SKD Jonesville Division L.P.

National Labor Relations Board - Board Decisions

Sep 10, 2003

340 N.L.R.B. 101 (N.L.R.B. 2003)

SKD JONESVILLE DIVISION L.P. 101
SKD Jonesville Division L.P. and Pamela J. Cole.
Case 7–CA–42244
September 10, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND SCHAUMBER
On March 24, 2000, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed a brief in response to the General
Counsel’s exceptions.
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 exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by interrogating Pamela Cole
about her union activities, threatening her with unspeci-
fied reprisals if she engaged in such activities, and creat-
ing an impression that her union activities were under
surveillance. The complaint further alleges that the Re-
spondent violated Section 8(a)(1) by warning Cole not to
speak to other employees about work-related subjects,
threatening her with discipline and discharge if she failed
to heed that warning, and placing her on probation. The
judge recommended that the complaint be dismissed in
its entirety. In his exceptions, the General Counsel ar-
gues that the Board should find all of the violations.
For the reasons discussed below, we agree with the
General Counsel that the Respondent violated Section
8(a)(1) by threatening Cole with unspecified retaliation if
she engaged in union activities and by warning her in
writing not to speak to her fellow workers about work-
related matters, on pain of discipline or discharge. How-
ever, we agree with the judge that the Respondent did not
violate the Act in any other respect.2

1 The General Counsel has implicitly excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance 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.
2 As explained in her separate opinion, Member Liebman would also
find that the Respondent unlawfully interrogated Cole and created the
impression that her union activities were under surveillance.
1. Kevin Varney’s statements to Cole
As the judge found, Cole worked for the Respondent
from March 1994 until August 1999. In 1995, she was
openly and actively involved in an unsuccessful organiz-
ing campaign for the United Auto Workers. There is no
evidence that the Respondent committed any unfair labor
practices related to the 1995 campaign.
In early 1999,3 a number of employees asked Cole to
contact the UAW to begin another organizing effort. In
mid-February, Kevin Varney, Cole’s supervisor, called
her into his office. Jeff Hamilton, another rank and file
employee, was also in the office. Cole testified, without
rebuttal, as follows:
Varney said he heard that I was going to organize . . .
that the employees wanted me to organize a union and I
told him no, I wasn’t getting involved, and then they
were talking, him and Jeff Hamilton . . . about people
on Workmen’s Comp, that they were low life losers
and . . . Jeff Hamilton said that . . . Varney should fire
them all and Varney said he would if he could, and
then he told me that it wasn’t in my best interests to be
getting involved with the union.
The General Counsel contends that, by making those
statements, Varney unlawfully interrogated Cole about
her union activities, threatened to retaliate against her for
engaging in such activities, and gave the impression that
her protected activities were under surveillance. The
judge rejected each of those contentions.
Contrary to the judge, we find that Varney unlawfully
threatened Cole with retaliation if she took part in union
organizing activities. Thus, Varney told Cole that “it
wasn’t in [her] best interests to be getting involved with
the union.” Unlike the judge, we find no indication in
that statement that Varney was merely giving an opinion
that the Respondent’s employees did not need a union.
The statement was made following a reference to dis-
charging other workers who had exercised their legal
rights. It was not phrased as an opinion by merely sug-
gesting that the employees would not benefit from a un-
ion; rather, it strongly implied that Cole, personally,
would be worse off if she was “involved” with a union.
Thus, Cole would reasonably have interpreted Varney’s
remark as a threat that the Respondent would retaliate
against her in some unspecified way if she was involved
with the union.
The Board has found similar nonspecific threats to vio-
late Section 8(a)(1). Thus, in Keller Ford, 336 NLRB
722 (2001), enfd. 69 Fed. Appx. 672 (6th Cir. 2003), a
supervisor unlawfully advised an employee not to talk to
other employees about insurance copayments, because it
3 Henceforth, all dates refer to 1999 unless otherwise stated.
340 NLRB No. 11
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
could be “hazardous to [his] health.” In Long Island
College Hospital, 327 NLRB 944, 945 (1999), a supervi-
sor unlawfully told employees to proceed with caution in
taking a work related issue to the union, because one of
the employees was getting an unfavorable reputation
with management. Consistent with those decisions, we
find that Varney’s threat of unspecified reprisals violated
Section 8(a)(1).
However, we affirm the judge’s finding that Varney’s
statements did not constitute unlawful interrogation. At
the outset, we do not believe that there was an interroga-
tion at all. Unlike our colleague, we do not agree that
Varney’s statement (regarding what he had heard about
Cole’s union activity) was an unlawful question about
whether Cole was prounion. Indeed, as noted above,
Cole was an open adherent of the Union. In addition,
contrary to our colleague, the evidence does not establish
that Varney intended a question.
Further, even if Varney’s remark was a question, we
do not believe that it was a coercive interrogation. As
the judge stated, the test for whether an interrogation
violates Section 8(a)(1) is whether, under all the circum-
stances, it reasonably tends to interfere with, restrain, or
coerce employees in the exercise of their Section 7
rights. Rossmore House, 269 NLRB 1176, 1177 (1984),
enfd. sub nom. Hotel & Restaurant Employees Local 11
v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Sunnyvale
Medical Clinic, 277 NLRB 1217, 1218 (1985). Among
the factors to be considered are the background of the
questioning, the nature of the information sought, the
identity of the interrogator, and the place and method of
the questioning. Rossmore House, 269 NLRB at 1178,
fn. 20.
Applying that standard, we find that Varney did not
unlawfully interrogate Cole. Thus, as the judge found,
Cole had been an open union supporter during the 1995
campaign, and management could reasonably have be-
lieved that she would favor the union again. Varney was
a low level supervisor, and there is no evidence that he or
any other supervisor questioned Cole or any other em-
ployee about union activities. Nor is there any indication
that the Respondent committed any unfair labor practices
during the 1995 organizing effort. Although Varney
spoke to Cole in his office, his relatively low rank greatly
reduces any coercive effect the statement might have had
it been made by, for example, the plant manager in his
office.
Because the Respondent unlawfully threatened Cole
with unspecified reprisals if she engaged in union activi-
ties, and, as we find below, later unlawfully warned Cole
against talking to other employees about work-related
issues, we recognize that Varney’s “interrogation” of
Cole did not take place in an atmosphere entirely free of
unlawful conduct. On balance, however, we do not find
that those unfair labor practices render Varney’s interro-
gation unlawful. Varney’s threat was nonspecific, and in
evaluating its seriousness, Cole must have been aware
that the Respondent did not act unlawfully in response to
the 1995 union organizing effort. As for the warning, it
was issued more than 2 months after Varney’s conversa-
tion with Cole and was not specifically related to her
union activities, but rather to her right to discuss work-
related matters with her fellow employees.
We agree with the judge, for the reasons stated in his
decision, that Varney’s statements did not create an im-
pression of surveillance. As the judge correctly ob-
served, Varney’s statement—”he heard that I was going
to organize . . . that the employees wanted me to organize
a union”—could not have been reasonably understood to
mean that Varney was monitoring employee conversa-
tions or somehow eavesdropping. A statement as to what
someone has heard could be based on (1) what he had
heard from the grapevine or (2) what he had picked up
from spying. There is no reason to infer the latter as the
source over the former. And, particularly in the instant
case, where Cole had been an open union supporter, there
is even less basis to suggest to Cole that Varney had been
spying on her union activity. Accordingly, we do not
agree that the Respondent created an impression of sur-
veillance.
The instant case is readily distinguishable from Moun-
taineer Steel, 326 NLRB 787 (1998), enfd. 8 Fed. Appx.
180 (4th Cir. 2001) In that case, a union supporter was
talking about the union with other employees when the
foreman walked around the corner and said, “I thought
you was a union radical and now I know you are.” Con-
trary to our colleague, the Board decision makes it clear
that the two parts of the sentence constituted the viola-
tion. In the instant case, there is nothing comparable to
the second part of that sentence.4
2. The written warning to Cole
In late April, the Respondent issued a written warning
to Cole. As fully discussed by the judge, the warning
was precipitated by comments Cole made during and
after an employee meeting on April 27, regarding as-
serted harassment at work. On April 30, supervisors
Rick Sudds and Willie Tabb met with Cole and gave her
the warning. The document began with a lengthy discus-

4 As discussed above, Varney’s statement was a threat of retaliation.
Our colleague has parsed the statement so finely as to glean three viola-
tions from it. As noted, we find one violation. Our colleague’s ap-
proach suggests the kind of “piling on” that Chairman Hurtgen spoke
about in his dissent in TPA, Inc., 337 NLRB 282 (2001). However, we
need not, and do not, reach that issue here.
SKD JONESVILLE DIVISION L.P. 103
sion of Cole’s demeanor and attitude, including her ac-
tions on April 27, which management evidently found
unacceptable. The document also describes the follow-
ing “inappropriate business behavior and responses” by
Cole:

1. Employee responds to every situation she
deems unfavorable with a response of harassment
towards all parties involved;
2. The employee consistently discusses work-
related problems with co-workers instead of their
proper party, i.e., the manager or member of man-
agement;
3. Interfacing with other employees, supervisors,
and senior management is most always in an inap-
propriate manner and usually uses an attitude incon-
sistent with mutual respect.

Under “corrective actions required,” the document states,
among other things, that “[a]ll work related problems are
to be discussed with the Supervisor. There are no excep-
tions to this corrective action.” The document concludes
with the warning: “Any further activity that results in a
counter-productive work situation will be dealt with in
the form of disciplinary action, up to and including dis-
charge of employment.”
We find that the warning violated Section 8(a)(1), be-
cause it unlawfully prohibited Cole from discussing
work-related matters with other employees. It is well
established that Section 7 protects employees’ right to
discuss such matters with each other. See, e.g., Keller
Ford, supra. Accordingly, a blanket prohibition on such
discussions violates Section 8(a)(1). See, e.g., Hilton’s
Environmental, 320 NLRB 437 fn. 2, 454 (1995).
In our view, Cole would reasonably have interpreted
the passage quoted above as a warning not to attempt to
discuss any work-related issues with her co-workers, and
as a threat that she would be disciplined or even fired if
she did so. As such, the warning was unlawfully coer-
cive, especially in view of Varney’s earlier statement that
it was not in Cole’s best interest to be involved with the
union. We therefore find that the Respondent violated
Section 8(a)(1) by issuing the written warning and
threatening Cole with discipline or discharge if she en-
gaged in protected conduct.5

5 The General Counsel has excepted to the judge’s failure to find that
statements allegedly made to Cole by Sudds and Tabb on April 28
violated Sec. 8(a)(1). We find no merit in that exception. The judge
apparently discredited the testimony on which the General Counsel
relies in support of this allegation, and in any event, a finding of such a
violation would not materially affect the Order.
In his brief in support of exceptions, the General Counsel also con-
tends that the judge erred by failing to find that Sudds violated Sec.
8(a)(1) by placing Cole on probation on April 29. We reject that con-
The judge dismissed this allegation, however, because
he found that the warning had to be read in the context in
which it was given. Noting that Cole had raised issues of
concern only to herself and not of interest to other em-
ployees, he found that the warning was not unlawful.
We disagree. The Board has specifically held that the
unlawful character of an overly broad rule of this kind
does not depend on whether it is promulgated in response
to an employee’s protected concerted activities. Thus, in
Keller Ford, the administrative law judge recommended
dismissing the complaint allegation that the employer
had unlawfully threatened an employee with unspecified
reprisals for talking to other employees about insurance
copayments, because the employee was acting solely in
his own interest and was not seeking group action. The
Board reversed, holding that such a broad prohibition
against discussing terms and conditions of employment
with other employees violated Section 8(a)(1) regardless
of whether the employee who was the target of the pro-
hibition was actually engaged in protected concerted
activities. 336 NLRB at 722. See also K Mart Corp.,
297 NLRB 80 fn. 2 (1989). The Respondent’s warning
thus was unlawful, even though it was precipitated by
Cole’s actions that were arguably on her own behalf.
In finding this violation, we do not mean to imply that
employers may not have, and enforce, rules against inap-
propriate employee behavior or which seek to foster a
harmonious working environment. Nor do we suggest
that employers may not require employees to discuss
work-related problems with management in an attempt to
reach a solution. We simply hold, as the Board has re-
peatedly done, that employers may not forbid employees
to talk about work-related issues with each other as well.6

tention, which was not among the General Counsel’s exceptions. See
Ichikoh Mfg., 312 NLRB 1022 (1993), enfd. mem. 41 F.3d 1507 (6th
Cir. 1994); Board’s Rules and Regulations, Sec. 102.46(b)(2), (c).
6 We find this case distinguishable from Aroostook County Regional
Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996). There,
the court of appeals found that the employer lawfully maintained rules
stating that “All grievances are to be discussed in private with the office
manager or physicians. It is totally unacceptable for an employee to
discuss any grievances within earshot of patients.” Id. at 211. The
court held that the rule against discussing grievances in the presence of
patients was consistent with Supreme Court precedent (see Beth Israel
Hospital v. NLRB, 437 U.S. 483, 505 (1978); NLRB v. Baptist Hospital,
Inc., 442 U.S. 773, 784–786 (1979)), and that the rule requiring em-
ployees to discuss their grievances in private with management was
designed merely to provide a fair and reasonable employment dispute
resolution mechanism. Id. at 213–214. Neither rule suggested to the
court that employees were forbidden to discuss work-related grievances
with each other under any circumstances, especially because the em-
ployer affirmatively encouraged discussions among employees that did
not include physicians or managers. Id. Here, by contrast, the Respon-
dent explicitly stated that Cole’s “inappropriate business behavior”
included “discuss[ing] work-related problems with co-workers instead
of their proper party, i.e. the manager or a member of management.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
ORDER
The National Labor Relations Board orders that the
Respondent, SKD Jonesville Division, L.P., Jonesville,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals if
they engage in union activities.
(b) Warning employees not to talk to other employees
concerning work-related problems, and threatening them
with discipline up to and including discharge if they do
not comply.
(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, remove
from its files any reference to the unlawful warning of
Pamela Cole, and within 3 days thereafter notify her in
writing that this has been done and that the warning will
not be used against her in any way.
(b) Within 14 days after service by the Region, post at
its facility at Jonesville, Michigan, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 February 14, 1999.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

(Emphasis added.) That statement strongly implies that co-workers
were not “proper parties” with whom Cole was allowed to discuss
work-related issues.
7 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.”

MEMBER LIEBMAN, dissenting in part.
I agree that the Respondent violated Section 8(a)(1) of
the Act by threatening Pamela Cole with unspecified
reprisals if she took part in union activities and by warn-
ing her in writing not to talk to other employees about
work-related matters and threatening her with discipline
or discharge if she did so. Unlike my colleagues and the
judge, I would also find that Cole’s supervisor, Kevin
Varney, unlawfully interrogated Cole and gave the im-
pression that her union activities were under surveillance.
1. Impression of surveillance
As stated in the majority opinion, Varney called Cole
into his office in mid-February 1999, not long after a
union organizing campaign had begun among the Re-
spondent’s employees. Varney told Cole that “he heard
that I was going to organize . . . that the employees
wanted me to organize a union[.]” The complaint alleges
that Varney’s statement unlawfully created an impression
of surveillance.
As the judge noted, the test for whether an employer’s
statement creates an impression of surveillance is
whether the employee would reasonably assume from the
statement that her union activities were under surveil-
lance. United Charter Service, 306 NLRB 150 (1992).
In my view, Cole would reasonably have assumed from
Varney’s statement that he had heard that the employees
wanted Cole to organize a union. There is no showing
(and no contention) that Varney had a legitimate purpose
for making his statement. The coercive nature of the
statement was made even more apparent by Varney’s
unlawful threat, in the same conversation, to retaliate
against Cole if she engaged in union activities.
The Board has found that similar statements created an
impression of surveillance. In Mountaineer Steel, Inc.,
326 NLRB 787 (1998), enfd. 8 Fed. Appx. 180 (4th Cir.
2001), a union supporter was talking about the union
with other employees when the foreman walked around
the corner and said, “I thought you was a union radical
and now I know you are.” The Board found that the first
part of the statement (“I thought you was a union radi-
cal”) reasonably suggested that the foreman had spent
some time in the past closely monitoring the employee’s
union activities.1
1 The judge distinguished Mountaineer Steel because the “and now I
know you are” part of the foreman’s statement would have led the
employee to believe that the foreman was eavesdropping. While there
is no suggestion of eavesdropping in this case, Varney’s remark that he
heard that the employees had asked Cole to organize a union was simi-
lar to the remainder of the foreman’s comment in Mountaineer Steel (“I
thought you was a union radical”), and likewise gave the impression
that Cole’s union activities had been monitored.
SKD JONESVILLE DIVISION L.P. 105
In finding no violation here, the judge reasoned that,
from Varney’s statement, one could conclude that some-
one opposed to the Union voluntarily informed him
about Cole’s activities. The Board, however, has re-
jected that reasoning, and so do I. The reason is simple:
in evaluating whether an employer’s statement is coer-
cive, the Board evaluates it as would a reasonable em-
ployee who depends on the employer for her livelihood.
As the Supreme Court has held,
[A]ny balancing of [employees’ Section 7 rights and
employers’ right to express their views] must take into
account the economic dependence of the employees on
their employers, and the necessary tendency of the
former, because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear.
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
The test, therefore, is not whether some reasonable third
party might infer an innocent explanation for Varney’s
statement, but whether a reasonable employee in Cole’s
position could interpret it as indicating that her conduct
was under surveillance. Thus, as stated in Mountaineer
Steel, “the Board does not require that an employer’s
words on their face reveal that the employer acquired its
knowledge of the employee’s activities by unlawful
means.” 326 NLRB at 787, quoting United Charter Ser-
vice, 306 NLRB at 151.
In finding the violation in Mountaineer Steel, the
Board also found that no innocent explanation for the
foreman’s statement was communicated to the employee.
326 NLRB at 787 fn. 4; see also United Charter Service,
306 NLRB at 151. Here, too, no legitimate purpose was
given for Varney’s remarks. For all these reasons, then, I
would find that Varney’s statement reasonably suggested
to Cole that her union activities were under surveillance,
and therefore that they violated Section 8(a)(1).
2. Unlawful interrogation
I would also find that Varney unlawfully interrogated
Cole by stating that he had heard that the employees had
asked her to organize a union. An interrogation violates
Section 8(a)(1) if, under all the circumstances, it rea-
sonably tends to interfere with, restrain, or coerce em-
ployees in the exercise of their Section 7 rights. Ross-
more House, 269 NLRB 1176, 1177 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local v. NLRB, 760
F.2d 1006 (9th Cir. 1985); Sunnyvale Medical Clinic,
277 NLRB 1217, 1218 (1985). The factors to be consid-
ered include the background of the questioning, the na-
ture of the information sought, the identity of the interro-
gator, and the place and method of the questioning.
Rossmore House, 269 NLRB at 1178, fn. 20.
Applying that standard, I find that Varney’s comment
restrained and coerced Cole in violation of Section
8(a)(1). Thus, Cole was summoned to Varney’s office,
for no apparent reason, and abruptly confronted with the
statement that Varney had heard that the employees had
asked her to organize a union. Varney did not give Cole a
choice as to whether to engage in this colloquy or assure
her that reprisals would not follow her response. Yoshi’s
Japanese Restaurant & Jazz House, 330 NLRB 1339,
1342 (2000). Indeed, in the same conversation, Varney
violated Section 8(a)(1) by threatening Cole with un-
specified reprisals if she was involved with union orga-
nizing. In addition, Cole was unlawfully warned, in a
separate incident, not even to talk to other employees
about work-related concerns. These other unfair labor
practices reinforce the coercive nature of Varney’s inter-
rogation.
Thus, Cole was interrogated about her union organiz-
ing activities, in her supervisor’s office, and against a
background of other unfair labor practices.2 Varney gave
no legitimate reason (or any reason) for the interrogation,
and he gave her no assurance against retaliation. That
Varney was a low-level supervisor may reduce some-
what the coercive character of his remarks, but not
enough to make them lawful. Although Cole had been
an open union adherent during the 1995 organizing cam-
paign, there is no showing that she actively or openly
supported the union in 1999. Under all of the circum-
stances, I would find that Varney’s interrogation of Cole
violated Section 8(a)(1).
For all of the foregoing reasons, I would reverse the
judge and find that the Respondent violated Section
8(a)(1) by interrogating Cole and by creating the impres-
sion that her protected conduct was under surveillance.3

2 I find my colleagues’ attempt to minimize the impact of the Re-
spondent’s unlawful conduct unpersuasive, especially since Varney
threatened Cole with reprisals for engaging in union activities almost
immediately after interrogating her about those activities. Also, con-
trary to the majority, I find it irrelevant that Varney’s comment was not
phrased as a question, because it was clearly intended to, and did, elicit
information from Cole about her union activities. See Clinton Elec-
tronics Corp., 332 NLRB 479, 479–480 (2000).
3 Despite my colleagues’ apparent skepticism of the approach, the
Board has often found more than one violation growing out of state-
ments made in the same conversation. See, e.g., Boydston Electric, 331
NLRB 1450 (2000) (threats of reprisal and coercive interrogation);
Sivalls, Inc., 307 NLRB 986, 1001 (1992) (interrogation and implica-
tion that support of union was futile; implication of futility and threat of
discharge); Willamette Industries, 306 NLRB 1010 fn. 2 (1992) (inter-
rogation and implication that employer would act to deprive union of
its supporters); Action Auto Stores, 298 NLRB 875, 887 (1990), enfd.
mem. 951 F.2d 349 (6th Cir. 1991) (interrogation, threat of discharge,
threat of plant closure). Indeed, the Board has explicitly rejected the
view of former Chairman Hurtgen that it should avoid, as “piling on,”
finding separate and distinct violations in such circumstances. TPA,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
I therefore respectfully dissent from my colleagues’ dis-
missal of those allegations.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any 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 threaten employees with unspecified
reprisals if they engage in union activities.
WE WILL NOT warn employees not to talk to other
employees concerning work-related problems, and
threaten them with discipline up to and including dis-
charge if they do not comply.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the National Labor Rela-
tions Act.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful warning of Pamela Cole, and WE WILL,
within 3 days thereafter, notify her in writing that this
has been done and that the warning will not be used
against her in any way.
SKD JONESVILLE DIVISION, L.P.
Richard F. Czubaj, Esq., for the General Counsel.
Susan T. Rapp, Esq. (Abbott, Nicholson, Quilter, Esshaki &
Youngblood, P.C.), of Detroit, Michigan, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This
case was tried in Hillsdale, Michigan, on February 9, 2000.
The charge was filed July 23, 1999, and the complaint was
issued November 19, 1999.

Inc., 337 NLRB 282 (2001). The majority leaves revisiting that issue
for another day.
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, engages in welding and metal
stamping at its facility in Jonesville, Michigan, where it annu-
ally purchases and receives goods valued in excess of $50,000
directly from points outside the State of Michigan. 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
The Charging Party, Pamela Cole, worked for Respondent
from March 1994, until August 1999. In 1995, Cole was ac-
tively, and apparently openly, involved in an attempt by the
United Autoworkers Union (UAW) to organize Respondent’s
plant. The Union lost an NLRB representation election that
year.
In the fall of 1998, Cole accused two men at Respondent’s
plant of sexually harassing her. She filed an unfair labor prac-
tice related to her allegations which was withdrawn. Respon-
dent conducted an internal investigation which resulted in the
issuance of a written warning to one rank-and-file employee.
Respondent did not take disciplinary action against one of its
supervisors, who denied Cole’s allegations. SKD concluded
that in the absence of witnesses, it could not conclude that sex-
ual harassment had occurred. The supervisor was verbally
counseled and provided with a copy of the Company’s harass-
ment policy.
Facts relating to paragraph 7(a) of the complaint
Cole testified that early in 1999 a number of employees
asked her to contact the UAW to initiate another organizing
drive. In mid-February 1999, Kevin Varney, then Cole’s su-
pervisor, called her into his office. Also present was, Jeff Ham-
ilton, a rank-and-file employee. I credit the following uncon-
tradicted testimony by Cole as to what was said:

Varney said he heard that I was going to organize . . . that the
employees wanted me to organize a union and I told him no, I
wasn’t getting involved, and then they were talking, him and
Jeff Hamilton . . . about people on Workmen’s Comp, that
they were low life losers and . . . Jeff Hamilton said that . . .
Varney should fire them all and Varney said he would if he
could, and then he told me that it wasn’t in my best interests
to be getting involved with the union.

Cole said she was not getting involved with the Union and
went back to work. No other supervisors talked to Cole about
the Union in 1999, and Varney did so only on this one occa-
sion.
Facts relating to paragraph 7(b) and (c), 8 and 9
of the complaint
Between late February and late April 1999, Pamela Cole had
a number of ongoing disagreements with her supervisor, Willie
Tabb, Respondent’s quality control manager. One of these
disputes involved a decision by Tabb to designate the area in
SKD JONESVILLE DIVISION L.P. 107
which Cole’s desk was located as part of a no-smoking area.
Cole, who wished to continue smoking at her desk, believed
that Tabb was singling her out and harassing her. She may also
have argued with Tabb about additional assignments she was
being given.
On April 27, 1999, Pat Giampolo, the human resources di-
rector of Respondent’s parent company, National Material Cor-
poration, came to the SKD Jonesville plant to conduct an orien-
tation session concerning Respondent’s new employee hand-
book. The orientation session, which began at 6 a.m., was
scheduled for 1 hour at the beginning of Respondent’s first
shift.
Giampolo came to meeting with approximately 90 slides
which he showed employees during his lecture. The first slide
outlined the agenda for the meeting which was attended by
approximately 70 to 80 people, including rank-and-file em-
ployees and managers. He asked the employees to hold their
questions until the end of his presentation. He then proceeded
to go through the handbook section by section.
When Giampolo got to the portion of the handbook dealing
with Respondent’s harassment policy, Cole, who was sitting in
the first row, made a comment in a voice loud enough for
Giampolo to hear her. She said that she had been harassed and
nobody did anything about it. Giampolo told her that he would
talk to her about this after the meeting. Cole made at least one
other audible comment, to the effect that her supervisor was
harassing her.
There was a short question and answer session after Giam-
polo concluded his remarks. Then employees came to the front
of the room to receive copies of the employee handbook from
the plant human resources manager, Rick Sudds, and sign for
them. While Sudds distributed the handbooks at one end of a
table, several employees approached Giampolo and SKD presi-
dent, Dennis Berry, who were standing at the other end of the
table.
With four to five other employees, who were waiting to ask
questions of Giampolo, standing behind her, Cole told Berry
about her sexual harassment complaints. Referring to the su-
pervisor against whom disciplinary action was not taken in the
fall 1998, Cole told Berry that she wanted Berry to know that
this individual thrust his penis in her face in an office. Refer-
ring to the employee who had received a written warning, Cole
told Berry that this individual had told her he’d like to pick the
flowers off her blouse.1 She then started talking to Berry and
Giampolo about her problems with Willie Tabb.
Giampolo told Cole that her sexual harassment allegations
had been resolved and that if she had any new complaints, she
should talk to Sudds. Cole left and other employees then ap-
proached Giampolo to discuss how certain items in the hand-
book related to their personal situations.
On April 28, Cole met with Rick Sudds. Afterwards, Sudds
met with Willie Tabb and discussed Cole’s assertions that Tabb
was harassing her.2 The same morning Giampolo had a confer-

1 On the day in question, Cole was wearing a blouse which had a flo-
ral design on it.
2 To the extent that there are discrepancies between the testimony of
Sudds and Cole regarding her meetings with management on April 28,
ence call with Sudds and Willie Tabb. The three decided to
issue Cole a written warning. This warning was presented to
Cole on April 30, at a meeting attended by Cole, Sudds, and
Tabb. The warning referred to Cole’s conduct at the April 27
meeting with Giampolo and delineated the following examples
of “inappropriate business behavior and responses:”

1. Employee responds to every situation she deems unfavor-
able with a response of harassment towards all parties in-
volved;

2. The employee consistently discusses work-related prob-
lems with co-workers instead of their proper party, i.e. the
manager or member of management;

3. Interfacing with other employees, supervisors, and senior
management is most always in an inappropriate manner and
usually uses an attitude inconsistent with mutual respect.

The warning required that “all work-related problems are to
be discussed with the Supervisor. There are no exceptions to
this corrective action.” It further stated that “[a]ny further ac-
tivity that results in a counter-productive work situation will be
dealt with in the form of disciplinary action, up to and includ-
ing discharge of employment.”
ANALYSIS
Did Kevin Varney’s questions and comments to Pamela Cole
violate Section 8(a)(1)?
The General Counsel alleges that Respondent, by Kevin
Varney: (1) conveyed to employees the impression that their
support for, and activities on behalf of, the Union were under
surveillance; (2) that Respondent coercively interrogated Cole
about her union activities; and (3) threatened her with adverse
consequences because of her support for, and activities on be-
half of, the Union.
I conclude that the General Counsel has not established that
Varney created an impression that Cole’s union activities were
under surveillance. The test for making this determination is
whether the employee would reasonably assume from the su-
pervisor’s statement that his or her union activities had been
placed under surveillance, United Charter Service, 306 NLRB
150 (1992). Varney said nothing that gave the impression that
he or anyone else in Respondent’s management was spying on
Cole. From his statement, one could just as easily conclude
that somebody, who was unsympathetic with the Union, volun-
tarily informed Varney as to Cole’s activities.
In this regard, I would contrast the cases cited by the General
Counsel. In Mountainer Steel, Inc., 326 NLRB 787 (1998), the
context of the supervisor’s statement would reasonably have
led the employee to believe that the supervisor was eavesdrop-
ping on his union-related conversation. This is not so in the
instant case. Similarly, in United Charter Service, supra, the
Board found, due to the detail of his comments, that the state-

1999, I credit Sudds. I therefore find that she met with Sudds and Tabb
only on April 30. I deem the differences in their testimony insignifi-
cant. The issue herein is whether the warnings issued to Cole, verbal as
well as written, are to be interpreted in the context of her individual
complaints, or more broadly, to forbid her from discussing with other
employees matters of mutual concern.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
ments by the employer’s operations manager, Vieira, reasona-
bly suggested to employees that the employer was closely
monitoring the degree and extent of their organizing efforts and
activities. I conclude that the comment by Varney, herein, did
not imply close scrutiny of employee union activities.
With regard to the remaining allegations, not every question
asked or comment made by a management official about union
activity violates Section 8(a)(1). One must determine whether
under all the circumstances of the interrogation or comment, it
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act, Rossmore House, 269 NLRB 1176
(1984), affd. sub nom., Hotel & Restaurant Employees Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Some of the fac-
tors to be considered with regard to interrogations are: (1) the
background of the questioning; (2) the nature of the information
being sought; (3) the identity of the questioner; and (4) the
place and method of the interrogation. I conclude that given all
the circumstances of Varney’s brief and isolated conversation
with Cole about union activities, the General Counsel has not
established an 8(a)(1) violation.
Weighing heavily in this determination is that the interroga-
tion was a one-time event by a low-level supervisor. Moreover,
there is no evidence of other unfair labor practices or antiunion
animus. I would contrast the instant case, for example, with
that in Advance Waste Systems, 306 NLRB 1020 (1992), where
a one-time interrogation by a company vice president, inside a
moving truck, was found to be violative, in conjunction with
other expressions of hostility and disapproval of union activity.
Other cases distinguishable due to the background of numerous
unfair labor practices are Stoody Co., 320 NLRB 18 (1995)
[where the questioner was also a high level supervisor] and
American Crane Corp., 326 NLRB 1401 (1998). Furthermore,
Cole’s testimony indicates that it was well-known that she sup-
ported the 1995 union campaign and that management had
reason to believe that she would be favorably disposed to an-
other campaign.
Finally, from the brief testimony in the record, I am unable
to interpret Varney’s observation that it would not be in Cole’s
best interest to become involved with the Union as a threat.
The essence of Varney’s remark may be no more than convey-
ing his view that employees at Respondent’s facility didn’t
need a union. The isolated nature of Varney’s comment con-
trasts with those made in the cases cited by the General Coun-
sel. In Leather Center, Inc., 308 NLRB 16, 27 (1992), and
Garney Morris, Inc., 313 NLRB 101, 116 (1993), similar
comments were found to constitute veiled threats against a
backdrop of numerous other unfair labor practices. Given the
absence of other expressions of antiunion animus or threats
herein, I decline to infer an veiled threat of repercussions to
Cole if she persisted in attempts to organize a union. I there-
fore dismiss paragraph 7(a) of the complaint in its entirety.
Did Respondent violate Section 8(a)(1) in disciplining Cole on
April 30?
The first issue is assessing the written warning given to Pam-
ela Cole is whether it was administered in retaliation for pro-
tected activities. Section 7 gives employees the right to engage
in concerted activity for the purpose of collective bargaining or
other mutual aid or protection . . . (emphasis added). In inter-
preting this provision, the Board distinguishes between an em-
ployee’s activities engaged in with or on the authority of other
employees (concerted) and an employee’s activities engaged in
solely by and on behalf of the employee herself (not concerted),
Meyers Industries (Myers II), 281 NLRB 882 (1986) affd. sub
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. de-
nied 487 U.S. 1205 (1988). I conclude that Cole did not engage
in any activity for the aid or protection of any employee other
than herself.3 I therefore conclude that she did not engage in
concerted activities that are protected by Section 7.
There remains, however, the fact that the written warning is-
sued to Cole, on its face, forbid her from discussing any work-
related problems with coworkers. The language of the warning
is not limited to problems that pertain only to Cole and facially
appears to prohibit her from discussing matters that may be of
concern to other employees as well. I conclude that the warn-
ing must be read in the context in which it was given. Had
Cole been raising issues of concern to anyone other than her-
self, the warning would be a clear violation of Section 8(a)(1).
However, this record indicates that Cole only raised issues that
pertained to her. I therefore interpret the warning in this light
and find that Respondent did not violate Section 8(a)(1) as
alleged.
[Recommended Order omitted from publication.]

3 Whittaker Corp., 289 NLRB 933, 934 (1988), relied upon by the
General Counsel, is irrelevant to the instant case. The employee is
Whittaker phrased his remarks as a group, not a personal, complaint.
Moreover, his issue with his employer, was clearly, unlike Cole’s, a
matter of concern to many employees. Cole’s complaints were that her
sexual harassment allegations had not been resolved to her satisfaction
and that her supervisor, Willie Tabb, was not treating her fairly. Her
complaints had nothing to do with the wages, hours, and working con-
ditions of other employees.