and protec-
tion. The human resource department memo shows the
Respondent believed the employees were acting together
because they were frustrated with the schedule change.
The memo quotes Brooks’ report that “[t]he Team Mem-
bers didn’t like that Tuesday was 6:30 am-3:00 pm and
told me that wasn’t what was on the sheet on the board
. . .” and “[o]n Monday [December 21] they followed
the schedule, but on Tuesday [December 22] they chose
to work the schedule they wanted to work.” The Board
has found that employees are protected by the Act when
they refuse to work an additional hour on a single occa-
sion because of an employer’s apparent inconsistency in
its scheduled hours. See Mike Yurosek & Son, Inc., 310
NLRB 831, 831–832 (1993). Therefore, based on the
evidence above, we find that even if the employees did
not in fact act in concert to protest their schedule, the
Respondent believed they did. Accordingly, it violated
the Act by discharging the employees based on this be-
lief.7
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having

7 Applying Wright Line, we reach the same conclusion that the Re-
spondent unlawfully discharged the employees because it believed they
engaged in protected concerted activity. See Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983); U.S. Service Industries, supra, at 31. For the
reasons just discussed, regardless of whether the employees engaged in
protected concerted activity, we find that the General Counsel made a
sufficient showing to support the inference that the Respondent be-
lieved that Cleckler, Howard, and Yarbrough engaged in protected
concerted activity, and that this belief was a motivating factor in the
Respondent’s decision to terminate them. We find animus towards
employees’ protected concerted activity based on the contemporaneous
unlawful interrogation and on the Respondent’s disparate treatment of
these employees compared to other employees who had left work early,
as discussed above. See Advanced Masonry Assoc., LLC d/b/a Ad-
vanced Masonry Systems, 366 NLRB No. 57, slip op. at 3 (2018) (dis-
parate treatment evidence of animus); Bates Paving & Sealing, Inc.,
364 NLRB No. 46, slip op. at 3 (2016) (contemporaneous unfair labor
practices evidence of animus). Finally, we find that the Respondent
failed to show that it would have terminated the employees in the ab-
sence of its belief that they had engaged in protected concerted activity.
In particular, the Respondent did not show why it terminated these
employees, but not others, for leaving work early. Further, the Re-
spondent did not provide any other reason that would lead us to believe
that it would have discharged the employees absent its belief in their
protected concerted activity. For instance, the employees’ disciplinary
history, which varied greatly, does not explain their discharges, and we
agree with the judge that the employees, who continued working and
remained employed by the Respondent for another 2 weeks after De-
cember 22, did not voluntarily resign on December 22.
HYUNDAI MOTOR MANUFACTURING, ALABAMA, LLC 3
found that the Respondent unlawfully terminated Justin
Cleckler, Nathan Howard, and Nathan Yarbrough, we
shall order the Respondent to offer them reinstatement
and to make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). We shall
also order the Respondent to compensate Nathan Yar-
brough, Nathan Howard, and Joseph Cleckler for their
search-for-work and interim employment expenses re-
gardless of whether those expenses exceed interim earn-
ings. King Soopers, Inc., 364 NLRB No. 93, slip op. at
1 fn. 2 (2016), enfd. in pertinent part 859 F.3d 23 (D.C.
Cir. 2017). Search-for-work and interim employment
expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
Finally, we shall require the Respondent to compen-
sate Justin Cleckler, Nathan Howard, and Nathan Yar-
brough for the adverse tax consequences, if any, of re-
ceiving a lump-sum backpay award, and to file with the
Regional Director for Region 15, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar year. AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, Hyundai Motor Manufacturing Alabama,
LLC, Montgomery, Alabama, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for engaging in protected concerted activi-
ty.
(b) Coercively interrogating employees about their
protected concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Justin Cleckler, Nathan Howard, and Nathan Yarbrough
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed.
(b) Make Justin Cleckler, Nathan Howard, and Nathan
Yarbrough whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(c) Compensate Justin Cleckler, Nathan Howard, and
Nathan Yarbrough for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and file
with the Regional Director for Region 15, within 21 days
of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the back-
pay awards to the appropriate calendar years for each
employee.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges,
and within 3 days thereafter, notify Justin Cleckler, Na-
than Howard, and Nathan Yarbrough in writing that this
has been done and that the discharges will not be used
against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Montgomery, Alabama facility copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees and former employees employed by the Re-
spondent at any time since December 23, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 20, 2018

______________________________________
Mark Gaston Pearce, Member

______________________________________
Lauren McFerran, Member

______________________________________
William J. Emanuel, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected concerted activity.
WE WILL NOT coercively interrogate you about your
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, Within 14 days from the date of the Board’s
Order, offer Justin Cleckler, Nathan Howard, and Nathan
Yarbrough full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
WE WILL make Justin Cleckler, Nathan Howard, and
Nathan Yarbrough whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest, and WE WILL also
make such employees whole for reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL compensate Justin Cleckler, Nathan Howard,
and Nathan Yarbrough for the adverse tax consequences,
if any, of receiving lump-sum backpay awards, and WE
WILL file with the Regional Director for Region 15, with-
in 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating
the backpay awards to the appropriate calendar years for
each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges, and WE WILL, within 3 days thereafter,
notify Justin Cleckler, Nathan Howard, and Nathan Yar-
brough in writing that this has been done and that the
discharges will not be used against them in any way.

HYUNDAI MOTOR MANUFACTURING ALABAMA,
LLC

The Board’s decision can be found at
www.nlrb.gov/case/15-CA-173419 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.

Andrew T. Miragliotta, Esq., for the General Counsel.
Marcel L. Debruge and Michael L. Lucas, Esqs. (Burr and
Furman, LLP), of Birmingham, Alabama, for the Respond-
ent.
Richard P. Rouco, Esq. (Quinn, Conn, Weaver, Davies & Rou-
co, LLP), of Birmingham, Alabam), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Montgomery, Alabama on January 23 and 24,
2017. Richard P. Rouco, an attorney, filed the initial and
HYUNDAI MOTOR MANUFACTURING, ALABAMA, LLC 5
amended charges on April 7, April 21, and May 25, 2016. In
those documents he alleged that Respondent had terminated
Nathan Howard, Justin Cleckler,1 and Nathan Yarbrough on
January 11, 2016, because they engaged in protected concerted
activity and/or union activity.
The General Counsel issued the complaint on July 29, 2016.
In it he alleged Respondent terminated Howard, Cleckler and
Yarbrough in violation of Section 8(a)(1) because it believed
that the three engaged in protected concerted activity and be-
cause it mistakenly believed they had assisted a labor organiza-
tion in violation of Section 8(a)(3) and (1). The General Coun-
sel also alleges that Respondent, by Group Leader Terrence
“Toby” Brooks, violated Section 8(a)(1) by threatening em-
ployees with termination for talking about unions. Further it
alleges that Team Relations Specialist Gregory Gomez illegally
interrogated employees about the protected concerted activities
of themselves and others.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, manufactures automobiles at a
very large factory located just south of Montgomery, Alabama.
It annually sells and ships goods valued in excess of $50,000
from this facility to points outside of Alabama. It also annually
purchases and receives goods at the Montgomery plant which
are valued in excess of $50,000 directly from points outside of
Alabama. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent’s discharge of Howard, Cleckler and Yarbrough
Nathan Howard, Justin Cleckler, and Nathan Yarbrough
were maintenance employees in the paint shop at the Mont-
gomery plant. Much of the painting work is performed by ro-
bots which are serviced by the maintenance employees. Re-
spondent has 4 maintenance crews in the paint shop which
work different schedules. Howard, Cleckler, Yarbrough, Leva-
do Lawson, and Robert Steele were the 5 members of the D
shift crew. They normally worked Friday, Saturday, Sunday
and Monday from 6 a.m. to 4:30 p.m.2
Production of automobiles at the Montgomery facility stops
for maintenance work twice a year. One of these shutdowns
normally occurs in the Christmas to New Year timeframe. In
late November 2015, Soladine Harris, the paint shop mainte-
nance manager, posted a work schedule for the shutdown peri-
od. He posted a revised schedule in early December which
indicated that Tuesday, December 22, and Wednesday Decem-
ber 23 would be production days and that the shutdown would
start on Thursday, December 24. According to this schedule,

1 Cleckler’s first name is Joseph, but he goes by Justin.
2 Howard had a slightly different schedule, 0400 to 2:30 p.m.
the D shift crew was to be working from 6 a.m. to 2 p.m. from
December 22 through Saturday January 2, 2016.3
On December 6 & 7, 2015, Toby Brooks, a Group Leader on
the day shift,4 had each D crew member sign a form acknowl-
edging that they would be working day shift hours during this
period. On Sunday, December 20, Brooks informed all the D
shift members that they were to clock in at 6:30 a.m. instead of
6 and clock out at 3 p.m. instead of at 2 p.m. on Tuesday De-
cember 22. He told this to each of the crew members individu-
ally.
Several responded that the printed schedule still indicated
they were to work from 6 a.m. to 2 p.m. Changes to the posted
schedule are normally made by Soladine Harris, not Brooks.
Brooks did not inform Harris, who is his manager, that he was
telling the D shift to work a different schedule. None of the
three alleged discriminatees made any effort to clarify their
conflicting schedules with Harris or anybody else, prior to
Wednesday, December 23.
On December 22, all 5 of the D crew members clocked in at
6, which was consistent with the printed schedule, not Brooks’
oral instructions. Sometime afterward, Howard, Yarbrough and
Cleckler discussed the fact that the written schedule had not
been changed (Tr. 168).5 At 2 p.m., Cleckler, Howard and
Yarbrough clocked out and left the plant, also consistent with
their printed schedule, but inconsistent with Brooks’ orders. At
about 2:30 Steele and Lawson, the other members of the D shift
crew, came to Brooks and asked where the rest of the crew had
gone. Brooks told Steele and Lawson that they must work until
3. They did so.
The next morning, Brooks asked Cleckler why the 3 left
work early.6 Cleckler responded that the employees did not
leave early; they had worked in accordance with their printed
schedule. He then went to the office of Gregory Gomez, a team

3 It appears that not every D shift employee was scheduled to work
every day during this period.
4 Brooks is a statutory supervisor.
5 Although Nathan Howard told Gregory Gomez that he did not talk
to Cleckler and Yarbrough beforehand, Gomez’s question and How-
ard’s answer are ambiguous. His answer indicates that there was no
discussion between Howard, on the one hand, and Cleckler and/or
Yarbrough immediately before clocking out. I conclude that Howard’s
testimony is not inconsistent with Yarbrough’s testimony, which I
credit. Moreover, to the extent there is a conflict between the testimony
of Yarbrough and Howard, Yarbrough’s testimony is inherently more
probable, Coeburn Garment Co., 276 NLRB 1481, fn. 1 (1985).
In this regard, Respondent’s brief at p. 19, par. 31, is inaccurate in
characterizing Nathan Yarbrough’s testimony at Tr. 168, lines 13–23.
Yarbrough was asked what time he reported on December 22. Then
he was asked if he saw other D shift employees when he clocked in.
Next he was asked, “On that day, did you discuss with any cowork-
ers what time you would be clocking out?
Sometime during the day, me, Justin, and Nathan talked about the
written schedule on the board not being changed, still saying 6 to 2 p.m.
Yarbrough’s testimony is consistent with what he told Gomez on
December 23, 2015.
6 Yarbrough and Cleckler testified that Brooks’ inquiry was
couched in the plural, i.e., why did “we” leave early. Howard testified
that Brooks asked why he left early.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relations representative, who was assigned to the paint shop.7
Cleckler raised the inconsistency between the printed schedule
and Brooks’ orders. Asking checking with Brooks, Gomez
contacted his superiors in team relations. Barry Jackson, an
assistant manager, who is Gomez’s immediate superior, in-
structed him to write up a series of questions and interview
Cleckler, Howard, and Yarbrough separately. Gomez also
interviewed Toby Brooks who was present when Gomez inter-
viewed the three alleged discriminatees on December 23.
Brooks told Gomez that, “the team members didn’t like that
Tuesday was 6:30-3 pm and told me that wasn’t what was on
the sheet on the board and I explained to them that the schedule
on the board reflected the shutdown schedule and they would
start working 6 am -2 pm on Wednesday, when the shutdown
officially started.” (GC Exh. 5(a).)
Gomez asked Howard, Yarbrough and Cleckler 7 identical
questions (GC Exh. 5(a); R. Exh. 7) and wrote down the an-
swers given by the three alleged discriminatees. They each
signed a sheet with the answers recorded by Gomez. Gomez
asked when Brooks discussed the written schedule versus his
guidance. Cleckler answered that Brooks told him about the
December 22 schedule on Sunday, December 20. Further he
told Gomez, “I argued about the written schedule verses Toby’s
guidance. Nothing was said after that discussion.” (GC 5(a), p.
3.)
When asked if, “you and Nathan Howard and Nathan Yar-
brough discussed leaving at 1400 before you left” (Exh. R-7),
Cleckler gave the nonresponsive answer that he had pointed out
to Brooks that the schedule said 6 to 2.
Yarbrough’s response to the identical question concerning
communication with Howard and Cleckler before clocking out,
was, “Yes, we decided to follow the written guidance.” How-
ard’s answer was, “I did not talk to them beforehand. I just
clocked out.”
On December 28, 2015, Gomez submitted his typed report to
assistant manager Barry Jackson. Cleckler and Yarbrough
continued to work doing their normal duties until January 11,
2016. Howard worked until January 4, when he went on medi-
cal leave for shoulder surgery.
On January 11, 2016, Respondent gave each of the 3 em-
ployees an identical termination letter stating that pursuant to
Respondent’s policies and handbook, each one had voluntarily
resigned their employment by leaving at 2 p.m. on December
22, 2015. (GC Exhs. 7, 9, and 10).
On January 14, Cleckler sent an email to Respondent in the
nature of an appeal of his discharge (R. Exh. 11). He received
no response (Tr. 130).
Neither Gomez, nor Brooks nor Soladine Harris played any
role in the decision to terminate Cleckler, Howard and Yar-
brough. This decision was made by an employee review com-
mittee composed of higher level managers. There is no evi-
dence in this record regarding the deliberations of that commit-
tee and no evidence that the committee considered anything
other than the report prepared by Gomez and Barry Jackson’s
summary of that report. The committee clearly treated the 3 as

7 Team Relations is part of Respondent’s human resources opera-
tion.
a group. There is no indication that any consideration was
given to the disciplinary records of the 3; Cleckler (no prior
discipline); Yarbrough (1 prior counseling for clocking in ear-
ly) and Howard (11 minor disciplines and 1 major discipline).
Analysis
There is no evidence that any of the alleged discriminatees
engaged in any union activity or that any of Respondent’s man-
agers suspected that any of them did so. However, some of
Respondent’s managers were aware of union efforts to organize
the plant as early as Thanksgiving 2015. Since Toby Brooks
was aware of union activity by then (Tr. 334), I conclude other
managers were aware of this as well.
In light of the lack of union activity on the part of Howard,
Cleckler and Yarbrough, the issue in this case is whether they
engaged in protected concerted activity by walking off the job
at 2 p.m. on December 22, 2015, and/or whether Respondent
believed they did so.
As a preliminary matter, I reject Respondent’s contention
that the 3 voluntarily resigned. They had no intention of aban-
doning their jobs as evidenced by the fact that they reported for
work on time on December 23 and worked their assigned hours
and performed their assigned duties until January 11, 2016, in
the case of Cleckler and Yarbrough and until January 4, in the
case of Howard. The 3 didn’t resign, regardless of what Re-
spondent’s handbook says (GC Exh. 3, p. 00035), Respondent
fired them.8 Indeed, Respondent’s rules would lead one to the
conclusion that any protected strike constitutes a voluntary
resignation.
Section 8(a)(1) provides that it is an unfair labor practice to
interfere with, restrain or coerce employees in the exercise of
the rights guaranteed in Section 7. Discharging an employee
because they engaged activity protected by Section 7 is a viola-
tion of Section 8(a)(1).
Section 7 provides that, “employees shall have the right to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection . . .
(Emphasis added)”
In Meyers Industries (Myers 1), 268 NLRB 493 (1984), and
in Meyers Industries (Myers 11) 281 NLRB 882 (1986), the
Board held that “concerted activities” protected by Section 7
are those “engaged in with or on the authority of other employ-
ees, and not solely by and on behalf of the employee himself.”
However, the activities of a single employee in enlisting the
support of fellow employees in mutual aid and protection is as
much concerted activity as is ordinary group activity.
Additionally, the Board held in Amelio’s, 301 NLRB 182
(1991), that in order to present a prima facie case that an em-

8 Cleckler’s unanswered email to Respondent after his termination,
R. Exh.-11, is further evidence that the discriminatees did not intend to
resign. It also establishes that Respondent’s Open Door Policy, GC
Exh. 3, p. HMMA 00046-47, is in no way the equivalent of a collec-
tively bargained grievance procedure. Thus, the fact that the 3 discrim-
inatees did not avail themselves of the Open Door Policy, does not,
contrary to Respondent’s assertion at p. 35 of its brief, weigh against
finding their walkout to be protected.
HYUNDAI MOTOR MANUFACTURING, ALABAMA, LLC 7
ployer has discharged an employee in violation of Section
8(a)(1), the General Counsel must establish that the employer
knew of the concerted nature of the activity.
I find that the walkout by Howard, Cleckler, and Yarbrough
meets all the criteria of protected concerted activity. They
walked out of the plant at the same time for the same reason,
the oral change in their working hours for December 22.9 The
change in their hours is a working condition subject to Section
7, and indeed is specifically mentioned in Section 9(a) in set-
ting forth the authority of a collective-bargaining representa-
tive. Brooks, a supervisor and agent of Respondent, knew be-
forehand that the D shift crew was unhappy with the change
and understood why they left early regardless of the fact that it
was not articulated to him on December 22. They were not
required to make a specific demand beforehand that their work
hours conform to Respondent’s printed schedule in order for
their walkout to be protected, Washington Aluminum v. NLRB,
370 U.S. 9, 14–15 (1962); Polytech Inc., 195 NLRB 695
(1972).
Polytech, supra, was decided on very similar facts to the in-
stant case. Five unrepresented employees walked off the job at
the same time in contradiction of the direct orders of their em-
ployer. These employees expressed their unwillingness to work
overtime to the employer individually, not in a group setting.
Mike Yurosek & Sons, Inc., 310 NLRB 831 (1993); 306
NLRB 1037 (1992), was also decided on similar facts. The
employees in that case punched out at the same time in contra-
vention of their supervisor’s orders to work an extra hour com-
pared to a prior schedule.
As noted previously, the Board in Myers Industries, set forth
the test for concerted activities in the disjunctive; “engaged in
with or on the authority of other employees.” Thus, even if the
3 employees walked off the job together without prior commu-
nication, their conduct was concerted. Also, it is important to
note that Respondent treated the walkout as a group action, not
as three individual acts (GC Exh. 5), Mike Yurosek & Sons,
Inc., supra.
Moreover, as stated before, I find that on December 22, the
three did discuss the fact that the written schedule had not been
changed. Also, I infer that Respondent suspected there was
some degree of collusion before the walkout, rather than believ-
ing that the 3 independently decided to walk off the job at the
same time. If that were not the case, Gomez would not have
asked each one if they had talked to others before punching out.
I give no weight to the answers given by the alleged discrim-
inatees to questions posed by Respondent’s counsel as to
whether they were protesting anything or going on strike. Em-
ployees’ subjective characterization of their actions is not de-
terminative in the Board’s objective analysis of whether the
employee has engaged in protected concerted activity, Mike

9 The Board in Electromec Design & Development Co., 168 NLRB
763, 771 (1967), cited by Respondent at page 25 of its brief, adopted
the following conclusion of the Judge, “That the walkout was the result
of concerted action is not seriously disputed. The very fact that the
men all gathered at the time clock at exactly 11:22 a.m. and waited
until exactly 11:24 a.m. to punch out exactly 5 hours from the begin-
ning of the shift was enough, without more, to establish the fact that the
action was concerted.”
Yurosek & Sons, Inc., 310 NLRB 831, 832 (1993). It is abso-
lutely clear that the employees in this case left because they
were unhappy with the oral change to their schedule and that
Respondent knew that. Viewed objectively, their actions were
a work protest and a strike. In conclusion, I find that Respond-
ent violated Section 8(a)(1) in terminating Howard, Cleckler,
and Yarbrough on January 11, 2016.
Alleged Threat by Toby Brooks (complaint paragraph 6)
Nathan Howard testified that on December 23, he argued
with Toby Brooks as to whether he clocked out earlier than he
was supposed to. Howard then testified that he said that, “if we
had a union up in here this kind of stuff would be over with by
now” (Tr. 218, 244). According to Howard, Brooks replied, “I
told you don’t say the word union in this plant. It will get you
fired.” Brooks denied that this exchange ever took place (Tr.
315–316). I credit Brooks and dismiss this complaint allega-
tion. Howard’s bringing up a union in this context strikes me
as very contrived since their dispute concerned whether Brooks,
rather than Soladine Harris, had authority to change the written
work schedule. Whether Respondent was unionized does not
appear to me to have any relationship to what Howard and
Brooks were discussing.
Alleged Illegal Interrogation by Gomez
(complaint paragraph 7)
Gregory Gomez interviewed Howard, Yarbrough and Cleck-
ler on December 23 and asked each one of them 7 identical
questions, including whether they talked to each other before
walking off the job at 2 p.m. Whether an inter-
view/interrogation violates Section 8(a)(1) of the Act depends
upon whether it reasonably tends to restrain or interfere with
employees’ exercise of their rights under Section 7 of the Act,
Spartan Plastics, 269 NLRB 546 (1984).10 The Board also
regularly applies the “Bourne” factors in determining whether
questioning is coercive. These factors are (1) the background
(i.e., hostility and discrimination; (2) Nature of the information
sought, e.g., seeking a basis for disciplinary action; (3) Place of
the Questioner in the company hierarchy; (4) Place and Method
of Interrogation and (5) the Truthfulness of the replies.
While I find that Respondent had a legitimate interest in
finding out the circumstances under which Howard, Yarbrough,
and Cleckler left work at 2 p.m., there was no legitimate reason
for Gomez to ask whether they had consulted each other, a
question which delved into protected conduct. Moreover, the
circumstances of the inquiry were likely to be intimidating in
that the discriminatees could well have viewed the interview by
Gomez in his office, in the presence of Brooks, as laying the
groundwork for disciplinary action—which it was in fact. In-
deed, the subject of Gomez’s report to his superiors, “Alleged
Insubordination and Leaving Without Authorization,” estab-
lishes that Gomez’s interviews were seeking a basis for disci-
plinary action (Exh. GC-5(a)). The fact that Gomez researched
the disciplinary records of the 3 is further evidence of this fact.

10 This rule is also enunciated in Rossmore House, 269 NLRB 1176
(1984), rejecting a per se rule regarding questioning employees about
their union sympathies, particularly when they openly support unioni-
zation.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Moreover, Howard may well have thought that an affirma-
tive answer to the question about discussions amongst the 3
would get him and/or Cleckler and Yarbrough into trouble.
This is relevant not only to the question of whether the ques-
tioning was coercive but also my conclusion that Howard’s
answer is not a basis for discrediting Yarbrough’s testimony to
the contrary. Cleckler’s evasiveness in answering the question
is also evidence of its coercive nature.
In sum I find the inquiry into the discussions between the
discriminatees was coercive and that Respondent, by Gomez,
violated Section 8(a)(1) in making that inquiry, E.B. Malone,
Corp., 273 NLRB 78, 81 (1984).11
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act in dis-
charging Justin Cleckler, Nathan Yarbrough, and Nathan How-
ard.
2. Respondent, by “Toby” Brooks, did not violate the Act or
threaten Nathan Howard as alleged.
3. Respondent, by Gregory Gomez, violated the Act by un-
lawfully interrogating Justin Cleckler, Nathan Yarbrough, and
Nathan Howard.
REMEDY
The Respondent, having discriminatorily discharged em-
ployees, must offer them reinstatement and make them whole
for any loss of earnings and other benefits. Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). Re-
spondent shall compensate these employees for their search-
for-work and interim employment expenses regardless of
whether those expenses exceed their interim earnings, comput-
ed as described above.
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatees
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB 518 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended12
ORDER
The Respondent, Hyundai Motor Manufacturing Alabama,

11 At p. 46 of its brief, Respondent states that the charge does not
contain any details about alleged interrogations and that Respondent
can only guess that the General Counsel is referring to the conversa-
tions of Gomez and Brooks with the discriminatees. The second
amended charge, filed on May 25, 2016, alleges that on December 23,
2015, Respondent, through Gregory Gomez, interrogated employees
about their protected concerted activities. The complaint repeats this
allegation in par. 7.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
LLC, Montgomery, Alabama, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for engaging in protected concerted activity.
(b) Interrogating employees concerning their communica-
tions regarding protected subjects.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Justin Cleckler, Nathan Howard, and Nathan Yarbrough full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed.
(b) Make Justin Cleckler, Nathan Howard and Nathan Yar-
brough whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the man-
ner set forth in the remedy section of the decision.
(c) Compensate Justin Cleckler, Nathan Howard, and Nathan
Yarbrough for the adverse tax consequences, if any, of receiv-
ing a lump-sum backpay award, and file a report with the So-
cial Security Administration allocating the backpay award to
the appropriate calendar quarters.
(d) Compensate these employees for their search-for-work
and interim employment expenses regardless of whether those
expenses exceed their interim earnings.
(e) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharges
and within 3 days thereafter notify Justin Cleckler, Nathan
Howard, and Nathan Yarbrough in writing that this has been
done and that the discharge will not be used against them in any
way.
(f) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its
Montgomery, Alabama facility copies of the attached notice
marked “Appendix”.13 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
HYUNDAI MOTOR MANUFACTURING, ALABAMA, LLC 9
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since January 11, 2016.
(h) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. March 6, 2017

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT discharge or otherwise discriminate against
any of you for engaging in protected concerted activity, includ-
ing protesting or complaining about your wages, hours, and/or
other terms and conditions of your employment.
WE WILL NOT question you about communications with other
employees about protected subjects.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer
Justin Cleckler, Nathan Yarbrough, and Nathan Howard full
reinstatement to their former jobs or, if those jobs no longer
exists, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed.
WE WILL make Justin Cleckler, Nathan Yarbrough, and Na-
than Howard whole for any loss of earnings and other benefits
resulting from their discharges, less any net interim earnings,
plus interest compounded daily.
WE WILL compensate Justin Cleckler, Nathan Yarbrough,
and Nathan Howard for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file a report
with the Social Security Administration allocating the backpay
award to the appropriate calendar quarters.
WE WILL compensate Justin Cleckler, Nathan Yarbrough,
and Nathan Howard for their search-for-work and interim em-
ployment expenses regardless of whether those expenses ex-
ceed their interim earnings.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Justin
Cleckler, Nathan Yarbrough, and Nathan Howard and WE WILL,
within 3 days thereafter, notify them in writing that this has
been done and that the discharge will not be used against them
in any way.

HYUNDAI MOTOR MANUFACTURING ALABAMA, LLC

The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/17-CA-173149 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.