Nexteer Automotive Corp.

National Labor Relations Board - Board Decisions

Aug 27, 2019

368 NLRB No. 47 (N.L.R.B. 2019)

368 NLRB No. 47
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.
Nexteer Automotive Corp. and Local 699, Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), AFL–CIO. Case 07–CA–215036
August 27, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On December 10, 2018, Administrative Law Judge Paul
Bogas issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
and Charging Party each filed an answering brief, and the
Respondent 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 exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 and to
adopt the recommended Order as modified and set forth in
full below.3
AMENDED REMEDY
In addition to the remedies provided in the judge’s de-
cision, we shall order the Respondent to compensate
Nuffer-Bauer for his search-for-work and interim employ-
ment expenses, regardless of whether those expenses ex-
ceed interim earnings. King Soopers, Inc., 364 NLRB No.
93 (2016), enfd. in rel. 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 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
Nuffer-Bauer for any adverse tax consequences of

1 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 preponderance
of all the relevant evidence convinces us 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 re-
versing the findings.
2 In applying Atlantic Steel, 245 NLRB 814 (1979), the judge found
that the “provocation” factor weighed slightly against continued protec-
tion. No party excepted to this finding.
We do not condone Joshua Nuffer-Bauer’s intemperate outburst dur-
ing his December 13, 2017 meeting with management. As found by the
judge, Nuffer-Bauer stood within 12 to 16 inches of plant manager Tay-
lor, pointed his finger at Taylor, and said angrily, one to three times,
“fuck you” or “go fuck yourself.” Under other circumstances, we would
receiving a lump-sum backpay award and to file a report
with the Regional Director for Region 7 allocating the
backpay award to the appropriate calendar years. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Nexteer Automotive Corp., Saginaw, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for supporting Local 699, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL–CIO, or any
other labor organization.
(b) 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
Joshua Nuffer-Bauer full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Joshua Nuffer-Bauer whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the rem-
edy section of the judge’s decision as amended in this de-
cision.
(c) Compensate Joshua Nuffer-Bauer for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and file with the Regional Director for Region
7, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay award to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge, and
within 3 days thereafter, notify Joshua Nuffer-Bauer in
find that an outburst of this character exceeds the limits of what an em-
ployer should be expected to endure, even during the exercise of Sec. 7
rights. Under the particular circumstances of this case, however, we do
not find that the “nature of the outburst” factor weighs against Nuffer-
Bauer retaining the protection of the Act under Atlantic Steel, supra. In
reaching this result, we note that the judge, based on credibility determi-
nations, found that Nuffer-Bauer did not engage in any threatening con-
duct during the meeting, and that the record established that profanity
was common in this workplace. In fact, supervisors had directed profan-
ity at Nuffer-Bauer personally, telling him that he was “being an asshole”
for presenting grievances in his capacity as a union representative.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, and we shall substitute a new notice
to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
writing that this has been done and that the discharge will
not be used against him 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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary 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 facilities in Saginaw, Michigan, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 7, af-
ter 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 in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out
of business or closed the facilities involved in these pro-
ceedings, 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 December 19, 2017.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 7 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. August 27, 2019
_______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
______________________________________
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 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 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 ac-
tivities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 699, International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO, or
any other union.
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 Joshua Nuffer-Bauer full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Joshua Nuffer-Bauer whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest, and WE
WILL also make him whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Joshua Nuffer-Bauer for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 7, 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 cal-
endar years.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
NEXTEER AUTOMOTIVE CORP. 3
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharge of Joshua Nuffer-Bauer, and WE WILL , within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
NEXTEER AUTOMOTIVE CORP.
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-215036 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.
Scott R. Preston, Esq., for the General Counsel.
Kim F. Ebert, Esq. and Sarah M. Rain, Esq. (Ogletree, Deakins,
Nash, Smoak & Stewart, P.C.), of Indianapolis, Indiana, for
the Respondent.
Stuart S. Shoup, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Detroit, Michigan, on August 6, 2018. Local 699, Interna-
tional Union, United Automobile and Agricultural Implement
Workers of America (UAW), AFL–CIO, (Union or Charging
Party) filed the charge on February 16, 2018, and the amended
charge on March 5, 2018. The General Counsel issued the com-
plaint on April 9, 2018. The complaint alleges that Nexteer Au-
tomotive Corp. (the Respondent) discharged Union Representa-
tive Joshua Nuffer-Bauer (Bauer) in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act (NLRA or Act) be-
cause he assisted the Union and engaged in concerted activities,
and/or in violation of Section 8(a)(4) and (1) of the NLRA be-
cause he filed charges and gave testimony in a matter before the
National Labor Relations Board (Board or NLRB). The Re-
spondent filed a timely answer in which it denied committing
any of the violations alleged.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, the Charging Party, and the Respondent, I
make the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, manufactures, assembles, and
sells automotive parts at its facilities in Saginaw, Michigan, from
which it annually sells and ships goods valued in excess of
$50,000 directly to points outside the State of Michigan. The
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 and that the Union is a labor organization within the meaning
of Section 2(5) of the NLRA.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent manufactures and sells parts for the automo-
tive industry. Its operations include seven plants on a campus in
Saginaw, Michigan. The Union represents a bargaining unit of
approximately 3200 production and maintenance employees at
the Respondent’s Saginaw facilities. The Union has 14 elected
district committee persons who assist unit members by, inter alia,
addressing contractual disputes with management and by guid-
ing employee grievances through the contractual process.
Bauer—who the Respondent is alleged to have discriminatorily
and unlawfully discharged—became a district committee person
in July 2014 after working for the Respondent for 3 years as a
machine operator. Once Bauer became a district committee per-
son he was no longer assigned production or maintenance duties,
but rather worked full time on union business at Saginaw plants
3 and 6. During the relevant time period, Bauer’s superior in the
union organizational structure was JoAnn Reyna-Frost (Frost),
whose title was “shop committee person.”
B. Respondent’s Policies
The parties referenced a number of employer policies during
their presentations in this case. Two of these, which are also
referenced in the complaint, are found in the “Shop Rules” sec-
tion of the relevant collective-bargaining agreement (CBA). The
Shop Rules, of which there are a total of 38, provide in relevant
part:
Violation of any of the following Shop Rules will be sufficient
grounds for disciplinary action ranging from reprimand to im-
mediate discharge, depending on the seriousness of the offense
in the judgment of Management.
. . .
9. Assaulting, threatening, intimidating, coercing or in-
terfering with supervision.
. . .
13. Abusive language to Supervision or other employ-
ees.
The Respondent also has a written “Global Workplace Vio-
lence Prevention Policy,” which provides that disciplinary action
may be imposed for a variety of activities defined as violence,
including: possessing weapons or dangerous devices, bullying,
stalking, making threats, causing harm to people or property, or
“creat[ing] an intimidating, offensive, or hostile environment.”
In 2017, the Respondent provided training to employees during
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
which it stated that under the “code of conduct” it “will not tol-
erate any acts or threats of violence, including inappropriate ver-
bal or physical threats, intimidation, harassment, or coercion,”
and that violations “may result in disciplinary action—up to and
including termination.”
The article in the CBA that pertains to “discipline, suspension,
or discharge,” contains a section entitled, “cooling off period.”
This section provides, in part, that:
The Union expressed concern that some disciplinary inter-
views escalated into confrontation because tempers flared. . . .
The Company and the Local Union agreed that contemplated
discipline should be discussed in a calm manner allowing for
an objective evaluation of the facts. In those situations where
emotions preclude this from happening, the parties agreed that
as a matter of practice and when possible such discussions
should be postponed until such time that, in the opinion of
Management, a constructive exchange of information could
occur.
There is no language in this section that makes mention of us-
ing the “cooling off period” when tempers flare outside the con-
text of disciplinary interviews.
In their briefs, the General Counsel and the Charging Party
contend that the Respondent has a progressive discipline policy
that bears on the validity of the disciplinary action against Bauer.
Neither of those parties identifies any language in the CBA or
any other company document that sets forth a progressive disci-
pline policy, and no such language can be found in the CBA ar-
ticle titled, “discipline, suspension or discharge.” General Coun-
sel’s Exhibit 2 (GC Exh. 2 at pp. 31–32) (art. VII). Allison Bell,
the Respondent’s human resources business partner for plant 3,
testified that the Respondent had a progressive discipline policy,
but not in the sense of setting forth a schedule of specific disci-
plinary “steps.” Transcript at pages (Tr. at pp. 99–100.) Denny
Getgood, who preceded Bell as plant 3 human resources business
partner, testified that the Respondent used progressive discipline
“to some extent” “depending on the case.” (Tr. 164.) The record
indicates that these references to progressive discipline only
mean that the Respondent has a range of disciplinary responses
available to it—from reprimand to discharge—and that it
chooses which to apply based on the “seriousness of the of-
fense.” (Ibid.; see also GC Exh. 2 at p. 155) (Violation of any
shop rule “will be sufficient grounds for disciplinary action rang-
ing from reprimand to immediate discharge, depending upon the
seriousness of the offense in the judgment of Management.”).
The record does not show that the Respondent had a formal pro-
gressive discipline policy in the sense of a schedule of discipli-
nary actions based on the type and number of infractions.
Article VII, Section 3(A) of the CBA states that “[i]n impos-
ing discipline on a current charge, Management will not take into
account any prior infractions which occurred more than twenty-
four months previously,” and will “eliminate from an

1 The Respondent contends that although the prior infractions were
not a basis for the discharge, I should consider them as evidence of the
“pattern of [Bauer’s] behavior.” (Tr. 57.) The relevance of a pattern of
behavior is not clear to me under the circumstances here. While there is
a factual dispute about some of the particulars of the key December 13
employee’s record any infractions where there was a lapse of
time of greater than 18 months between infractions.” (GC Exh.
2 at p. 32.)
The CBA states that when management is considering disci-
pline the employee will be interviewed “to allow for answering
the charges before being required to leave the plant.” (Id. at 31.)
There was credible and uncontradicted testimony that when an
employee is accused of making a threat, the Respondent’s cus-
tomary response includes suspending that employee pending in-
vestigation. (Tr. 66–67.)
C. Prior Discipline Against Bauer
In its brief, the Respondent repeatedly makes reference to
prior infractions by Bauer in an effort to justify his termination.
(R. Br. at pp. 3–4, 9–10, 21–22.) This is puzzling because the
Respondent concedes that none of that prior conduct was, or
properly could be, taken into account to justify the Respondent’s
challenged decision to terminate Bauer. (See Tr. 57, 166, 169–
171.) All of the prior conduct either had occurred more than 24
months in the past, and thus article VII of the CBA prohibited
the Respondent from considering it (GC Exh. 2) or had been
withdrawn and expunged by the Respondent (GC Exh. 4.) The
General Counsel also discusses prior discipline against Bauer,
although the General Counsel does so as part of an argument that
the Respondent followed progressive discipline with respect to
Bauer prior to when he filed NLRB charges, but then skipped
straight to discharge for the same type of conduct after Bauer
filed charges. 1
As noted previously, Bauer became a union official in July
2014. Prior to that time, he was disciplined twice in 2013. The
first time was on April 30 when he called his supervisor a “pomp-
ous jackass” and was cited for violating shop rule number 9 (the
rule that prohibits “assaulting, threatening, intimidating, coerc-
ing or interfering with supervision”). It appears that the Re-
spondent initially suspended Bauer for 2 weeks, but after he
grieved the discipline the suspension was reduced to 1 week. In
May of 2013, the Respondent cited Bauer for violating a shop
rule against wasting time during working hours. Initially, the
Respondent suspended Bauer for 30 days, but after he filed a
grievance, the suspension was reduced to 1 week.
The first discipline to be imposed on Bauer during the period
after he became a union official came on March 4, 2015. The
Respondent cited him for violating shop rule number 9 and an-
other shop rule regarding failure to follow a supervisor’s instruc-
tions. In that instance, Bauer had a disagreement with a super-
visor who objected when Bauer engaged in a 5-minute discus-
sion with an employee who had requested union assistance.
Bauer notified the supervisor in advance that he would be doing
this and had arranged for the employee’s position on the produc-
tion line to be covered. At some point during the ensuing disa-
greement, Bauer yelled, “bullshit” at the supervisor. Bauer re-
ceived a 1-week suspension in that instance. On July 30, 2015,
the Respondent suspended Bauer for 2 weeks, citing him for
meeting between Bauer, Taylor, and Bell, the disciplinary history is no
more supportive of one version than of the other. I do conclude, how-
ever, that the prior discipline should be examined to determine whether
management’s response to Bauer’s conduct was demonstrably more le-
nient before he filed NLRB charges than it was afterwards.
NEXTEER AUTOMOTIVE CORP. 5
violating a shop rule prohibiting “abusive language” by making
a derogatory remark about a supervisor’s sex life. On October
15, 2015, the Respondent cited Bauer for interfering with pro-
duction by having a discussion with an employee without
properly coordinating with a supervisor. The initial action taken
by the Respondent was to discharge Bauer, but the discipline was
subsequently reduced to a 30-day suspension. As indicated pre-
viously all of the above discipline occurred more than 24 months
prior to the December 2017 incident that the Respondent relies
on to justify Bauer’s removal, and therefore the Respondent was
prohibited, under the CBA, from considering that discipline
when it discharged Bauer.
The most recent disciplinary action against Bauer was im-
posed on August 15, 2016, but was subsequently withdrawn and
expunged by the Respondent. The record indicates that Bauer
and a plant 3 supervisor had a disagreement about the schedule
for grievance-related employee interviews. The supervisor
threatened to interview the employees without Bauer present,
and Bauer responded that his response was “still going to be
‘fuck no.’” The Respondent initially suspended Bauer for 30
days for violating shop rule 13 (abusive language to a supervi-
sor). Bauer filed unfair labor practices charges with the Board
and the matter was settled with the Respondent agreeing to, inter
alia, retract the challenged discipline and expunge all references
to it from the Respondent’s files. The Respondent also provided
backpay to Bauer.
The Respondent has no information indicating that Bauer had
ever been physically violent. (Tr. 94, 115–116.)
D. November 9 Meeting
In the latter part of 2017, Bauer was concerned that the treat-
ment he was receiving from supervisors and managers at plant 3
was interfering with his ability to represent bargaining unit em-
ployees. Group supervisors in plant 3 had reacted to Bauer’s at-
tempt to resolve employee grievances by telling him that his
“grievances were bullshit” and that he was “being an asshole.”
Supervisors objected to Bauer talking to employees who had re-
quested union assistance. Benny Taylor—the area manager for
the plant—had threatened to eject Bauer from the plant on the
basis that Bauer was not wearing the proper safety shoes. In an-
other instance, Dean Storm, a supervisor, threatened to eject
Bauer for reasons unrelated to his shoes. Bauer discussed his
concerns with Frost, a higher level union official. Frost arranged
for Bauer and herself to have a meeting with Dereon Pruitt, the
human resources manager for the Respondent’s entire “steering
division,” on November 9, 2017. Also present at the meeting
was Bell, who reported to Pruitt, and who had become a human
resources business partner for plant 3 just a month earlier in Oc-
tober 2017. This meeting was the first time that Bell and Bauer
met.
Some aspects of the November 9 meeting are not disputed.
Specifically, the evidence establishes that the meeting took place
in Bauer’s office and the only attendees were Bauer, Frost, Pruitt,
and Bell. Bauer described the problems he was having at plant
3. In particular Bauer discussed that his attempts to resolve plant
3 grievances had met with resistance, dismissive comments, and
threats to eject him from the plant. Pruitt asked whether Bauer
had discussed these issues with Benny Taylor, who was the area
manager for plant 3. Bauer said that he had not, and Pruitt stated
that Bauer’s problems should be dealt with first at the plant level.
He directed Bell to arrange a meeting between Bauer and Taylor.
There was conflicting testimony regarding other elements of
the November 9 meeting. Most importantly, there was conflict-
ing testimony about alleged statements criticizing Bauer’s prior
use of the NLRB processes. Bauer testified that Pruitt said that
he “couldn’t believe” that Bauer had gone to the NLRB regard-
ing matters about which the parties “had a grievance settlement.”
Bauer also testified that when he explained that plant 3 managers
were not communicating with him, Pruitt responded that this was
the case because they “don’t want to end up in front of the
NLRB.” Frost reported Pruitt saying something similar to this—
i.e., that Pruitt was “not surprised that [plant 3 supervisors and
managers] won’t communicate with [Bauer] because they’re
afraid that they would end up down in Detroit in front of the La-
bor Board.” In addition, Frost testified that during the meeting
Bell said, “when she hears the name Josh Bauer, she thinks
NLRB.”
Pruitt testified that he was aware of Bauer’s prior NLRB
charges and their resolution, but he denied that either himself or
Bell made any mention of the NLRB during the November 9
meeting. Similarly, Bell denied that she said that when she heard
Bauer’s name she thought of the NLRB and also denied that
Pruitt made any mention of the NLRB during the meeting.
Regarding the references to the NLRB, I do not find a basis
on the record here to credit Bauer’s and Frost’s testimony over
Pruitt’s and Bell’s, or vice versa. None of these individuals were
disinterested witnesses and all of them presented their testimony
on this subject in a clear and certain manner. No significant in-
consistencies were demonstrated in this aspect of their testimo-
nies. The parts of the meeting that are not disputed do not show
that the disputed statements regarding the NLRB were necessary
to the November 9 discussion. If anything, the alleged state-
ments are, to my ears, strangely gratuitous and suspiciously clue-
less coming from human resources staff, especially a senior hu-
man resources official like Pruitt. The parties did not introduce
any contemporaneous written accounts, or other writings, that
might provide a basis for crediting one set of witnesses over the
other. Neither Bauer nor Frost claimed to have made a contem-
poraneous record of the alleged statements of hostility towards
Bauer’s NLRB activity, nor was either Bauer or Frost shown to
have taken issue with such statements by filing an NLRB charge
or pursuing any other course of action. As regards the statement
about the NLRB attributed to Bell (when she hears “Josh Bauer”
she thinks “NLRB”), I note that Bauer did not corroborate
Frost’s testimony that such a statement was made. On balance, I
cannot conclude that the disputed statements by Pruitt and Bell
more likely than not were made or were not made.
E. December 13 Meeting
As noted above, the upshot of the November 9 meeting was
that Pruitt directed Bell to set up a meeting between Bauer and
plant manager Taylor. That meeting was held on December 13,
2017, in Bell’s office. Present for the meeting were Bauer, Tay-
lor and Bell. Bell’s office was approximately 9.5 feet by 12 feet,
with most of that space being occupied by Bell’s desks and work
area. During the meeting Bauer and Taylor were sitting in a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
narrow and cramped area on the visitor side of Bell’s main desk.2
Bauer was in the corner of that area, away from the door out of
the office. Taylor was sitting about a foot away from Bauer—
positioned between Bauer and the door. The part of the facility
where Bell’s office was located was one that bargaining unit em-
ployees were generally unable to access during the time the
meeting took place. There were, however, a number of salaried,
nonbargaining unit, engineers working outside Bell’s office.
While Bauer and Taylor were waiting for Bell to arrive at the
office, they had a friendly discussion about their pets. Once Bell
arrived, the meeting lasted about 10 minutes. During the meeting
Bauer did most of the talking and raised a range of issues in a
short period of time. Taylor and Bell felt that Bauer was cutting
them off and not allowing them a reasonable opportunity to ad-
dress his concerns. The concerns that Bauer raised included: su-
pervisors interfering with his ability to talk to unit employees;
supervisors requiring him to leave their departments; supervisors
refusing to “deal with” him; the frequency with which supervi-
sory or managerial employees were doing bargaining unit work;
and safety.
Bauer became more emotional when the parties discussed unit
employees’ safety. Bauer stated that supervisors were setting a
bad safety example by talking on their cell phones while walking
in proximity to plant equipment. Taylor responded that, while
Bauer was always complaining about safety, Bauer himself was
setting a bad safety example by not wearing the right type of
shoes while in the plant. At that point during the meeting, Taylor
tried to inspect Bauer’s shoes, but Bauer would not permit him
to do so. Another safety issue raised by Bauer concerned man-
agement’s response when a unit employee vomited in her work
area and on herself. Bauer complained that management had
forced this employee to continue working for 2 hours without the
opportunity and/or assistance to clean the vomit from her work
area and from her person. Bauer’s understanding was that Taylor
had been approached about this employee’s predicament and re-
sponded “she puked, she can clean it up.”3 Bauer appears to have
found the discussion regarding the treatment of this employee
particularly upsetting. At various points Taylor and Bell both
told Bauer to “calm down.” Taylor commented to Bell, “This is
why we can’t get anything done . . . ; [Bauer is] just so hostile.”
At that point Bauer stood up, began pointing at Taylor, and
yelled, “fuck you” or “go fuck yourself” at Taylor approximately
one to three times. Bauer was 12 to 16 inches away from Taylor
during this portion of the meeting, but, as discussed earlier, the
visitor area of Bell’s office was a tight fit such that Bauer and
Taylor had already been only about 12 inches apart. Thus the
proximity does not suggest that Bauer moved aggressively into
Taylor’s personal space after he stood up. Taylor leaned back in
his chair, away from Bauer. The door to Bell’s office had been
closed for most of the meeting, but after Bauer stood up, Bell
proceeded towards the door in order to open it. The meeting
ended and Bauer left the office. It is undisputed that during this
exchange, Bauer did not touch Taylor. In addition, Bauer did not
make any statements threatening physical or other harm to Tay-
lor, Bell, or anyone else. There is no claim that he attempted to

2 The area was a tight fit for Bauer, who is 5’11” and weighs 250
pounds, and Taylor, who is 5’10” and weighs 260 pounds.
strike anyone or raised his hands as if preparing to do so. Bauer
had not refused a direction from Taylor or Bell to leave the meet-
ing or otherwise end the confrontation.
The above account of the December 13 meeting is largely con-
sistent with the testimonies of all three of those present. There
were, however, a number of respects in which the accounts of
the three witnesses were contradictory regarding potentially rel-
evant aspects of the meeting. One contradiction concerns
Bauer’s testimony that while he directed profanity at Taylor in
the office, he did not do so in the presence of the salaried engi-
neers outside Bell’s door. Bell and Taylor, on the other hand,
testified that Bauer continued yelling “fuck you” in the presence
of those employees as he walked out into the area beyond Bell’s
office door. As is discussed later in this decision, and as counsel
for both parties recognize in their briefs, the question of whether
an employee’s outburst towards supervisors or managers takes
place in the presence of other employees is a factor that may bear
on whether the employee’s otherwise protected activity forfeits
that protection. In this case, I credit Bauer’s testimony that he
did not yell profanities at Taylor while in the presence of other
employees. (Tr. 36–37.) The credibility of Taylor’s and Bell’s
contrary trial testimony was undermined by the written accounts
that they prepared close in time to the event. In the written ac-
count that Taylor prepared the day after the meeting, he states
that Bauer directed profanity at him, then said “this meeting is
done and walk[ed] out the door.” Respondent’s Exhibit 7 (R.
Exh. 7). In the account that Bell prepared the same day as the
meeting, she states that after Bauer cursed at Taylor, “I stood up,
opened the door to my office and told him that this meeting is
done and that he needs to leave and Josh[ Bauer] stormed out.”
Respondent’s Exhibit 3 (R. Exh. 3). In neither statement did
Taylor or Bell claim, as they did at trial, that Bauer cursed or
yelled in the presence of the employee’s outside Bell’s office, or
even after Bell opened the door to the office. In addition, I note
that the Respondent did not provide corroborating testimony or
statements from any of the engineering employees who they sug-
gest would have heard Bauer yelling and cursing. They did not
even identify any such employee by name. For these reasons, I
find the trial testimony of Taylor and Bell that Bauer cursed at
Taylor while in the presence of other employees to b less credible
than Bauer’s contrary testimony.
There was also contradictory testimony on the subject of who
declared an end to the meeting. According to Bauer, he was the
one who stated that the meeting was over. (Tr. 36.) Bell testified
that she was the one who ended the meeting. The written state-
ment that Taylor, the Respondent’s other witness on this point,
completed shortly after the event supports Bauer’s testimony, ra-
ther than Bell’s testimony, in this regard. (R. Exh. 7.) At trial,
Taylor reversed himself and aligned himself with Bell, stating
that Bell was the one who declared that the meeting was over.
(Tr. 116.) Under the circumstances here, I credit Bauer’s testi-
mony that he was the one who stated that the meeting was over.
At any rate, even if I were to find that Bell was the one who
declared the meeting over, the evidence would show that Bauer
complied by immediately leaving the office. There was no
3 Taylor did not testify about his own recollection of the incident in-
volving the sick employee.
NEXTEER AUTOMOTIVE CORP. 7
testimony that Bauer refused to end the confrontation after being
directed to leave the office or otherwise end the meeting.
In its brief, the Respondent’s counsel asserts again and again
that at the end of the meeting Bauer was standing over Taylor
with his “fists balled up.” (R. Br. pp. 5, 7, 17, 18.) The idea that
Bauer made fists as he stood over Taylor is completely the in-
vention of Respondent’s counsel. The only mention in the trial
transcript of Bauer “balling up his fists” is in counsel’s own
opening statement. (Tr. 14–15.) The supposedly supporting
transcript citations that counsel provides in the Respondent’s
brief—to transcript pages 80 and 108—refer instead to Bauer
pointing at Taylor, not to him making fists. In response to a lead-
ing question by Respondent’s counsel, Bell did agree that at
some point during the 10-minute meeting Bauer “clenched” his
fists. (Tr. 81.) This bit of testimony, even if credited, does not
provide evidence for the picture that Respondent’s counsel tries
to paint, because the testimony does not relate to the time when
Bauer was standing and addressing Taylor. In fact, Bell’s con-
temporaneous written account explicitly states that Bauer was
sitting when he clenched his fists (R. Exh. 3), and her more spon-
taneous trial testimony had Bauer squeezing a pen with both
hands during the meeting. (Tr. 76, 79.) In any case, even as-
suming that Bauer clenched his fists while sitting at the meeting,
there is no testimony that he raised his fists or otherwise gave
any indication that he was preparing to use clenched fists to
strike Taylor.
Taylor testified that he was concerned that Bauer would as-
sault him during the December 13 meeting. Under relevant prec-
edent, the Board determines whether conduct is threatening by
applying an objective standard, and so Taylor’s claim that he
subjectively felt threatened, even if credited, would be of little,
if any, relevance.4 At any rate, Taylor’s testimony that he felt
threatened with physical violence is self-serving and not credible
based on the record here. While Taylor claims he felt threatened
with physical violence when Bauer stood, Taylor did not himself
stand up or raise his hands in a protective gesture. (Tr. 87.) In-
deed in the written statement Taylor prepared shortly after the
incident, and well before testifying, he reported that he remained
calm during the confrontation with Bauer. (R. Exh. 7.) Taylor
conceded that he knew of no conduct by Bauer involving physi-
cal violence during Bauer’s 8 years with the Respondent. The
two men are comparable in height and weight. See, supra, fn. 2.
After the meeting, Taylor did not contact security or law enforce-
ment officials to report the incident or request protection from
Bauer. Although the Respondent’s standard procedure when an
employee is suspected of making a threat is to suspend the of-
fending employee pending an investigation, the Respondent did
not find it necessary to suspend Bauer after the meeting and the
Respondent makes no claim that Taylor asked that Bauer be sus-
pended. Rather, Bauer continued to have his usual access to the
facility until the time that the Respondent discharged him 6 days
later. I also find that Taylor palpably strained to describe Bauer’s

4 The Board uses an objective standard, rather than a subjective stand-
ard, to determine whether the conduct in question is threatening. Plaza
Auto Center, Inc., 360 NLRB 972, 974 (2014).
5 Shop rule 9 prohibits “assaulting, threatening, intimidating, coerc-
ing or interfering with supervision.” The Respondent’s global workplace
behavior in the most inflammatory terms. For example Taylor
testified, regarding the complaints that Bauer made during the
meeting, that Bauer “came in firing, firing, and firing.” (Tr.
106.) Taylor’s effort to somehow equate a union official verbal-
izing union concerns with that official’s use of a firearm is over-
reaching. Moreover, Taylor’s testimony that Bauer was being
“so aggressive” as soon as the meeting started, Id., is hard to
square with his testimony that when Bauer and himself first ar-
rived at Bell’s office they had a conversation about things out-
side of work and had no issues. (Tr. 113.) For these reasons, and
based on the record as whole, I consider Taylor a particularly
biased witness, prone to exaggeration.
F. Respondent Discharges Bauer
After the December 13 meeting in her office ended, Bell con-
tacted Pruitt and told him that Bauer had been threatening and
intimidating during the meeting. Pruitt advised Bell to “get some
statements together.” Bell prepared a statement after discussing
the matter with the Respondent’s labor attorney, Tamika
Frimpong. In addition, Bell obtained a statement about the meet-
ing from Taylor. Subsequently, the Respondent had a confer-
ence call about the matter. The participants were Bell, Pruitt,
Frimpong, and Tony Biermann (general director of human re-
sources for North America). They decided that Bell would hold
a “fact finding” interview with Bauer, that she would report
back, and a group decision would be made about discipline.
On December 15, Bell held a fact finding interview with
Bauer that was also attended by Frost. During this interview,
Bauer admitted that, at the December 13 meeting, he had raised
his voice. Bell asked Bauer what was said. Bauer responded
“words.” According to Bell’s notes of the interview (R Exh. 4),
Bauer explained that he used those “words” because manage-
ment had been “failing to acknowledge the Union wanting a safe
and sanitary work environment” and that he was “trying to de-
fend” union members. Bell reported back to Pruitt about the in-
terview. Pruitt testified that “we weighed the information, came
to a group decision on what needed to be done.” According to
Pruitt, he concluded that Bauer had “stepped over the line.”
At a meeting on December 19, 2017, the Respondent informed
Bauer that the Respondent had decided to terminate his employ-
ment. The discharge meeting was conducted by Bell and Sa-
vanna West, who like Bell was a human resources business part-
ner. Bauer and Frost were present at the meeting. The Respond-
ent provided Bauer with paperwork stating that he was being dis-
charged for violating shop rule 9 and the Company’s workplace
violence policy.5 During the 6-day period leading up to the dis-
charge, the Respondent had not taken any action to protect Tay-
lor or others from Bauer. Pruitt conceded that Bauer did not pose
an immediate danger and that it was not necessary to suspend
him or contact security or law enforcement about his statements
or actions on December 13. (Tr. 183,186.)
The record evidence regarding the Respondent’s disciplinary
responses to conduct similar to Bauer’s is very thin and does not
violence policy prohibits a variety of activities defined as violence, in-
cluding: possessing weapons or dangerous devices, bullying, stalking,
making threats, causing harm to people or property, and “creat[ing] an
intimidating, offensive, or hostile environment.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
demonstrate that its rules or policies were, or were not, applied
selectively in this case. While testifying, Bell and Pruitt both
made conclusory statements that the decision to discharge Bauer
was consistent with the way the Respondent had handled other
cases. Both also denied that Bauer was discharged because he
was a union official or because he raised workplace concerns.
(Tr. 88–89, 91–92.) On the other hand, Frost, who was a union
official at the Respondent from 2011 until June 2018, testified
that employees and supervisors at the plant use profanity at the
facility every day and that discipline is imposed for this “very
rarely.” Frost discussed one instance in which a human re-
sources staffer told her that the grievance she was presenting was
“bullshit” and “fucking ridiculous.” Frost complained about the
staffer’s remarks to Pruitt, and Pruitt later told Frost that the mat-
ter was “resolved.” According to Frost, the staffer was not dis-
ciplined and, in fact, received a promotion a few months later.
In 2013, Bauer himself, prior to becoming a union official, called
his supervisor a “pompous jackass” and was cited under shop
rule 9. For that conduct, Bauer’s punishment was a 2-week sus-
pension, later reduced to a 1-week suspension.
The Respondent introduced disciplinary reports from 2016
and 2017, which indicated that 13 individuals other than Bauer
were discharged under the shop rules and policy against work-
place violence.6 The record does not reveal whether, as had been
the case with Bauer’s prior disciplines, the Respondent subse-
quently reduced the level of discipline imposed on these individ-
uals. Moreover, these reports are very bare bones and do not
provide details sufficient to show that the conduct involved in
any of the cases was comparable to Bauer’s. To the extent that
the details provided in some instances do permit a comparison,
they indicate that the conduct involved was more severe than
Bauer’s—involving either an actual assault or an express threat.
See, e.g., R. Exh. 24 (employee Hood sent text threatening to
“beat the fuck out of” coworker); (R. Exh. 25) (noting that em-
ployee Brown admitted to assaulting a member of management);
Id. (employee Williams assaulted his group leader); Id. (em-
ployee Allen threw water at his supervisor); Id. (employee Smith
makes physical conduct with a manager while making vulgar
comments).
III. DISCUSSION
A. Section 8(a)(3) and (1): Discharge of Bauer
The General Counsel alleges that, pursuant to the framework
set forth in Atlantic Steel, 245 NLRB 814 (1979), the Respond-
ent’s discharge of Bauer violated Section 8(a)(3) and (1) of the
Act because that action was taken based on Bauer’s protected
activity at the December 13 meeting and nothing Bauer did in
the course of that activity caused him to forfeit the the Act’s pro-
tection. The Respondent does not dispute that it discharged
Bauer for his conduct in the course of his otherwise protected
union activity on December 13,7 and agrees that the Atlantic

6 The disciplinary reports submitted by the Respondent include one
additional report, but that report makes no reference to violent or threat-
ening conduct or to the rules concerning such conduct. See R Exh. 24
(Boykins).
7 I agree that Bauer was engaged in protected union activity at the
December 13 meeting. Bauer attended the meeting in his capacity as a
Steel framework is applicable but argues that under that frame-
work Bauer’s outburst caused him to forfeit NLRA protection.
The determination about whether an employee’s conduct in the
course of otherwise protected activity is “sufficiently egregious
or opprobrious” to forfeit NLRA protection is based on a balanc-
ing of four factors: (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee's out-
burst; and (4) whether the outburst was, in any way, provoked by
an employer's unfair labor practice. 245 NLRB at 816; see also
Meyer Tool, Inc., 366 NLRB No. 32, slip op. at 1 fn.2 (2018)
(same), Postal Service, 360 NLRB 677, 677 fn. 2 and 683
(2014), and Stanford Hotel, 344 NLRB 558 (2005) (“When an
employee is discharged for conduct that is part of the res gestae
of protected concerted activities, the pertinent question is
whether the conduct is sufficiently egregious to remove it from
the protection of the Act.”). This framework balances employ-
ees’ rights under Section 7 of the Act and the employer’s inter-
ests in maintaining workplace order and discipline. Triple Play
Sports Bar & Grille, 361 NLRB 308 (2014), affd. 629 Fed.Appx.
33 (2d Cir. 2015); see also Piper Realty, 313 NLRB 1289, 1290
(1994) (“[E]mployees are permitted some leeway for impulsive
behavior when engaging in concerted activity, [but] this leeway
is balanced against an employer’s right to maintain order and re-
spect.”). After considering the relevant factors, I find that
Bauer’s conduct during the course of otherwise protected activi-
ties on December 13 fell well short of being so egregious or op-
probrious as to cause him to forfeit the protection he was other-
wise entitled to as a union official engaged in protected union
activity.
The first factor, the place of the discussion, weighs heavily in
favor of continued protection. The conduct that the Respondent
points to—Bauer’s profane language, raised voice, pointing—all
took place in the private office of Bell (a human resources offi-
cial) with only Bauer, Bell, and Taylor present. The door to the
office was closed during the discussion. To the extent that the
door may have been open at the very tail end of Bauer’s interac-
tion with Taylor, this would be because Bell, not Bauer, chose to
open it. In such circumstances, the Board has repeatedly found
that the location of the discussion weighs against forfeiture of the
NLRA’s protection. “An employer’s interest in maintaining or-
der and discipline in his establishment is affected less by a pri-
vate outburst in a manager’s office away from other employees
than an outburst on the work floor witnessed by other employ-
ees.” Plaza Auto Center, 360 NLRB 972, 978 (2014). There-
fore, the Board has “’regularly observed a distinction between
outbursts under circumstances where there was little if any risk
that other employees heard the obscenities and those where that
risk was high.’” Id., quoting NLRB v. Starbucks Corp., 679 F.3d
70, 79 (2d Cir. 2012); see also, Success Village Apartments, 347
NLRB 1065, 1069 (2006) (protection not forfeited when union
representative yells and uses crude language during meeting in
union official and discussed union issues such as the processing of griev-
ances, his access to employees for representational purposes, unit mem-
ber safety, and the Respondent’s use of non-unit employees to perform
bargaining unit work.
NEXTEER AUTOMOTIVE CORP. 9
manager’s private office) and Stanford Hotel, 344 NLRB at 558
(where outburst occurred in secluded area behind a closed door,
this weighs in favor of continued protection, even though one
other employee overheard the outburst). There were no unit em-
ployees, or other rank-in-file employees, present in the room as
spectators to Bauer’s profane statements to Taylor. There were
some salaried, nonbargaining unit employees, working in the
area outside Bell’s office, but none of those employees stated
that they heard, or otherwise witnessed, Bauer’s conduct. In-
deed, the Respondent does not name a single individual, other
than Bell and Taylor, who it claims witnessed the conduct. I find
that it is unlikely that any other employee heard the conduct.
Moreover, as demonstrated by some of the cases cited above, the
location of a profane outburst weighs in favor of continued pro-
tection as long as there is “little if any risk that other employees”
heard it, even if the outburst is, in fact, inadvertently overheard.
See Plaza Auto, supra, and Stanford Hotel, supra.
There is, moreover, no indication on the record that Bauer ex-
pected or hoped that other employees would witness his conduct.
His outburst was impulsive and not the result of an improper mo-
tive to undermine discipline by making a show of challenging a
supervisor on the shop floor. The fact that Bauer’s obscenities
were impulsive rather than the product of an improper motive
weighs in favor of continued protection. Prescott Industrial
Products Co., 205 NLRB 51, 51–52 (1973) (continued protec-
tion when outburst results from “animal exuberance” not an im-
proper motive), enfd. 500 F.2d 6 (8th Cir. 1974); see also Plaza
Auto, 360 NLRB at 978 (employee’s right to engage in protected
activity permits some leeway for impulsive behavior).
I find that 'he second Atlantic Steel factor—the subject matter
of the discussion—also weighs heavily in favor of continued pro-
tection. The meeting had been arranged for the purpose of ad-
dressing important issues related to the interests and welfare of
bargaining unit employees, including: Bauer’s allegation that su-
pervisors were interfering with his ability to provide representa-
tion to bargaining unit employees, the employer’s frequent use
of nonunit individuals to perform bargaining unit work, and
safety. In addition, the subject matter of the discussion provides
context that favors continued protection. Specifically, I note that
the subject matter that the December 13 meeting was called to
address included Bauer’s frustration with what he considered to
be the Respondent’s dismissive treatment of his efforts to repre-
sent employees. However, Taylor’s dismissive treatment of
Bauer’s concerns at the meeting did nothing to calm that frustra-
tion, but rather aggravated it. When Bauer expressed concern
about safety, Taylor, by his own account, did not propose a way
of addressing those concerns, but rather dismissed the safety
concerns by stating that while Bauer was always talking about
safety he himself was not wearing the proper type of shoes. Tay-
lor even attempted to subject Bauer to an impromptu inspection
of his shoes. When Bauer became emotional while discussing a
unit employee who had reportedly been forced, with Taylor’s
knowledge, to continue working in her own vomit, Taylor did
not express concerns or an interest in improving the employer’s
approach, but dismissed Bauer by commenting to Bell that he
could not “get anything done” because Bauer was “just so hos-
tile.” When Taylor made these dismissive comments to Bauer on
December 13, during the very meeting that was called to discuss
Bauer’s frustration over the Respondent’s dismissive treatment
of him, it arguably constituted a provocation. The nature of an
employee’s outburst is examined in the context in which it oc-
curred, and here the subject matter of the discussion provides
context that weighs in favor of continued protection.
I find that the third factor, the nature of the outburst, also
weighs in favor of continued protection. Bauer used crude lan-
guage, but he did not engage in any physical violence, or even
touch, anyone at the December 13 meeting. He did not make a
threat, either express or implied. Moreover, he did not improp-
erly prolong the confrontation, or refuse a direction to end it.
Although the Respondent claims that Bauer’s behavior was
threatening, the Respondent did not act consistently with that
claim. It did not, for example, suspend Bauer pending investi-
gation as is its practice when an employee is suspected of making
a threat. The Respondent was sufficiently unconcerned with
Bauer’s outburst, that it did not contact its own security, much
less law enforcement. This is not surprising given that Bauer,
during his 8 years with the Company, had sometimes been ver-
bally volatile, but had never been known to be violent. See Plaza
Auto Center, 360 NLRB at 976 (outburst not threatening where,
inter alia, employee had no history of violent behavior).
Bauer’s outburst was a spontaneous expression of his frustra-
tion with management’s response to the concerns he was raising
on December 13, and not a premeditated diatribe that was calcu-
lated to, or that reasonably would, either intimidate Taylor or un-
dermine discipline. It is true that Bauer directed profanity at
Taylor, a supervisor, during his outburst. However, this is a type
of outburst for which employees are granted leeway when, as
here, it occurs in the course of otherwise protected activity. As
the Board explained in Plaza Auto, such leeway is warranted be-
cause the language of the industrial workplace “is not the lan-
guage of polite ‘society,’” and “[t]he protections [that] Section 7
affords would be meaningless were [the Board] not to take into
account the realities of industrial life and the fact that disputes
over wages, hours, and working conditions are among the dis-
putes most likely to engender ill feelings and strong responses.”
360 NLRB at 978 (internal citations omitted).
In its brief, the Respondent repeatedly makes reference to the
fact that Bauer and Taylor were in close proximity during
Bauer’s outburst and gives the impression that Bauer had moved
towards Taylor in a threatening way. However, the record indi-
cates that Bauer had no choice but to be close to Taylor given the
tight confines of the office. Bauer was 12 to 16 inches away
from Taylor when he engaged in the conduct that the Respondent
cites to justify his termination, but throughout the meeting the
two had already been only 12 inches apart while sitting in two
guest chairs in Bell’s office. Photographs of Bell’s office show
that the area for visitors was very confined. Under these circum-
stances, I reject the Respondent’s suggestion that the proximity
of the two men indicates that Bauer moved into Taylor’s per-
sonal space in order to threaten or intimidate him. Under similar
circumstances, in Plaza Auto, the Board found that the fact that
an employee’s outburst had included standing and pushing his
chair aside was, when viewed objectively, not threatening given
that the tight confines of the office would have made it difficult
for the employee to stand up without pushing the chair. 360
NLRB at 976. In another similar case, Alton H. Piester, LLC, an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
employee retained the protection of the Act even though he rose
and took a step towards the employer’s agent given that the tight
confines of the office rendered it difficult to move without ap-
proaching that individual. 353 NLRB 369, 374 (2008), enfd. 591
F.3d 332 (4th Cir. 2010).
In its brief, the Respondent cites cases in which it was found
that an employee who, like Bauer, used profanity during other-
wise protected activity, forfeited the protection of the Act. (R.
Br. at pp. 15 ff.) Those cases, unlike the instant one, concerned
profane outbursts made in the presence of others and under cir-
cumstances that threatened to undermine the employer’s author-
ity. For example, the Respondent cites Waste Management of
Arizona, Inc., 345 NLRB 1339 (2005). In that case, the Board’s
decision that protection was forfeited specifically relied on the
fact that, even after a manager repeatedly told the employee to
move the profane confrontation to a private office, the employee
prolonged the confrontation in an area where employees and su-
pervisors were gathered. Id. at 1340. Bauer and Taylor, on the
other hand, were already in Bell’s private office out of the pres-
ence of other employees, and Bauer did not refuse an order to
move or end the confrontation. The Respondent also relies on
Aluminum Company of America, 338 NLRB 20, 20–22 (2002).
The employee who forfeited protection in that case was still a
probationary employee and his profane outburst occurred in a
break room where he was surrounded by multiple employees and
a supervisor. Some of the employees not only heard the profane
outburst, but found it disturbing enough that they complained
about it to the employer. Moreover, profanity was not common
or tolerated in the workplace involved in that case. In Piper Re-
alty, 313 NLRB at 1289–1290, another case relied on by the Re-
spondent, the employee continued his profane outburst towards
a supervisor even after the supervisor repeatedly directed him to
end the confrontation and leave to perform a work assignment.
His profane outburst, moreover, was made within the hearing of
employees who testified that they were disturbed by it and who,
in one case, relocated to escape hearing it. Additionally, in Piper
the employee not only called his a supervisor a profane name,
but also asked the supervisor if he “had a problem”—a question
that, under the circumstances, smacked of an invitation to esca-
lated, possibly physical, conflict. In the instant case, Bauer out-
burst was not heard by other employees, he did not persist after
being directed to end the confrontation, and he did not make any
statements that suggested an invitation to escalated conflict.8
The Respondent also relies on Trus Joist MacMillan, 341
NLRB 369 (2004), a case in which an employee forfeited pro-
tection, but under circumstances that are far removed from
Bauer’s. In Trus Joist the employee engaged in a premeditated
diatribe for the express the purpose of undermining and embar-
rassing an assistant manager in front of others. Id. at 370–372.
Indeed in Trus Joist, the employee had arranged for the presence
of others during the meeting as part of his plot to “call [the

8 The Respondent does not cite Stanford Hotel, supra, but I note that
in that case the Board, while finding that the employee retained NLRA
protection, also stated that the employee’s calling a supervisor a “fucking
son of a bitch” weighed against retaining protection. In that case, how-
ever, the Board’s assessment of the language was based on a finding that
the employer—a hotel—was a work setting where profanity was inap-
propriate and uncommon. 344 NLRB at 559. Bauer, on the other hand,
assistant manager] a liar and embarrass him.”9 Moreover, unlike
Bauer, the employee continued his profane outburst even after
the employer repeatedly directed him to end the confrontation.
In Trus Joist, the employee’s outburst was not the sort of impul-
sive behavior to which the Board permits “leeway,” but rather
was a calculated attempt to undermine the employer’s ability to
maintain order and respect in the workplace. See Piper Realty,
313 NLRB at 1290 (“employees are permitted some leeway for
impulsive behavior when engaging in concerted activity”) and
Prescott Industrial Products Co., 205 NLRB at 51–52 (contin-
ued protection for outburst resulting from “animal exuberance”
as opposed to improper motive); see also Plaza Auto Center v.
NLRB, 664 F.3d 286, 292–293 (9th Cir. 2011) (distinguishing
Trus Joist on the basis that “the employee in that case instigated
the meeting for the express purpose of embarrassing a manager,
which “accentuate[d] and exacerbate[d] the disruptive effect of
[the employee's] outburst”).
It is telling that the Respondent, in order to argue that the na-
ture of Bauer’s outburst weighs against continued protection, re-
lies on cases such as Waste Management of Arizona, supra, Alu-
minum Company of America, supra, Piper Realty, supra, and
Trust Joist, supra, that concern conduct that was so different than
Bauer’s. In fact, the Board has not been unrealistic or prudish
about the use of foul language in industrial settings, including
about the use of variations on the word “fuck.” In Pier Sixty, an
employee retained NLRA protection after, in a Facebook post
attacking a manager’s conduct, he called the manager a “nasty
mother fucker,” and added “[f]uck his mother and his entire
fucking family!!!” 362 NLRB 505, 506 (2015), enfd. 855 NLRB
115 (2d Cir. 2017). In Coors Container Company, an employee
who engaged in protected activity did not forfeit protection by
calling two agents of the Respondent “mother-fuckers.” 238
NLRB 1312, 1320 (1978). Although Bauer’s outburst was in-
temperate in nature, it was not so egregious or opprobrious as to
warrant stripping his union activity of the protection to which it
was otherwise entitled under federal law. The third Atlantic Steel
factor weighs in favor of continued protection.
The fourth and final Atlantic Steel factor is whether the mis-
conduct was provoked by the employer's unfair labor practices.
The analysis under this factor is not confined to circumstances in
which the employer’s provocation is actually alleged to be an
unfair labor practice, but rather includes circumstances in which
the employer evinced an intent to interfere with protected rights
or escalated the confrontation. See Meyer Tool, Inc., 366 NLRB
No. 32, slip op. at 13; Network Dynamics Cabling, Inc., 351
NLRB 1423, 1429 (2007); Overnite Transportation Co., 343
NLRB 1431, 1438 (2004). In this case, Bauer was present at the
meeting to complain about employer conduct that, if proven,
would arguably constitute an unfair labor practice. However,
that potential unfair labor practice was not alleged in a Board
complaint and was not fully litigated before me. The record in
used profanity in an industrial setting, where the Board recognizes that
the language of “polite society” does not prevail, and in a facility where
profane language was, in fact, widely used and generally tolerated.
9 In that case, the employee called the assistant manager a liar, a “ly-
ing bastard,” and, repeatedly, a “prostitute.” At one point he also grabbed
his crotch and said “I have your manhood hanging right here.” Trus Joist
MacMillan, 341 NLRB at 370–371.
NEXTEER AUTOMOTIVE CORP. 11
this case is insufficient to permit a finding as to whether the su-
pervisory dismissiveness and interference and other conduct that
Bauer was complaining about constituted unfair labor practices.
That being said, I do find, as discussed above in reference to the
second Atlantic Steel factor, that Taylor’s responded somewhat
dismissively to concerns raised by Bauer during the December
13 meeting. I find that Bauer’s outburst in response to dis-
missive comments at a meeting held to discuss, inter alia,
Bauer’s frustration about the Respondent’s prior dismissive
comments, was not wholly unprovoked. Given that it has not
been alleged or proven that the conduct Bauer was complaining
about at, or that he experienced during, the December 13 meeting
constituted unfair labor practices, I find that this final factor
weighs in the Respondent’s favor. However, Bauer’s outburst
was not wholly without provocation and this factor weighs only
lightly in the Respondent’s favor.
The first two Atlantic Steel factors weigh heavily in favor of
Bauer retaining NLRA protection, and the third factor also
weighs in favor of continued protection. The fourth factor
weighs in favor of forfeiture of protection, but it does so only
lightly. I find that the three factors favoring the retention of
protection outweigh the one factor marginally favoring forfei-
ture. Therefore, I find that Bauer retained the NLRA’s protec-
tion for his actions during the December 13 meeting, and that the
Respondent violated Section 8(a)(3) and (1) of the Act when, on
December 19, 2017, it terminated him for those actions.
B. Section 8(a)(4) and (1): Discharge of Bauer
Section 8(a)(4) and (1) of the NLRA makes it unlawful for an
employer “to discharge . . . an employee because he has filed
charges or given testimony under this Act.” The General Coun-
sel alleges that Bauer’s discharge violated the NLRA not only
because, as found above, the Respondent based the discharge on
Bauer’s protected union activity during the December 13 meet-
ing, but also because the discharge was discriminatorily based
on Bauer’s prior charges and testimony under the NLRA. The
Board applies the analysis set forth in the Wright Line decision
to allegations that an employer violated Section 8(a)(4) and (1)
by discriminating against “an employee because he has filed
charges or given testimony” in a Board proceeding. Verizon, 350
NLRB 542, 546–547 (2007), American Gardens Mgmt. Co., 338
NLRB 644, 644–645 (2001), McKessen Drug Co., 337 NLRB
935, 936 (2002): Gary Enterprises, 300 NLRB 1111, 1113
(1990), enfd. mem. 958 F.2d 368 (4th Cir. 1992). Under the
Board's Wright Line analysis, the General Counsel bears the ini-
tial burden of showing that the Respondent's decision to take ad-
verse action against an employee was motivated, at least in part,
by considerations prohibited by the NLRA. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. (1982), approved in NLRB v. Transportation
Corp., 462 U.S. 393 (1983). The General Counsel may meet this
burden by showing that: (1) the employee engaged in union or
other protected activity, (2) the employer knew of such activities,
and (3) the employer harbored animosity towards the protected
activity. Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1184–
1185 (2011); ADB Utility Contractors, 353 NLRB 166, 166–167
(2008), enf. denied on other grounds 383 Fed.Appx. 594
(8th Cir. 2010); Intermet Stevensville, 350 NLRB 1270, 1274–
1275 (2007); Senior Citizens Coordinating Council, 330 NLRB
1100, 1105 (2000); Regal Recycling, Inc., 329 NLRB 355, 356
(1999). If the General Counsel establishes discriminatory mo-
tive, the burden shifts to the employer to demonstrate that it
would have taken the same action absent the protected con-
duct. Camaco Lorrain, supra; ADB Utility, supra; Intermet Ste-
vensville, supra; Senior Citizens, supra.
In this case, the record demonstrates that Bauer filed prior un-
fair labor practices charges against the Respondent and that the
Respondent was aware of those charges. However, I find that
the General Counsel has not established the third element of its
initial Wright Line burden, i.e., that the Respondent bore animos-
ity towards Bauer’s participation in NLRB proceedings. To es-
tablish this element, the General Counsel relies primarily on
statements regarding Bauer’s NLRB activity that Pruitt and Bell
allegedly made at the November 9 meeting. For the reasons that
are discussed above in the statement of facts, the record does not
demonstrate that Pruitt and Bell more likely than not made those
statements. In addition, the General Counsel did not establish
animus by demonstrating that the Respondent gave significantly
more favorable treatment under its shop rules to employees who
had comparable profane outbursts, but who had not previously
filed charges with, or given testimony to, the NLRB. The Gen-
eral Counsel and the Charging Party argue, in particular, that the
Respondent failed to follow its progressive discipline policy in
addressing Bauer’s December 13 conduct, whereas it followed
its progressive discipline policy when he had been rude or pro-
fane in conversations with supervisors during the period prior to
his involvement with the NLRB. The record does show in-
stances, discussed above in the statement of facts, that occurred
before Bauer filed his NLRB charges and in which he used pro-
fanity during disagreements with supervisors and was suspended
rather than discharged. The evidence regarding the details of
those incidents was insufficiently developed to allow a determi-
nation about whether the infractions were comparable or whether
the shop rules were applied selectively to Bauer’s December 13
conduct. To the extent that the General Counsel’s contention is
that the Respondent departed from a progressive discipline pol-
icy when it discharged Bauer, I find that the record does not show
any such departure. The Respondent was not shown to have a
formalized progressive discipline policy with a schedule of in-
fractions and punishments, or other meaningful parameters, from
which it departed when it discharged Bauer, or which even shed
light on the discharge.
The record does not establish that the Respondent discharged
Bauer because he filed charges or gave testimony under the
NLRA. Therefore, the allegation that the Respondent violated
Section 8(a)(4) and (1) of the Act must be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the NLRA.
2. Local 699, International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America (UAW),
AFL–CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent discriminated in violation of Section
8(a)(3) and (1) of the Act on December 19, 2017, when it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
discharged Bauer based on his protected union activity during a
meeting on December 13, 2017.
4. The record does not show that the Respondent selectively
enforced shop rules because Bauer filed charges or gave testi-
mony under the NLRA, or otherwise discriminated in violation
of Section 8(a)(4) and (1) of the Act when it discharged Bauer.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the poli-
cies of the Act. The Respondent, having discriminatorily dis-
charged Joshua Nuffer-Bauer, must offer him full and immediate
reinstatement and make him 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 Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). The Respondent shall file a report with the
Social Security Administration allocating backpay to the appro-
priate calendar quarters and shall also compensate the discrimi-
natee 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 recommended Order.10
ORDER
The Respondent, Nexteer Automotive Corp., Saginaw, Mich-
igan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against employ-
ees for supporting Local 699, International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO, or any other labor organization.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joshua Nuffer-Bauer full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Joshua Nuffer-Bauer whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge, and
within 3 days thereafter notify Joshua Nuffer-Bauer in writing
that this has been done and that the discharge will not be used

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
against him in any way.
(d) 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 records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Saginaw, Michigan, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region Seven, 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
notices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other elec-
tronic 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 altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since December 19, 2017.
Dated, Washington, D.C. December 10, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT discharge or otherwise discriminate against any
of you for supporting Local 699, International Union, United Au-
tomobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO, or any other union.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
NEXTEER AUTOMOTIVE CORP. 13
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
Joshua Nuffer-Bauer full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges
previously enjoyed.
WE WILL make Joshua Nuffer-Bauer whole for any loss of
earnings and other benefits resulting from his discharge, less any
net interim earnings, plus interest compounded daily.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
WE WILL compensate Joshua Nuffer-Bauer for the adverse tax
consequences, if any, of receiving one or more lump-sum back-
pay awards covering periods longer than 1 year.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful discharge of Joshua
Nuffer-Bauer, and WE WILL, within 3 days thereafter, notify him
in writing that this has been done and that the discharge will not
be used against him in any way.
NEXTEER AUTOMOTIVE CORP.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-215036 or by using the QR code be-
low. 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.